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What does “necessary” mean? And who decides? Reenacting McCulloch v. Maryland

“My colleagues are invisible this evening and I’ve been promoted, apparently,” Justice Breyer quipped from the middle seat on the bench Thursday evening. The Associate Justice was occupying the Chief Justice’s place in the service of his role for the evening: playing Chief Justice John Marshall in the Supreme Court Historical Society’s reenactment of the oral arguments in the historic 1819 case McCulloch v. Maryland.  

Before the oral argument began, Mark R. Killenbeck of the University of Arkansas School of Law introduced the case, which “would have been [a] landmark regardless of the result.” The surface controversy at issue in the case – whether Congress had the authority to establish a national bank, and if so, whether Maryland could levy a tax on the banknotes it issued – was important on its own, but boiling underneath were even more fundamental questions about Congress’s “implied powers,” the Court’s role in reviewing Congress’s determinations of how broadly it could construe its implied powers, and background concerns about slavery. “A Court that was a friend of implied powers was no friend to the South,” Killenbeck explained; a ruling for the bank would tip the balance of power towards the federal government, while a ruling against it would tip the balance towards the states.

Given the breadth and depth of the issues presented by the case, as well as the stakes, it’s perhaps not all that surprising that oral argument spanned forty-five hours over nine days. Thanks to the passage of history, and limiting the questions presented, attorneys Neal Katyal, “representing” James McCulloch, and Jeffrey Bucholtz, on behalf of Maryland, were both able to make compelling arguments of only twenty-five minutes each.

Katyal, playing the role of Daniel Webster, opened his argument by emphasizing that Congress had not created a new bank sub silencio; rather, it was created in the broad light of day, with many of the Framers of the Constitution voting for its passage. The bank was created in 1791 on a twenty-year charter, which expired right before the War of 1812 – a time when, it turned out, having a national bank would be a real help. Although the Constitution did not expressly provide for the creation of a national bank, Katyal argued that Congress would be a “useless” body if it didn’t have the additional resources to execute the powers it was explicitly given, such as borrowing money for war and settling debts. But, the Justices countered, what was necessary about a bank? Katyal responded that having a bank was a convenient means for Congress to achieve its ends.

Furthermore, Katyal argued, the Court should defer to Congress’s view that a bank was necessary: “This Court is thirty years old and made up of unelected judges,” he noted. “Do we really want to give it the power to nullify Congress?” Alluding to Hamdan v. Rumsfeld, the case that he argued in 2006, he queried whether, “[i]f the Court strikes down the bank today, might it say in the future that the president can’t detain enemies in a time of war?” Actually,” Justice Breyer responded, “what your opponent is worried about is slavery.”

During his time at the lectern, Jeffrey Bucholtz offered a straightforward solution: “‘Necessary,’” he posited, “means necessary.” When asked why the Framers in the Constitution hadn’t authorized Congress to make any law that’s convenient to achieving its ends,” Bucholtz characterized the answer as a simple one: if Congress were the judge of its own authority, the Constitution wouldn’t have been ratified. And it was only because of the Necessary and Proper Clause, he reminded the Justices, that people who were worried about too much centralized power voted for the ratification of the Constitution. “If anything is settled, it’s that this Court has the duty to say what the law is. Congress’s view is not conclusive.” Otherwise, he cautioned, “There would be no limit to what Congress could do – it could make everyone eat broccoli” – an allusion to arguments against the Affordable Care Act’s individual mandate.

The decision, which took less than two weeks to flow from Chief Justice Marshall’s quill, was in favor of Congress having implied powers. In ruminating on what a difficult task Marshall was faced with, Justice Breyer reflected on the War of 1812 and “how the history of the country feeds into our interpretation” of the Constitution. He also reflected on how, before the Civil War, “everything, absolutely everything” was infected with the debate over slavery. “The South kept saying, ‘you promised, you promised,’ and the North kept saying, ‘well – we shouldn’t have.’”

The Supreme Court Historical Society’s next event will be Chief Justice Roger B. Taney and the Civil War on October 16.

Recommended Citation: Kali Borkoski, What does “necessary” mean? And who decides? Reenacting McCulloch v. Maryland, SCOTUSblog (Oct. 17, 2014, 9:19 AM),