#Court-packing isn’t just a bad idea — it’s downright unconstitutional

Rep. Jerry Nadler (D-NY) and Sen. Ed Markey (D-Mass.) are proposing a bill to “pack” the US Supreme Court by adding four new seats. The obvious aim is to dilute the power of the current conservative majority. Commentators have furiously debated the wisdom of such a move but paid very little attention to whether Congress even has the authority to do so.

Is so-called court-packing even constitutional? The answer is no.

The text of the US Constitution strongly suggests that Congress simply doesn’t have the power to pack the high court.

Congress has determined the number of seats since the beginning of the Supreme Court. But where does Congress get this power? Under the Constitution, Congress is a body with enumerated powers. That is, Congress has only those powers granted to it under the Constitution — and no other.

As it turns out, there is no specific grant of power to Congress under the Constitution to set the size of the Supreme Court.

It’s true that, in addition to its enumerated powers, the Constitution also grants Congress the power to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

This is the Necessary and Proper Clause, and it gives Congress certain implied power to, essentially, make the Constitution work properly. Since the Constitution establishes the Supreme Court but doesn’t say how big it should be, someone has to set the number of justices.

That someone is Congress under the Necessary and Proper Clause. But just because Congress can initially set the number of justices on the high court, does that mean Congress can later manipulate the size of the court to shift the balance of judicial power?

Since Chief Justice John Marshall’s landmark opinion in McCulloch v. Maryland in 1819, the Supreme Court has interpreted the Necessary and Proper Clause in a sweeping manner, resulting in a significant expansion of congressional authority. This has been largely accomplished through a broad reading of the word “necessary,” which the opinion in McCulloch defines not as “strictly necessary,” but as “convenient or useful.”

In this way, Congress has exercised exceptionally broad authority to make laws impacting nearly every aspect of our lives.

But in addition to being “necessary” (as broad as that is), a law enacted under this provision must also be “proper.” And there’s the rub. In McCulloch, the court explained that “proper” means “consist[ent] with the letter and spirit of the Constitution.”­ Moreover, the “end [must] be legitimate.”

This strongly suggests that when evaluating a claim of congressional power under the Necessary and Proper Clause we must examine motive and intent. 

Put another way, Congress gets to exercise this Necessary and Proper power only when it appears appropriate for it to do so. Can it reasonably be said that court-packing, an act whose goal is to materially alter the balance of power in Washington for explicitly ideological ends, lies within “the letter and spirit of the Constitution”? Hardly. Rather, it is a frontal assault against the separation of powers — a value deeply ingrained in the Constitution.

Thus, even if court-packing might meet the loose definition of necessary, it is difficult to say that such an assertion of congressional power would qualify as necessary and proper.

That important limitation on the Necessary and Proper Clause remains valid today. As recently as 2012, in the ObamaCare case NFIB v. Sebelius, the high court held that Congress couldn’t look to the Necessary and Proper Clause for the authority to enact the Affordable Care Act’s individual mandate. (The government ultimately won the case because the court held that the mandate was a tax and was therefore within Congress’ enumerated powers.)

In the ObamaCare case, the government argued that authority for the individual mandate was “necessary and proper” to implement Congress’ power to regulate interstate commerce — historically a great source of expanded authority for Congress. In rejecting the government’s position, the court explained that “such laws, which are not consistent with the letter and spirit of the Constitution, are not proper means for carrying into execution Congress’ enumerated powers. Rather, they are, in the words of The Federalist, merely acts of usurpation which deserve to be treated as such.”  

“Necessary” and “proper” still have their limits, and court-packing is unlikely to find in them any safe harbor. 

Daniel L. Schmutter, a lawyer in New Jersey, regularly practices before the appellate bench, including the US Supreme Court.