The second part of commerce clause analysis requires a necessary and proper clause analysis to determine if legislation enforcement is in line with the Constitution. The Constitution provides that Congress may make all laws which shall be necessary and proper to carrying out the execution of the foregoing powers, and all other powers vested by the Constitution, or any department or officer thereof. To prove an act is a valid exercise of the necessary and proper clause, there must be the existence of a constitutionally enumerated, expressed or implied, underlying predicate and that the statute is rationally related to the predicate to a constitutional end must be proven. (Hodel 2). “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. (McCulloch)

Commerce Clause (Part 3)

Executive powers must now be examined and must stem from Congress’ authorization or the Constitution. The issues are whether the president is acting in the scope of power granted by congress or whether the president is violating other constitutional provisions. If a statute grants power, it must be asked whether the statute or the executive’s actions violate the constitution. The president may declare executive privilege.
	To determine if the president has the power he asserts, Jackson sets out three classes of cases to analyze when and to what extent presidential power may be exercised. These classes cover conflicts between the executive and Congress and a fourth class may be implied for judicial power.

Executive Powers

Class 1 has 9 rules of law: 
(1) class 1 is when the president is acting pursuant to an express or implied power granted by Congress, 
(2) when the president acts in class 1, his power is at a maximum, 
(3) when Congress increases executive power, it cannot be inconsistent with the Constitution, 
(4) under the nondelegation doctrine, Congress cannot delegate the unfettered discretion to make laws, 
(5) Congress may not delegate to others legislative function, but may delegate the power to make subordinate rules within limit, all laws does not violate non-delegation doctrine when it provides executive branch with intelligible principles (Grundy), 
(6) The Major Question doctrine allows for an executive agency to act on a major question of economic or political significance only when there has been clear and express direction by Congress, while not giving the agency any legislative power, 
(7) when Congress increases or decreases president’s power, it must be consistent with the bicameralism and presentment requirements of the Constitution, 
(8) when Congress grants the executive power, it may not be exercised inconsistently with other constitutional provisions, and 
(9) the president must act in accordance with the Constitution, procedurally and substantively.

Class 1 Rules

The enforcement powers of Congress have a broad and narrow view. Under the broad view, the drafter intended to give Congress enforcement powers the same level of powers expressed for the necessary and proper clause. Legislation that deters or remedies constitutional violations may be within the scope of Congress’ enforcement power even though in the process it prohibits behavior which is not itself discriminatory and intrudes on the legislative authority given to the states. Enforce by appropriate legislation may mean: to declare, decide, or determine, to create, or to remedy. Congress may expand the scope of statutory rights or create new rights not found in the Constitution. Congress may not dilute or diminish existing Constitutional rights. When Congressional actions may not be appropriate, they may be justified by exceptional conditions. Extraordinary remedies for exceptional conditions must be temporary. The narrow view limits Congress’ enforcement power. Enforce by appropriate legislation only means to prevent or remedy. Nonetheless, to be a valid exercise of Congress’ enforcement power, the necessary and proper clause analysis must be applied.

Enforcement Powers

Class 4: the judicial class. The court typically defers to executive authority during theaters of war, national security, and foreign affairs. In the 20th century, the court deferred to the president granting him plenary power in these areas, whereas the court’s deference for war time powers has been reduced and viewed more critically. The court still gives high deference to executive acts regarding foreign affairs and only limiting powers exercised in furtherance of national security on a rational basis test.

Class 4 Rules

Now, the court has moved towards balancing the executive interests of absolute Presidential immunity with fair judicial administration. Presidential immunity exists over official acts but not unofficial or private acts by the President. The Nixon rule states that the court has the power to declare the law and the president may not circumvent or dimmish that power. Due process demands that for fair judicial administration, in criminal proceedings, the court must have access to all related information. Thus, the President is subject to state criminal subpoenas. (Trump v. Vance). The President may also be subject to Congressional subpoenas per Congress’s implied power to legislate. In determining if congressional subpoenas are related to and in furtherance of a legitimate task of Congress, 4 factors are considered: 
(1) Congress may not rely on the President’s information if other sources could reasonably provide such information. 
(2) The subpoena is no broader than necessary. 
(3) The nature of the evidence produced by Congress to establish the subpoena advances a legitimate valid legislative purpose. 
(4) The Court’s consideration of the subpoena’s burdens imposed on the President.

Executive Interests

Next, Dormant Commerce is an implied rule from a congressional grant of power to regulate interstate commerce under the Commerce Clause. When regulation is a local concern, the impact incidental on interstate commerce, and there is a slight consequential incentive on national matters, the law is within state’s authority to legislate. The law may be challenged if unduly and substantially burdensome on interstate commerce (Pike). The 5-factor balancing test to determine if the law is protectionist in nature or discriminates against out-of-staters to the detriment of interstate commerce are: 
(1) is law subject local rather than national, 
(2) is law a valid exercise of police power, meaning law’s objective was in safety, health, morals, or general welfare of citizens, if yes no bar on law, 
(3) does law burden interstate commerce, 
(4) does law benefit the state, and 
(5) Does the law discriminate against out-of-staters?

Dormant Clause

The 5th factor depends on if the law is facially discriminatory or neutral with a discriminatory purpose or effect. If law prohibits conduct and identifies actors, the law is facially discriminatory and per se constitutional. If the law does not identify actors, the law is facially neutral, and the plaintiff must show that the law is discriminatory in purpose or effect. If successful, the law is discriminatory and creates a protectionist and rebuttable presumption. Burden of proof then shifts to the state to justify law with local benefits and unavailability of nondiscriminatory alternatives (Washington). The court has only recognized one exception to facially discriminatory in Taylor.

Commerce Clause (Part 3)

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