QUESTION: I'm getting confused when trying to justify congressional authority on some power other than commerce, spending, or tax. Would I turn to the necessary and proper clause or section 5 of the 14th Amendment or something else? Basically, I'm fuzzy on how to explain congressional authority when the statute has nothing to do with money.
ANSWER: A couple of response. First, much of what Congress can regulate using its commerce power need not concern money, at least directly. Recall Wickard v. Filburn. Or Gonzales v. Raich. Even the Civil Rights Act cases from the 1960s -- Heart of Atlanta Motel and McClung -- were not really about money, but instead racial discrimination. Second, yes, if the three powers you mention cannot justify the legislation, we have to look elsewhere, such as Section 5 or the treaty power (or the postal roads power or whatever). Just to be clear, though: the Necessary and Proper Clause is not a "power" by itself. It is about means, not ends. So it can never be invoked by Congress standing alone. Instead, it permits Congress wide latitude in selecting appropriate means once it is resolved that the objective is within Congress's enumerated powers.