He makes three points that I will briefly answer. First, Orin suggests that current Supreme Court doctrine gives a broad interpretation of the word “proper” in the Clause. However, all the cases he cites are in fact interpretations of the word “necessary,” not “proper.” As I said in my original post, the Court has interpreted “necessary” very broadly. But it has not done the same with “proper.” The main textual argument against the mandate focuses on the latter.
Second, Orin suggests that the five part test outlined in United States v. Comstock does not apply going forward, and only applies to the unusual circumstances of Comstock itself. However, the Court spent a great deal of time and space outlining and applying the five factor test. Nothing in the opinion suggests that it applies only to Comstock itself or some narrow range of similar cases. If that were the Court’s intention, surely they would not have omitted this extremely important qualification to their reasoning. After all, a big part of the justices’ job is to provide guidance for lower courts on how to decide future cases, and they are well aware of that responsibility.
Moreover, Orin’s interpretation of current doctrine is that anything flies so long as it is “rationally related” to the enforcement of an enumerated power. If that were so, the Court need not have applied the five factor test even in Comstock itself. After all, as I explained in one of my earliest posts on Comstock, the statute upheld in that case was “rationally related” to the regulation of interstate commerce as that power was defined by the Court in cases such as Gonzales v. Raich. Confining prisoners beyond the period of their term prevents them from traveling interstate and perhaps also from committing future crimes that might affect interstate commerce. That’s enough for a rational relationship under the extremely deferential definition that the Court applies in “rational basis” cases. The fact that the Court didn’t rely on this kind of argument suggests that the five part test has at least some bite. I would also note that Chief Justice Roberts was in the majority in Comstock (the one who cast the decisive fifth vote for the majority opinion as four other justices either dissented or rejected the majority’s reasoning). I find it unlikely that he would sign on to an opinion that turns the Necessary and Proper Clause into a virtual blank check for Congress.
Finally, Orin says that he doesn’t mean to suggest that current doctrine makes the case a “slam dunk” for the government, only to “figure out which team should win rather than debate the spread.” I appreciate the clarification. For reasons I explained in my earlier post, current Necessary and Proper doctrine simply does not squarely cover the main issues raised by the mandate case. To the extent that the doctrine is tangentially relevant, it gives considerable ammunition to the opponents of the mandate; but defenders are not without resources of their own. Therefore, even a heavily precedent-oriented judge won’t be able to decide the case going by precedent alone. Ultimately, you can’t figure out which team should win this game simply by looking to see who won the last one.