Private: In Clarence Thomas' America, the Necessary & Proper Clause is in Jeopardy

column by Sean Kellogg, Editor-at-Large
After spelling out a long list of Congressional powers, Article I, Section 8 of the United States Constitution ends with a Congressional right "[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Known as the Necessary and Proper Clause, the text outlines the basic principle that Congress has all the necessary and proper authority to exercise the specific power grants enumerated throughout the Constitution. It may seem like a somewhat unnecessary clause. Why would the Constitution grant authority to establish post roads if the Congress did not posses the necessary power to do so?

The first Supreme Court case testing the breadth of the Necessary & Proper Clause was written by Chief Justice John Marshall and his Federalist Court regarding Congressional authority to charter a National Bank. McCulloch v. Maryland is now a seminal case for Necessary & Proper jurisprudence, holding, "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." Marshall upheld the Congressional authority to establish the bank by looking to express powers: "lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies," and concluding that the establishment of a bank was a necessary and proper exercise of power in pursuit of these goals.
Fast forward 200 years where the nation is a very different place. Supporters of a strong central government have long since won the argument. The Federal government has used its authority under the Necessary & Proper Clause to bring uniformity to all manner to national goals, in some cases augmenting existing state laws, in others, establishing laws in states who refuse to provide basic rights and causes of action.
Justice Clarence Thomas called the past 200 years of jurisprudence, in particular the past 65 years of post-New Deal constitutional understanding, into question with his sole concurrence in Sabri v. United States. Basim Omar Sabri was charged under 18 U.S.C.