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Necessary & Proper Podcast

Necessary & Proper is the official podcast of the Federalist Society’s Article I Initiative. The Framers of the Constitution intended the legislature to be the most powerful branch of government. In its present state, as the government operates on a day to day basis, it is not. Were the Founders simply wrong about the inherent powers of the legislative branch? Has the institution of Congress developed practices that are not compatible with the text of the Constitution? Why are current Congressional leaders unable or unwilling to act as an effective check on the presidency? Why is Congress unable to pass a budget? Why has Congress ceded much of its authority to the executive branch and to administrative agencies? What does it mean to serve productively as a member of the House or Senate? These and other important questions are the focus of the Article I Initiative. Periodic releases from Necessary & Proper will feature experts who can shed light on what the Framers envisioned for the legislative branch and how it can be restored to its proper place in the constitutional order.

Latest Episodes:

Necessary & Proper Episode 90: Nondelegation Doctrine Adds Another Good Year? Aug 12, 2025

Show notes

For many years, legal scholars have declared that the nondelegation doctrine is dead. Professor Cass Sunstein once quipped that the nondelegation doctrine had only “one good year” and more than 200 “bad ones.” But that has changed recently. In 2024, the en banc Fifth Circuit held that the Federal Communications Commision’s (FCC) Universal Service Fund is unconstitutional on nondelegation grounds. It was one of the only times since 1935 that a court has done so, and it appears that 2024 (and beyond) may turn out to be good years for the nondelegation doctrine.
Contrary to the FCC’s argument, the en banc Fifth Circuit concluded that the Universal Service Fund operates as a tax, which only Congress has the power and authority to require. Regardless of the public policy that it seeks to advance, Congress cannot delegate this power to the FCC or to any other executive branch agency. The nondelegation doctrine has not been entirely dead for the last hundred years; courts often construe statutes so as not to invalidate them under the nondelegation doctrine. The en banc Fifth Circuit rejected that approach.
Does the canon in the common law of agency, mentioned by the Fifth Circuit, known as delegata potestas non potest delegari (Latin for “delegated power may not be delegated”), have any impact on the original meaning of the nondelegation doctrine? Assuming the nondelegation doctrine is valid, what are the standards that courts should look to when determining whether a statute is sufficiently intelligible? Do words like “in the public interest” or instructions for the agency to “provide reasonable regulations” provide sufficient guidance to agencies? What kind of principles can be applied that are also judicially enforceable?
If the Supreme Court affirms the Fifth Circuit, what will be the impact on other statutes? To discuss these important questions and others, Jeff Beelaert, a partner at Stein Mitchell, and Trent McCotter, a partner at Boyden Gray, will join us.
Featuring:
Jeffrey Beelaert, Partner, Stein Mitchell
Trent McCotter, Partner, Boyden Gray PLLC
Moderator: Devin Watkins, Attorney, Competitive Enterprise Institute

Necessary & Proper Episode 89: New Voices in Administrative Law II: The Supreme Court and Federal Court Jurisdiction Aug 27, 2024

Show notes

The development of standing jurisprudence has been inextricably intertwined with the growth of the administrative state over the past 60 years and the bevy of new statutory rights, privileges, obligations, constraints, and interbranch dynamics that came with it. Over the past three terms, the U.S. Supreme Court has issued numerous opinions that are rich with standing doctrine. Three new voices in administrative law--all recent law school graduates--will address recent developments in standing jurisprudence, focusing on State standing, associational standing, and post-TransUnion common law analogues.
Featuring:
Eric Bush, Law Clerk to the Hon. Justin Walker, U.S. Court of Appeals for the D.C. Circuit
Shiza Francis, Associate, Shutts and Bowen LLP
Aaron Watt, Law Clerk to the Hon. Brian Miller, Eastern District of Arkansas
[Moderator] Prof. Aram Gavoor, Associate Dean for Academic Affairs, The George Washington University Law School

Necessary & Proper Episode 88: Loper Bright & Relentless Aug 15, 2024

Show notes

Chevron v. NRDC (1984) and subsequent precedents held that courts should defer to agency interpretations of ambiguous statutes. This “Chevron Deference” has been a topic of great debate, with many calling for it to be overturned, while others argue it is a vital part of how Courts address the complexity of law and agency actions. In two cases this term (Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce) the Court considered challenges to that precedent. Oral argument was heard in both cases on January 17th, 2024.
On June 28, 2024, a 6-3 Court issued its decision overturning Chevron, in a decision that may notably change the nature of the administrative state and the role of judges in reviewing agency actions moving forward.
Join us for a courthouse steps program where we will discuss and break down the decision and the potential future impacts of this sea change in administrative law.
Featuring:

Prof. Ronald M. Levin, William R. Orthwein Distinguished Professor of Law, Washington University in St. Louis School of Law
John J. Vecchione, Senior Litigation Counsel, New Civil Liberties Alliance
(Moderator) Prof. Kristin E. Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School

Necessary & Proper Episode 87: Current & Future Uses of the Impeachment Power Aug 15, 2024

Show notes

Congress’s impeachment power has been used dozens of times since the republic’s founding, mostly for relatively low- and mid-level executive and judicial officers involving clear instances of bribery or other felonies. Its attempted use to remove Supreme Court justices, presidents, and now cabinet secretaries is more controversial, and since the 1990s, in arguably partisan or overtly political ways. The impeachment inquiry into President Biden and the House vote to impeach Homeland Security Department Secretary Mayorkas (which recently failed a snap Senate vote) may be seen as tit-for-tat for the two impeachment trials of President Trump. Is that a false equivalence? Regardless of who threw the first partisan stone, are recent uses of the Impeachment power a good development or arguable abuses? What does it portend for the future? Our distinguished panel of scholars will discuss the power itself, recent impeachment proceedings, and the potential implications for the future.
Featuring:

Prof. Michael J. Gerhardt, Burton Craige Distinguished Professor of Jurisprudence, UNC School of Law
Prof. Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University
(Moderator) Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University

Necessary & Proper Episode 86: Why Congress Aug 15, 2024

Show notes

In his recent book Why Congress, Dr. Phillip Wallach covers the past, present, and future of the Legislative branch to help measure its modern level of dysfunction and offer suggestions for future restoration. The book traces how Congress was designed to operate, how it has met the challenges of decades past, and the trends that have contributed to increased polarization and decreased power. Having established how we got where we are, Dr. Wallach articulates three potential paths forward for Congress: continued dysfunction, increased power for the Executive branch, or a revival of the forms that ensured it will function as designed in the past. 
Join the author and our panel of guest experts for an enlightening discussion!
Featuring:

Prof. Bridget Dooling, Assistant Professor of Law, The Ohio State University - Moritz College of Law
Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School
Dr. Philip A. Wallach, Senior Fellow, American Enterprise Institute
(Moderator) Mr. Joel S. Nolette, Associate, Wiley Rein LLP

Necessary & Proper Episode 85: Holding Congress Accountable to the Constitution Jun 13, 2023

Show notes

On March 28, 2023, Representatives Harriet Hageman and Chip Roy joined the Georgetown University Chapter of the Federalist Society for a discussion moderated by David Hoppe. Topics ranged from the representatives' careers prior to joining Congress to the proper role of Congress in the federal government, and the event concluded with audience Q&A.
Featuring:
- Hon. Harriet Hageman, U.S. Representative, Wyoming
- Hon. Chip Roy, U.S. Representative, 21st District of Texas
- Moderator: David Hoppe, President, Hoppe Strategies

Can the Legislative Power Be Delegated? May 11, 2023

Show notes

On March 23, 2023, the Center for Constitutional Design at Arizona State University's Sandra Day O'Connor College of Law and the Federalist Society's Arizona State University Student Chapter and Article I Initiative co-hosted a debate about whether the legislative power can be delegated.
The debate featured Professor James Stoner and Professor Michael Rappaport, and was moderated by Arizona State Supreme Court Justice Clint Bolick.
Featuring:
- Prof. Michael Rappaport, Hugh & Hazel Darling Professor of Law and Director, Center for the Study of Constitutional Originalism, University of San Diego School of Law
- Prof. James Stoner, Hermann Moyse, Jr., Professor and Director, Eric Voegelin Institute, Department of Political Science, Louisiana State University
- [Moderator] Hon. Clint Bolick, Justice, Arizona Supreme Court
- [Introduction] Prof. Stephanie Lindquist, Foundation Professor of Law and Political Science and Director, Center for Constitutional Design, Sandra Day O'Connor College of Law, Arizona State University

The Major Questions Doctrine, Chevron Deference & the Future of the Regulatory State Apr 11, 2023

Show notes

The University of Richmond chapter of the Federalist Society hosted this panel discussion on "The Major Questions Doctrine, Chevron Deference & the Future of the Regulatory State" on Tuesday, March 21, 2023.
Featuring:
- Prof. Joel B. Eisen, Professor of Law, University of Richmond School of Law
- Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School
- Jonathan Wolfson, Chief Legal Officer and Policy Director, Cicero Institute

Necessary & Proper Episode 82: The D.C. Crime Bill: What Happens Next? Mar 15, 2023

Show notes

In November 2022, the District of Columbia City Council passed the Revised Criminal Code Act of 2022 (RCCA) that significantly reformed the D.C. Criminal Code to "modernize and overhaul" the District's criminal laws including a reduction in penalties for many violent offenses.
D.C. Mayor Muriel Bowser initially vetoed the bill citing concerns about some of the changes, but the Council overrode her veto in early 2023. Because D.C. government is not autonomous from the federal government, the legislation requires Congressional approval.
The U.S. House voted to nullify the bill, and the Senate is slated to vote on whether to block the bill this week. Should the Senate vote to block the D.C. bill, it could be the first time in almost 3 decades that Congress has nullified a D.C. law.
If the Senate votes to nullify the law, the bill will go to President Biden to sign or to veto. While many had anticipated he would veto the resolution, President Biden indicated in a March 2 tweet that he would sign the resolution should it pass.
On March 6, D.C. Council Chairman Phil Mendelson wrote a letter to the Senate attempting to withdraw the legislation. Such a withdrawal has not been attempted before. The Senate is still slated to take the issue to a vote later this week.
As the Senate vote approached, we hosted a webinar featuring an opening address from U.S. Senator Bill Hagerty, followed by a discussion of the bill and what may come next.
Opening Address Featuring:
Hon. Bill Hagerty, United States Senator, Tennessee
Discussion Featuring:
Zack Smith, Legal Fellow and Manager, Supreme Court and Appellate Advocacy Program, Edwin Meese III Center for Legal and Judicial Studies, Heritage Foundation

Necessary & Proper Episode 81: Creatures of Statute III: Congress’ Responsibility to Answer the Major Questions Dec 05, 2022

Show notes

On October 17, 2022, the Federalist Society's Regulatory Transparency Project and Capitol Hill Chapter hosted part III in a lecture series on the administrative state. This discussion covered the major questions doctrine and how Congress may respond to the Supreme Court's decision in West Virginia v. EPA.
Arguably unenforced for some time, recent federal court cases have once again raised the specter of nondelegation doctrine. In so doing, cases such as West Virginia v. EPA at the Supreme Court, and the 5th Circuit's decision in Jarkesy v. SEC, arguably throws into question the status quo under which administrative agencies have heretofore operated.
This final event in the co-sponsored luncheon series on the administrative state investigated the impact such cases may have on Congress in terms of lawmaking delegation, and forecasted what Congress can expect if SCOTUS continues to enforce the nondelegation doctrine while moving away from former deference doctrines.
Featuring:
- Sarah Binder, Senior Fellow, Governance Studies, Brookings Institution
- Daniel Flores, Senior Counsel, Committee on Oversight and Reform, House of Representatives
- Moderator: Hon. Trevor McFadden, Judge, United States District Court, District of Columbia

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