John Armor

The broader importance of this case is its possible application to the current cases challenging the Health Care "Reform" Act. This legal debate is not new, but ancient, going back to the writing of the Constitution. Article I, Section 8, Clause 18 gives Congress the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers." The anti-Federalists, who sought to defeat the Constitution, argued that this clause gave Congress unlimited power. Madison, Jay, and Hamilton argued that this was not a new or separate grant of power, but only the right to carry out the specific powers granted in Article I.

For instance, the power to collect excise taxes included the power to build offices and hire officials. It did not include the power to collect other forms of taxes, such as on income. Congress did pass an income tax law during the Civil War. That was declared unconstitutional and not revived until the Constitution was amended in accord with Article V, by the people through Congress and the states, in 1913.

The Preamble to the Constitution, which the Supreme Court has ruled is not part of its legal language as "the Supreme law," refers to "promot[ing] the general welfare." Anyone who combines that clause with the Necessary and Proper Clause could conclude that Congress, and the president's administration, have the power to do anything they choose, as long as they claim to be promoting the "general welfare." This would give the federal government unlimited powers and make the Constitution a dead letter.

The FCC in this case was relying on its own "necessary and proper clause" to justify doing whatever a majority of the Commission was willing to vote for. Until and unless Congress grants authority to an administrative agency, it lacks power to act.

A similar restriction applies to Congress itself. Until and unless the Constitution grants power to Congress to take a particular action, Congress has no such power. The same goes for executive orders by the President. The same, for that matter, also applies to the Supreme Court itself.

Under the separation of powers and the checks and balances between the three branches of the federal government, each branch has an independent obligation to preserve and protect the Constitution. And when any one or two branches of the government choose to violate that obligation, it is the duty of the remaining branch to bring the other two branches back into line with the Constitution.

That is the lesson that the D.C. Circuit—the first among equals of the U.S. Appeals Courts—has just taught the FCC. It is the same lesson that several Appeals Courts and the U.S. Supreme Court may be about to teach Congress, the president, and a minority of the Supreme Court itself.

The Comcast decision is the handwriting on the wall.

John Armor

John Armor practiced First Amendment law in the US Supreme Court for 33 years and wrote this article at the behest of the American Civil Rights Union.