Is Court Packing Constitutional? – Law & Liberty

The Constitution does not simply say that Congress can add additional justices to the Supreme Court. Instead, it gives Congress this power through the Necessary and Proper Clause. Congress has the power to make all laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution . . . in the Government of the United States, or in any Department or Officer thereof. Since the Constitution establishes a Supreme Court, Congress can help to carry into execution the Supreme Court s authority by adding positions to the Court.

While Congress can add positions, it can only do so if its law is necessary and proper. And here is where the issue becomes interesting. It is not clear what the original meaning of the necessary and proper authority of Congress is. While Congress would have the authority to court pack under some reasonable interpretations, it would not have that authority under other reasonable interpretations.

via lawliberty.org

Professor Rappaport.