I noticed something curious about M'Culloch v. Maryland today, and I'm curious for rxns.

At some point in the last ~decade, I started seeing the claim that McCulloch's N&P test goes beyond mere convenience--that it also *excludes* "great substantive and independent powers." 1/

That claim now seems to have grown up into a full-blown assumption. Like, relied on in passing as taken for granted; Definitely True without any need for explanation or caveat. From the beginning, though, it's struck me [describing my reactions, not making a truth claim] as at 2/

at obvious odds with the actual tradition for N&P Analysis, and not obviously that important within the four corners McCulloch itself. A little quick Westlawing at least *tentatively* bears the first part out. Unless I'm messing up the search, it looks like the last time the 3/

language was quoted at the SCt (before Robert's sole opinion in NFIB) was in 1894. And of three 19th century cites, two are buried in a long block quote and not otherwise referenced, where the third appears to be argument by counsel.

What about the second part? If the caveat 4/

If the "great substantive" phrase was so analytically important to McCulloch's statement of N&P test, then why did it only appear three times before 2013? Perhaps some broadly settled conception of how Necessary & Proper analysis worked had been lost? 5/

Or perhaps it wasn't in fact impt to McCulloch? Ever since the effort to convert it into an ~element of the N&P test surfaced, I've chalked up the new reading of McCulloch to a simple judgment call, presumably affected by the varying expectations of the readers (including me!) 5/

Like, "okay, we're contesting readings of one among dozens of asides that Marshall sprinkles like flower petals across the op; this is what it looks like to work the precedent; that's just how litigation goes."

But now we come to what has struck me and I can't unstick from 6/

McCulloch basically splits its enumeration discussion into two parts:
(1) a discussion of what the analysis would be WITHOUT the Necessary & Proper Clause;
(2) a discussion of what the Necessary & Proper Clause actually does.
This isn't a mind blowing insight; the opinion says 7/

The opinion makes this two-step structure quite explicit, and I suspect most Con Law teachers have fun with pushing on why both pieces are there, what the effect of either is independently, etc. So, the above is not a rocket science starting point.

But here's the thing. 8/

As always, maybe I'm missing something. But the "great substantive and independent power" language plainly belongs to the Court's discussion of the *first* question: "How would we do this analysis if the Necessary & Proper Clause WASN'T there?" 9/

This seems like a very serious problem for efforts to make a N&P Clause sized meal out of "no great substantive + independent power." I'm not saying I couldn't conceivably put together arguments for cross-referencing it if I was tasked with that project? But...I dunno man. 10/10