'Necessary AND Proper' and 'Cruel AND Unusual': Hendiadys in the Constitution
Constitutional doctrine is often shaped by the details of the constitutional text. Under the Necessary and Proper Clause, the Supreme Court first considers whether a law is “necessary” and then whether it is “proper.” Some justices have urged the same approach for the Cruel and Unusual Punishments Clause: first ask if the punishment is “cruel,” then if it is “unusual.” That each clause has two requirements seems obvious, and it is has been the assumption underlying vast amounts of scholarship. That assumption is incorrect.This Article argues that “necessary and proper” and “cruel and unusual” are best read as instances of hendiadys. Hendiadys is a figure of speech in which two terms, separated by a conjunction, work together as a single complex expression. It is found in many languages, including English: e.g., “rise and shine,” “nice and fat,” “cakes and ale,” “open and notorious.” When “cruel and unusual” is read as a hendiadys, the clause does not prohibit punishments that merely happen to be both cruel and unusual. Rather, it prohibits punishments that are unusually cruel, i.e., innovative in their cruelty. If “necessary and proper” is read as a hendiadys, then the terms are not separate requirements for congressional action. The word “necessary” requires a close relationship between a statute and the constitutional power it is carrying into execution, while “proper” instructs us not to interpret “necessary” in its strictest sense. “Proper” also reminds us that the incidental power Congress is exercising must belong to an enumerated power.To read each of these constitutional phrases as a hendiadys, though seemingly novel, actually aligns closely with the early interpretations, including the interpretation of the Necessary and Proper Clause in McCulloch v. Maryland. The readings offered here solve a number of puzzles, and they better capture the subtlety of these clauses.
The Imaginary Immigration Clause
The political convulsions of the past decade have fueled acute interest in constitutional For the past century, the Supreme Court has skeptically scrutinized Congress’s power to enact healthcare laws and other domestic legislation, insisting that nothing in the Constitution gives Congress a general power to “regulate an individual from cradle to grave.” Yet when Congress regulates immigrants, the Court has contradictorily assumed that Congress has “broad, undoubted power” to do whatever it thinks necessary—even though no clause of the Constitution gives Congress any specific immigration power. The Court has explained this discrepancy with reference to the Chinese Exclusion Case, an 1889 decision in which it allegedly held that Congress possesses “sovereign” power to regulate immigrants beyond Congress’s ordinary enumerated powers. Absent this imagined Immigration Clause, the Court has offered no explanation for its anomalous review of Congress’s immigration laws.

This Article contests this traditional reading of the Chinese Exclusion Case as well as the consequences that have followed from it. Throughout the first century of congressional and judicial resistance to Congress’s power to regulate immigration, there was a broad consensus that Congress had no freestanding power to regulate immigrants beyond its ordinary powers to regulate everyone else. Far from disrupting this consensus, the author of the Chinese Exclusion Case adhered to it before, during, and after his opinion. It was not until the mid-twentieth century that the Supreme Court retroactively misread the Chinese Exclusion Case to authorize an extraconstitutional federal immigration power. Yet these misreadings have never explained why the Court invalidates ordinary domestic legislation even as it defers to federal immigration laws.

In contrast with scholars and immigration advocates who have sought to apply the Court’s ordinarily skeptical scrutiny to the immigration context, we argue that this history highlights the flaws of relying on judicial review to protect disenfranchised minorities from a hostile and overzealous Congress. This review has functioned to muffle the serious legislative debate that animated the resistance to the first century of federal immigration restrictions. Rather than ask the courts to limit federal immigration laws just as they limit federal healthcare laws, we therefore argue that Congress itself should rethink whether Article I permits the expanse of its immigration laws in effect today.
Standing as an Article II Nondelegation Doctrine
In this Article, I consider the following puzzle in standing doctrine: the dichotomy between Executive Branch and private party standing. Although the Executive Branch has standing to assert the interest in “seeing that the law is obeyed,” private parties may not allege such an abstract grievance. I argue that this apparent contradiction offers a new explanation for Article III standing doctrine: standing enforces an Article II nondelegation principle by curtailing private prosecutorial discretion. The Executive Branch has an Article II duty to take care that the laws are faithfully executed and, for that reason, has standing to “see that federal law is obeyed.” Notably, in carrying out this responsibility, the Executive Branch may pursue any violation of federal law. The Executive Branch thus has the prosecutorial discretion to sue any person, anywhere in the country, for any violation. The Executive Branch has a duty to exercise this discretion in accordance with constitutional requirements and other legal and political constraints. But such discretion does create a serious potential for abuse. Accordingly, I assert that the Executive Branch’s Article II duties to enforce federal law, and to exercise the accompanying prosecutorial discretion, are nondelegable. Given the potential for abuse, such discretion may not be transferred to private parties, who are not subject to the legal and political checks that, to some degree, constrain the Executive Branch. This Article II nondelegation principle provides a constitutional explanation for much of Article III standing doctrine. Standing enforces the Article II nondelegation doctrine by curtailing private prosecutorial discretion. A private party may not assert an abstract grievance (such as the interest in “seeing that the law is obeyed”) that would allow her to sue any person for any legal violation. A private party retains the discretion to bring suit only if she has suffered a more concrete injury-in-fact. That injury further curtails her prosecutorial discretion, because she may sue only the person that caused the injury and may seek redress only for that harm. In this Article, I argue that this Article II nondelegation rationale offers both a new normative foundation, and a new scope, for the constitutional dimension of standing doctrine.