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In Wickard v. Filburn, the Supreme Court upheld a federal statute making it a crime for a farmer to produce more wheat than was allowed under price controls and production controls, even if the excess production was for the farmer's own personal consumption. The Necessary and Proper Clause was used to justify the regulation of production and consumption.[8]
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In National Federation of Independent Business v. Sebelius the Supreme Court ruled that the individual mandate of the Patient Protection and Affordable Care Act cannot be upheld under the Necessary and Proper Clause. Chief Justice John Roberts wrote in his ruling that the mandate cannot "be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. [...] The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is “necessary” to the Affordable Care Act’s other reforms, such an expansion of federal power is not a “proper” means for making those reforms effective."[9] David B. Kopel, an adjunct professor of constitutional law at Denver University, says this ruling returns the Necessary and Proper clause to its original interpretation outlined by John Marshall in McCulloch v. Maryland. He states that the clause grants Congress no additional powers, but "simply restates the background principle that Congress can exercise powers which are merely “incidental” to Congress’s enumerated powers."[10] Kopel examples this by referring to Congress enumerated power to establish uniform Laws on the subject of Bankruptcies throughout the United States. He says because Congress has been expressly given the power to establish the rules of bankruptcy by the Constitution, Congress can also enact laws against bankruptcy fraud.[10]