Many critics of Judge Hudson’s opinion in Virginia v. Sebelius have shorted his discussion of the Necessary and Proper Clause. (Even some of us who support the opinion have accepted this critique.) But Brooklyn Law’s Jason Mazzone suggests Judge Hudson’s critics are misreading his opinion, which was written more for Justice Scalia than legal academics. According to Professor Mazzone, “read in light of Scalia’s concurring opinion in Raich, Judge Hudson’s analysis is considerably more coherent that his critics allow.” He explains:
Though Judge Hudson doesn’t mention it, his opinion hews closely to Scalia’s concurring opinion in Gonzales v. Raich. There, Scalia provided what I think is a very helpful discussion (more helpful than the majority opinion in Raich did) for why, in light of Lopez and Morrison, Congress could use its commerce clause power to prohibit cultivation and possession of marijuana for personal use. Scalia explains in his opinion that Congress can reach activities that substantially affect interstate commerce—Lopez’s third category—not by using the commerce clause alone but only with the necessary and proper clause. In addition, Scalia says, that same clause allows Congress to regulate intrastate non-economic activities if the regulation of them is a necessary part of a more general regulation of interstate commerce. . . .
Scalia’s opinion in Raich on the scope of the necessary and proper clause refers throughout to the regulation of activity: he uses the word 42 times. Activity is the key to understanding Judge Hudson’s opinion in Virginia v. Sebelius.
Judge Hudson doesn’t deny that Congress has power to regulate the interstate health and insurance markets. He also doesn’t dispute that (consistent with McCulloch) the necessary and proper clause allows Congress to regulate those markets by means that are not themselves regulations of interstate commerce. However, in Judge Hudson’s view, the necessary and proper clause doesn’t allow Congress to regulate inactivity as a means to effectuate a regulation of interstate commerce. On my reading of Judge Hudson’s opinion, the commerce clause is a power to regulate an interstate commercial activity, the necessary and proper clause gives Congress leeway to regulate intrastate activities in order to achieve that end, but regulation of inactivity is, categorically, not a reasonable means to attain a legitimate end under the commerce clause. “The constitutional viability of the Minimum Essential Coverage Provision,” he says, “turns on whether or not a person’s decision to refuse to purchase health care insurance is . . . an activity.”