That Which is “Necessary” Isn’t Necessarily Proper

In his most recent post in our debate over the Necessary and Proper Clause, Orin argues that Supreme Court precedent has resolved the issue of what counts as “proper” as well as what is “necessary.” That, however, simply is not so. None of the cases Orin cites say anything about the meaning of “proper.” They all focus on whether the measure in question was “necessary” or not.

In the rare instances where the Court has given separate consideration to the meaning of “proper,” the Court has made clear that it is a separate and distinct issue from what is necessary, and that it is not subject to broad judicial deference. For example in Printz v. United States, the Court concluded that a federal law requiring state officials to perform background checks on gun purchasers was “improper” because it invaded state sovereignty even though it was clearly “necessary” for implementing the government’s regulatory purposes (in the broad sense of “useful” or “convenient” adopted by the Court). As Justice Scalia’s majority opinion in that case put it:

What destroys the dissent’s Necessary and Proper Clause argument . . .. is … the Necessary and Proper Clause itself. When a “La[w] . . . for carrying into Execution” the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions we mentioned earlier…. proper for carrying into Execution the Commerce Clause,” and is thus, in the words of The Federalist, “merely [an] ac[t] of usurpation” which “deserve[s] to be treated as such.” The Federalist No. 33

The Court did not apply broad deference to the government’s position and did not conflate necessity with propriety. Notice also that Scalia doesn’t deny that the background check provision is “necessary” for implementing the goverment’s Commerce Clause-based purposes. Unfortunately, neither Printz nor any other case gives us anything approaching a complete definition of what counts as “Proper” under the Clause. So I don’t claim that the current precedent proves that the individual mandate is “improper.” But it is clear that propriety and necessity are two separate issues, and that the Court is not especially deferential to the government when it comes to the former.

Orin also contends that the issue of what is “proper” was raised by the Respondents in Comstock. Unfortunately, Orin here conflates two separate questions: whether the statute serves a constitutionally permissible end and whether it uses “proper” means to do so. The Respondents did not argue that the relevant statute was an “improper” means to a constitutionally permissible end. Rather, the relevant section of their brief (pg. 37) claims that the statute did not promote a purpose that is within Congress’ enumerated powers. The title of the section makes this clear: “Police And Parens Patriae Powers Are Not Proper ‘Ends’ For Federal Government Regulation.”

The main point at issue in Comstock was whether a statute allowing the federal government to detain “sexually dangerous” federal prisoners after they had finished their sentences advanced an end that was connected to some enumerated power. That is a separate question from the issue of whether a statute that does promote a permissible end under current doctrine uses “proper” means to do so. The Respondents’ brief unnecessarily confused matters by claiming that a statute that doesn’t pursue a permissible end is not “proper.” In reality, whether it is “proper” is irrelevant because such a statute wouldn’t pass muster anyway because it does not “carry into execution” one of the federal government’s other enumerated powers, as the text of the Clause requires. I discuss this distinction at greater length in my article on Comstock, where I criticize the Court’s expansive interpretation of legitimate ends, but also explain thatthat says nothing about the issue of the propriety of means.

In any event, regardless of what the Respondents said, the Court nowhere defines “proper” in Comstock. Neither does it overrule Printz and other previous cases holding that propriety and necessity are distinct issues.

At this point, I really have to focus on doing work on my (unrelated) article. I’m sure Orin, the commenters, and others will continue their discussion of the subject if so inclined. I also refer interested readers to Randy Barnett’s excellent analyses here and here. In the latter article, Randy goes through the relevant precedent in much more detail than I can here. He is also, of course, one of the leading academic experts on the Clause.

UPDATE: I should acknowledge that the Respondents’ brief in Comstock does at one point suggest that the means used may be “improper” because they infringe on state prerogatives (35-36). I should have noted this in the main post, and I apologize for the oversight. However, the Court’s opinion seems to ignore this argument. Alternatively, maybe the majority thought they had addressed this issue when they concluded that the statute “accommodated” state interests because it essentially allows states to opt out at will by choosing to take custody of the relevant prisoners themselves and then releasing them if they prefer. There is, of course, no such accommodation in the individual mandate.

Be that as it may, what matters in Comstock (or any case) is not what the litigants say, but what the Court decides. And Comstock nowhere defines “proper.” Neither does it overrule previous precedents holding that “necessary” and “proper” are separate issues.