The doctrinal limits of “necessary” in the Necessary and Proper Clause

Randy Barnett writing at The Volokh Conspiracy: “The ‘necessary’ prong of the Necessary & Proper Clause is already being limited by a judicially administrable doctrine: the economic-noneconomic distinction. To execute its commerce power under the existing Necessary & Proper Clause doctrine, Congress may only reach intrastate economic activity that substantially affects interstate commerce. According to this settled doctrine, however ‘necessary’ it might otherwise be, it cannot reach intrastate noneconomic activity . . . “