Analysis Of The Necessary And Proper By Scalia

Power shall be vested in a President of the United Statesv." But Scalia ignores the concomitant clause that states "Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departmentsvi" as well as the sweeping powers given to Congress through the Necessary and Proper provision. Necessary and Proper gives Congress the means to make laws concerning the execution of federal powers, so it can hardly be a violation of principle for Congress to decide a mode by which an executive power should be implemented. Scalia fails to realize that the abstruseness of the Constitution prevents a true formalist outcome, because any such inquiry would be an attempt to draw lines where there are none, and where none were meant be. …show more content…
The framers recognized that including a modicum of ambiguity in the Constitution would provide each branch the latitude to compete for broader jurisdiction and powers, as none of the branches would be strictly limited by inflexible boundaries. Such latitude achieves Madison 's ideal of a government that pits ambition against ambition by providing each branch with both different avenues of operation and different incentives as well as the means necessary to effectuate their separate interests. The imposition of strict limits such as the ones Justice Scalia desires would obviate each branch 's ability to check the others by limiting the constitutionally supportable means by which they could compete for, and by extension check, certain powers. It is the indeterminateness of the Constitution combined with human self-interest that creates a functional horizontal separation of powers, for as Madison himself questioned, "what is government itself, but the greatest of all reflections on human nature?viii". Bright