Chapman University Dale E. Fowler School of Law Professor Celestine McConville’s article, “
The (Not so Dire) Future of the Necessary and Proper Power After National Federation of Independent Business v. Sebelius
” was recently published in Volume 24, Issue 2 of the
William & Mary Bill of Rights Journal

From the abstract:

William and Mary Bill of Rights Journal coverNFIB v. Sebelius has generated much discussion, but too little of it has focused deeply on whether, and the extent to which, the decision will limit the scope of the Necessary and Proper Clause.  Following NFIB, many observers doubtless found themselves asking the same questions they were asking in 1995 after the Supreme Court’s decision in Lopez drew a line in the sand after sixty years of imposing virtually no limits on the federal commerce power:  Was the Court really serious about imposing vigorous federalism limits on one of Congress’s biggest powers?  This article seeks to answer that question, arguing that NFIB will have a relatively minor overall impact on the scope of the necessary and proper power, even if the Court remains committed to judicial enforcement of federalism and even in the absence of a personnel change on the Court.    At first blush, it appeared that NFIB could have a dramatic impact, as it seemed to apply new and stringent limits on the necessary and proper power when it invalidated the individual mandate.  While the Court recently warned that federalism limits the reach of the necessary and proper power, it had not, until NFIB, gone as far as suggesting that Congress may not regulate indirectly through the necessary and proper power that which it may not regulate directly through an enumerated power.  Nevertheless, this article explains that, viewed in the light of decisions handed down leading up to and following NFIB, the decision does not signal a drastic change in doctrine.  The Necessary and Proper Clause was not the target of the Court’s federalism ire in NFIB, but rather was the victim of the Supreme Court’s continuing federalism campaign to rein in the federal commerce power.   As a result, it should be business as usual in cases where Congress seeks to enforce an enumerated power other than commerce, while use of the power in combination with the commerce power likely will trigger closer scrutiny.  And if the power is used so aggressively as to transform the Necessary and Proper Clause into a general police power, then it’s game over, no matter what enumerated power Congress is trying to enforce.

Professor McConville
joined the Chapman faculty in August 2000. While at Chapman, she has received the Professor of the Year award three times. She served as Associate Dean for Administrative Affairs from June 2007 to May 2009. Before coming to Chapman, Professor McConville was a visiting faculty member at Case Western Reserve School of Law, where she received the Student Bar Association’s Teacher of the Year award for 1999. She earned her B.A. from Boston University, graduating
magna cum laude
, and her JD from Georgetown University Law Center, graduating
magna cum laude
in the top one percent of her class. She was selected for Order of the Coif and served as an editor for the
Georgetown Law Journal’s Criminal Procedure Project
. After law school, Professor McConville served as a law clerk to Chief Justice William H. Rehnquist at the Supreme Court of the United States. She also clerked for Judge Cynthia Holcomb Hall on the United States Court of Appeals for the Ninth Circuit, and for Judge Donald C. Nugent on the United States District Court for the Northern District of Ohio. Following her clerkship with Chief Justice Rehnquist, Professor McConville practiced law for three years as an associate with Shea & Gardner in Washington, D.C., working primarily on litigation matters involving constitutional, labor, banking and aviation law issues. Professor McConville teaches Constitutional Law, Federal Courts, and Wills and Trusts. Her current research and writing projects are in the constitutional law and death penalty areas. Other articles include “
Yikes! Was I Wrong? A Second Look at the Viability of Monitoring Capital Post-Conviction Counsel
,” published in the
Maine Law Review
, and “
The Meaninglessness of Delayed Appointments and Discretionary Grants of Capital Postconviction Counsel
,” published in the
Tulsa Law Review

See more of Professor McConville’s scholarly writing