Moller on The Radical Whig Origins of the Horizontal Necessary and Proper Clause

Mark Moller, DePaul University College of Law, is publishing The Radical Whig Origins of the Horizontal Necessary and Proper Clause in volume 72 of the Villanova Law Review. Here is the abstract.

Congress makes laws necessary and proper to carry the powers of the executive and judiciary into execution—so says the “horizontal” Necessary and Proper Clause. Does this make Congress a mere servant to the other branches, one that helps them, from time to time, in the exercise of their own independent powers? Or does it make Congress the ultimate judge of how far those powers extend? Fifty years ago, William Van Alstyne argued for the latter, more robust reading, but his historical support was thin, and today his work is largely forgotten. This Article uncovers overlooked historical evidence for Van Alstyne's forgotten reading in the writings of two jurists who influenced the framing generation: the seventeenth-century parliamentarian Henry Parker, whose arguments seeded a century of Whig constitutionalism, and the eighteenth-century Whig lawyer Roger Acherley, author of one of the more influential works of colonial-era constitutional theory. Both wrote in response to the infamous Ship Money Case. There, the crown had claimed its prerogative power to defend the nation travelled with unreviewable “incidental” powers, or powers “necessary” to the prerogative’s “execution.” In writings separated by a century, Parker and Acherley countered that Parliament must define and authorize royal incidental powers. Their ideas circulated widely in the colonies and shaped major framing-era thinkers. This Whig tradition on incidental powers has striking parallels with Van Alstyne's checks-and-balances reading of the Clause. At a minimum, recovering that tradition ought to restore his reading as an important candidate for originalist construction. The Article closes by considering how this might inform debates ranging from the tariff challenge in Learning Resources v. Trump to criticism of the Presidential Records Act.

Download the article from SSRN at the link.