QUESTION: My notes from M'Culloch say that as long as the end is legitimate (enumerated in the Constitution) and consistent with the Constitution, Congress may enact any law. Is that right?
ANSWER: I think that is a fair summary.
QUESTION: In looking at his concurrence in Raich, Scalia seems to be saying that: (1) the "substantial effects" test is not enough in and of itself to bring the case under the Commerce Clause; (2) the Act therefore only regulates intrastate commerce, which in turn is actually a component of a broader interstate commerce regulatory scheme; (3) Congress therefore actually derives its ability to pass the Act through the necessary and proper clause because....; (4) The reason the Act is Constitutional under the Necessary and Proper is that Congress can point to a "legitimate end", intrastate commerce which in turn is a component of a broader regulation of interstate commerce... Is that right?
ANSWER: I think that is generally correct. I think the basic point is that the CSA plainly regulates an interstate commercial activity, and that its sweeping up purely intrastate, non-commercial instances of that activity is necessary and proper because of the difficulty in distinguishing them from the interstate or commercial instances.
QUESTION: My concern is whether or not Congress can come up with some outlandish law that did not fit under any specific enumerated power and simply say its covered under the "necessary and proper clause."
ANSWER: The answer would be no, at least in theory. The N&P Clause can only be used in conjunction with another enumerated power.
QUESTION: In reading Scalia's opinion, it seems that the Necessary and Proper Clause acts as more of a gap filler where the end is enumerated but the specific means may not be.
ANSWER: Right, at least generally. Means generally are not articulated elsewhere, only ends. So the N&P Clause makes clear that all appropriate means to accomplish the enumerated ends are constitutional.
QUESTION: If I am thinking about this correctly.......going to M'Culloch - it seems unclear which enumerated power Congress was acting on. The only options would have been (1) the Commerce Clause since it was a "national bank" or (2) "General Welfare"?
ANSWER: I think those are two prominent ones. I think raising and supporting an army and navy would work, especially at that time. So would coining money, borrowing, and paying the debts of the national government. You are right, though, that Marshall was not clear on this. There was sort of a grab bag. Everyone seemed to accept that, if one accepted the broad meaning of the N&P Clause (as Marshall did), the Bank was an appropriate means to some set of (somewhat undefined) enumerated ends.