[Guest post by Aaron Worthing; if you have tips, please send them here.]
Strap yourselves in, kiddies, because this is going to be a long one.
One issue I glossed over, and I shouldn’t have, in analyzing Judge Hudson’s Obamacare ruling yesterday is the application of the necessary and proper clause, which is cynically referred to as the elastic clause, because in the minds of many observers, it can be stretched to reach anything. As you know, the Federal Government is denied every power not granted. Most of those grants of power are found in Article I, Section 8, and the last of those grants of power, the necessary and proper clause, reads as follows:
Congress shall have Power… To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
In other words, Congress has the power to carry out its other powers. Indeed, the classic explanation of this clause’s meaning is contained in McCulloch v. Maryland and is so often quoted it practically feels like it is in the constitution:
Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.
This means that so long as it doesn’t violate any other part of the constitution, Congress can do things not specifically authorized, in order to accomplish certain goals. So, even if the mandate is not itself something that congress can do under the commerce clause, some part of this bill is clearly constitutional, and thus the mandate is necessary and proper to carry out the parts that are constitutional. Or so the argument goes.
And let me pause and say something about the meaning of words, here. Like it or not, John Marshall’s opinion in McCulloch declared that “necessary” is not the same as “absolutely necessary” and thus he defines the term down to mean, more or less, useful. Feel free to disagree with that interpretation but it is how it has been for over two hundred years and it’s not likely to change anytime soon.
Moving on, Orin Kerr says that Judge Hudson got the application of the clause wrong, writing:
I’ve had a chance to read Judge Hudson’s opinion, and it seems to me it has a fairly obvious and quite significant error. Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause — “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” — does not expand Congress’s power beyond the Commerce Clause itself.
He then quotes this passage from the opinion as “key” to the reasoning:
If a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.
So, Kerr’s reasoning goes, the judge failed to understand that the Necessary and Proper Clause could reach beyond the bounds of the commerce clause. And then Kerr believes that the Necessary and Proper argument is “straightforward” from there. If Kerr has articulated his reasoning, I haven’t seen it. But, on the surface, there is some appeal to using the Necessary and Proper Clause. As I have said, and the Feds have argued, if the mandate is struck down and the rule on pre-existing conditions and similar provisions are retained, then this would implode the health insurance business. So that seems kind of necessary, right? But we will see in a moment, that isn’t enough.