In his post below, Orin criticizes Judge Hudson’s opinion for implying that if Congress may not regulate inactivity under the Commerce Clause it also may not reach such conduct under the Necessary and Proper Clause. This cannot be right because, as Orin notes, the whole point of the clause is to give Congress the ability to execute its other enumerated powers. I accept this point, but I would caution against jumping to the opposite conclusion. Just because Congress has the power to enact measures that are necessary and proper to the execution of its power to regulate commerce – in this case, health care markets – that does not mean that Congress has the power to do anything and everything that, on the margin, facilitates or makes more efficient other federally enacted regulatory measures. This argument is no less untenable if one takes seriously the notion that there are judicially enforceable limits on the federal government’s enumerated powers.
Identifying the line to distinguish between permissible and impermissible exercises of the federal government’s power under the Necessary and Proper Clause is the task at hand, and existing precedent is only of limited use. The Court’s decisions, from McCulloch to Comstock, only go so far in addressing this question. They clearly confirm that Congress can take some steps beyond the scopes of the other enumerated powers, but also reaffirm that federal power is limited, and none of the relevant cases stand for the proposition that it is for Congress, and Congress alone, to determine what may be enacted as necessary and proper to the execution of other constitutional measures.
This is why the individual mandate presents a difficult question. It is beyond dispute that, on the margin, requiring all Americans to purchase health care will reduce the costs of seeking to expand coverage by, for instance, prohibiting health insurers from denying coverage for preexisting conditions. But as I noted in my prior post, the same can be said for any measure that increases the participation of relatively healthy people in health insurance pools or that increases the average health of those that are insured. So unless one wants to adopt the view that any provision adopted as part of some broader legislative scheme is necessary and proper just because Congress says it is so long as there is some plausible justification for it’s relation to the broader scheme, one needs to identify some alternative limit. This is something the individual mandate’s defenders have yet to do.
One solution to the line-drawing problem is to argue that, at least for Commerce Clause purposes, there is a fundamental difference between regulating economic conduct – conduct that places an individual within or sufficiently proximate to the streams of commerce – and mandating conduct. This line is appealing because neither a prohibition nor conditional regulation curtails liberty as much as does an affirmative mandate. On this basis, one could argue, that a direct mandate is not “proper,” even if it might be useful or efficient. Drawing the line here is also appealing because there is no precedent for using the Necessary and Proper Clause in this fashion, at least not in the Commerce Clause context. Thus, a court can invalidate the individual mandate on this ground without challenging any of the relevant precedents and without undermining any other portions of the U.S. Code. Finally, if one accepts that a line must be drawn – and I recognize that some do not – this line is appealing because it is an administrable line, and its critics have yet to identify any viable alternative.
UPDATE: It has been brought to my attention that some groups, including the folks at Think Progress, have interpreted this post to say that “Judge Hudson’s opinion ‘cannot be right.'” This is wrong. What “cannot be right” is the view that the scope of the Necessary and Proper Clause is limited by the scope of the other powers enumerated in Article I, Section 8. In a prior post, Orin said Judge Hudson’s opinion implies this view, but that is Orin’s characterization of the opinion not mine. While I agree that Judge Hudson’s discussion of the Necessary and Proper Clause is not as in depth as I might have liked, I did not mean to say or imply that Judge Hudson’s opinion “cannot be right,” as I do not believe that. Nor do I believe that it is fair to characterize Judge Hudson’s opinion as “not ready for prime time” or somehow below par for what we should expect from federal judges.