My Forthcoming Article on the Individual Mandate and the Meaning of “Proper” in the Necessary and Proper Clause

My forthcoming book chapter, “The Individual Mandate and the Proper Meaning of ‘Proper,'” is now available on SSRN. It is forthcoming in The Health Care Cases, edited by Gillian Metzger, Trevor Morrison, and Nathaniel Persily, eds. (Oxford University Press). The book is a collection of essays on NFIB v. Sebelius, the case where the Court addressed the constitutionality of the Obama health care bill. Among the many other contributors are Jack Balkin, Erwin Chemerinsky, Richard Epstein, Charles Fried, Jamal Greene, Linda Greenhouse, Andrew Koppelman, Neil Siegel, Larry Solum, and VC co-bloggers Jonathan Adler and Randy Barnett.

Here is the abstract for my contribution:

The Necessary and Proper Clause of the Constitution has often been at the center of debates over the limits of federal power. But in the first 220 years of its history, the Supreme Court never gave us anything approaching a comprehensive analysis of what it means for a law to be “proper.” The Court’s recent decision on the constitutionality of the Affordable Care Act individual health insurance mandate in NFIB v. Sebelius helps fill this gap. It moves constitutional jurisprudence closer to the proper meaning of proper.

In this article, I explain why Chief Justice John Roberts’ key swing-vote opinion was right to conclude that the individual health insurance mandate requiring most Americans to purchase government-approved health insurance is outside the scope of Congress’ power under the Necessary and Proper Clause becasue it is not “proper.”

Part I shows that the Necessary and Proper Clause compels laws authorized by the Clause to meet two separate requirements: necessity and propriety. Both the original meaning of the Clause and Supreme Court precedent support this interpretation. The Necessary and Proper Clause cannot be reduced to a mere “Necessary Clause” that renders the word “proper” meaningless.

Part II argues that the individual health insurance mandate is improper because upholding it under the Clause would have given Congress virtually unlimited power to impose other mandates, and also render large parts of the rest of Article I redundant. This is consistent with a relatively minimalistic reading of the word “proper.” I consider and reject various attempts to prove that the health insurance mandate is a special case different from other mandates. I also briefly discuss a broader interpretation of the Clause: that the power to impose mandates on the general population is not a power “incidental” to Congress’ other enumerated powers, but rather a major independent power of its own. Both the minimalistic and broad interpretations of “proper” lead to the same conclusion in the mandate case.

Finally, Part III briefly discusses the possible future implications of Roberts’ interpretation of propriety. Here, much depends on the future composition of the Supreme Court and other contingent factors. There is also an ongoing debate over whether the Chief Justice’s Necessary and Proper reasoning is mere dictum that does not bind lower courts. But it is possible that the ruling will have a noteworthy impact in curtailing future federal mandates. Future courts might also build on the NFIB’s interpretation of “proper” as a tool for incrementally strengthening limits on federal power.