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Whenever the Supreme Court uses a Necessary and Proper clause argument, I would feel remiss if I didn’t discuss the underpants gnomes.

For an introduction to the underpants gnomes, I refer you to the inestimable Carl Edman, who cited this South park classic in a FERC brief.

The industrious underpants-stealing gnomes were introduced to the world by the television program “South Park.” Famously, their business plan consists, in its entirety, of three stages: “Phase 1: Collect Underpants. Phase 2: ? Phase 3: Profit.” Wikipedia, Gnomes (South Park), http://en.wikipedia.org/wiki/Gnomes_(South_Park) (last modified Jan. 2, 2010). The gnomes’ business plan have since become a byword for theories with large logical gaps of which their expositors appear to be blissfully unaware.

From Justice Breyer’s opinion.

Taken together, these considerations lead us to conclude that the statute is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others.

So I think the argument would go something like this:

Phase 1 – Necessary and Proper Clause

Phase 2 – ?

Phase 3- Indefinite Civil Commitment

Makes sense to me.

From the Harvard Crimson:

A former Harvard student was indicted today for falsifying information in his applications to Harvard and for several scholarships.

Adam Wheeler, 23, was indicted on 20 counts of larceny, identity fraud, falsifying an endorsement or approval, and pretending to hold a degree. Wheeler was allegedly “untruthful” in his applications to the University and in scholarship applications, according to a statement released today by Middlesex District Attorney Gerry Leone.

As a senior in September 2009, Wheeler allegedly submitted fraudulent applications for the Harvard endorsement for both the United States Rhodes Scholarship and the Fulbright Scholarship.

His application packet included fabricated recommendations from Harvard professors and a college transcript detailing perfect grades over three years. Wheeler’s resume listed numerous books he had co-authored, lectures he had given, and courses he had taught, according to authorities.

Talk about living a lie.

Elena Kagan, who successfully argued United States v. Comstock, just notched another victory in her brief stint as an advocate. While she won in Salazar v. Buono, she lost (big time) in Citizens United v. Federal Election Commission. So Kagan is batting 2/3.

Still outstanding are Robertson v. United States, Holder v. Humanitarian Law Project, and Free Enterprise Fund v. Public Company Oversight Board.

Conceivably, Kagan could go 2/6.

Good thing she’ll be asking the questions next term, instead of answering them.

The complaint is here.

From the preliminary statement:

SB 1070 is unconstitutional. It violates the Supremacy Clause and core civil rights and civil liberties secured by the United States Constitution, including the First Amendment right to freedom of speech and expressive activity, the Fourth Amendment right to freedom from unreasonable searches and seizures, and the Equal Protection Clause guarantee of equal protection under the law.

The plaintiffs in this action will suffer serious violations of their constitutional rights and civil liberties if SB 1070 goes into effect. The named plaintiffs bring this action on behalf of themselves and a class of all others similarly situated to obtain preliminary and permanent injunctive relief and a declaration that SB 1070 violates the U.S. and Arizona Constitutions.

183. SB 1070 is void in its entirety because it attempts to bypass federal immigration law and to supplant it with a state policy of “attrition through enforcement,” in violation of the prohibition on state regulation of immigration.

184. SB 1070 conflicts with federal laws and policies, usurps powers constitutionally vested in the federal government exclusively, attempts to legislate in fields occupied by the federal government, imposes burdens and penalties on legal residents not authorized by and contrary to federal law, and unilaterally imposes burdens on the federal government’s resources and processes, each in violation of the Supremacy

Clause.

187. SB 1070 was enacted with the purpose and intent to discriminate against racial and national origin minorities, including Latinos, on the basis of race and national origin.

188. SB 1070 impermissibly and invidiously targets Plaintiffs who are racial and national origin minorities, including Latinos, residing or traveling in Arizona and subjects them to stops, detentions, questioning, and arrests because of their race and/or national

origin.

189. SB 1070 impermissibly deprives Plaintiffs who are racial and national origin minorities, including Latinos, residing or traveling in Arizona of the equal protection of the laws within the meaning of the Fourteenth Amendment to the U.S. Constitution.

190. Section 3 of SB 1070 impermissibly discriminates against non-citizen Plaintiffs on the basis of alienage and deprives them of the equal protection of the laws within the meaning of the Fourteenth Amendment to the U.S. Constitution.

193. Both Section 2 and Section 5 of SB 1070 are unconstitutional restrictions of rights guaranteed by the First Amendment.

196. Section 2 of SB 1070, as amended by Section 3 of HB 2162, requires that officers conduct unreasonable seizures of individuals in violation of the Fourth Amendment.

197. Sections 2 and 6 of SB 1070 provide for warrantless seizures of individuals in the absence of probable cause that they have committed crimes, in violation of the Fourth Amendment.

198. Section 2 of SB 1070 authorizes officers to detain individuals without lawful authority and transport individuals into federal custody, in violation of the Fourth Amendment.

Count 5 alleges a violation of the Arizona Constitution

Count 6 alleges a violation of Due Process.

Count 7 alleges a violation of the Right to Travel under the Article IV Privileges and Immunities Clause. And for some reason it cites the Privileges or Immunities Clause.

210. The Privileges and Immunities Clause of the U.S. Constitution, art. IV, § 2, cl. 1, provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
211. The Fourteenth Amendment to the U.S. Constitution provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
212. Both provisions prevent states from infringing upon the right to travel, including the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in another state, without a rational or compelling justification.
213. Section 2 of SB 1070 subjects those U.S. citizens who appear to a law enforcement officer to possibly be “unlawfully present in the United States” to investigation and detention pending a determination of immigration status if they do not present an identification document deemed acceptable by the State of Arizona.
214. SB 1070 thus interferes with the rights of such out-of-state citizens to travel freely through the State of Arizona without being stopped, interrogated, and detained.

In Graham v. Florida, Justice Thomas rejects Justice Kennedy’s “national consensus” approach to 8th Amendment jurisprudence. And he does it with gusto, comparing it to ornaments or window dressing.

In the end, however, objective factors such as legislation and the frequency of a penalty’s use are merely ornaments in the Court’s analysis, window dressing that accompanies its judicial fiat.11 By the Court’s own decree, “[c]ommunityconsensus . . . is not itself determinative.” Ante, at 16. Only the independent moral judgment of this Court issufficient to decide the question. See ibid.

I love the expression Window Dressing.

Here is one of my favorite jokes (imagine it being told in a Yiddish accent).

So a child was walking down the street, and passes a Mohel’s shop. The window is filled with pocket watches. So the child walks into the store and asks the Mohel, why are pocket watches hanging in the window? The Mohel asks the child, what would you like me to hang in the window?

And apparently SCOTUS likes the phrase as well. A quick search of the Supreme Court database shows that the phrase has been used in 12 Opinions.

The last time this phrase was used so pejoratively was in Justice White’s concurring opinion in New York v. US:

In view of the many Tenth Amendment cases decided over the past two decades in which resort to the kind of historical analysis generated in the majority opinion was not deemed necessary, I do not read the majority’s many invocations of history to be anything other than elaborate windowdressing.

Update: I just realized I read this joke in Judge Posner’s classic, How Judges Think. Check it out on Google Books. Seriously, when in doubt, I should just assume Posner said it.