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I. INTRODUCTION
I want to emphasize a relatively unnoticed yet crucial change that I think is taking place-the return of the Necessary and Proper Clausel as a distinct ground of constitutional analysis and an intrinsic restraint on federal lawmaking power. The Necessary and Proper Clause gives Congress the power "To make all Laws which shall be necessary and proper for carrying into Execution" Congress's other powers and the powers of the other branches of the federal government.2 This is an enumerated power; the term "implied powers" is a misnomer.
For example, the Necessary and Proper Clause enables Congress to create offices and departments to help the President carry out his Article II powers. Congress cannot encumber or interfere with the President, but it can make laws to help carry into execution the independent "executive Power."3 It is also the Necessary and Proper Clause-not some exaggerated inference from the Article I Tribunals clause,4 nor the mere allusion to congressional power made in the Article III Exceptions ClauseS-that is the principal source of Congress's power to enact laws regarding the federal courts.6
As regards the other two branches, the Clause acts as a ratchet to enhance, but not diminish, each branch's discretion. Thus, although Congress cannot impede, divest, or interfere with the other branches, it can make laws to structure the executive and judiciary and to help in other ways to carry into execution the executive and judicial powers. As applied to Congress's own powers, however, the Clause is not a ratchet; instead, it compounds the discretion given to Congress by the other grants of legislative power. Congress can outlaw mail theft, for example, as a means of promoting the postal system.7 It also can enact a preference for federal tax debts over claims of other creditors as a means of carrying into execution Congress's power to collect taxes,8 even though establishing priority among creditors is otherwise beyond Congress's power.
In her dissenting opinion in the 1985 Garcia case, Justice O'Connor, joined by Chief Justice Rehnquist and Justice Powell, said the following about the Necessary and Proper Clause: "It is through this reasoning"-that is, through the Clause's "telic," means-to-end paradigm-"that an intrastate activity 'affecting' interstate commerce can be reached through the commerce power."9 Justice Thomas made a...