The Volokh Conspiracy

That’s the title of a new article by Gary Lawson and me, forthcoming in a symposium issue of Boston University’s American Journal of Law & Medicine. The Journal has a large readership among medical professionals who are interested in legal issues relating to medicine. Accordingly, if you have been following the VC’s debate on the ACA over the past couple years, most of what is in the article will already be familiar to you. Here is the abstract:

The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions of the statute are challenged. We then, using “unconstitutional” to mean” inconsistent with an original social understanding of the Constitution’s text (with a bit of a nod to judicial precedents),” show that the individual mandate in the PPACA is not authorized by the federal taxing power, the federal commerce power, or the Necessary and Proper Clause and is therefore unconstitutional.

Gary Lawson and I explain why, in an article published last week by Yale Law Journal Online.

In short, the Necessary and Proper Clause expressed the well-known agency law doctrine of principals and incidents. That is, the grant of power to an agent (and the federal government was an agent of the people, to exercise certain delegated powers) was considered to include incidental powers. (Unless the parties specified to the contrary.) To be an incidental power, a power had to be subsidiary to, inferior to, and “less worthy” (in the language of the time) than the principal power. So if A delegates to B the power to manage A’s farm for five years, B could lease part of the farm to C for a few years, but B could not sell the farm. The power to sell the farm is not an “incident” of the power to manage a farm. It is a power that is as great as the power to manage the farm.

Thus, the first half of Chief Justice Marshall’s opinion in McCulloch wrestles with the question of whether the power to establish a corporation (here, the 2d Bank of the United States) can be considered an “incident” of the enumerated congressional powers. This portion of the opinion is often expurgated from constitutional law textbooks. But not from Randy Barnett’s Constitutional Law: Cases in Context.

So is the power to order people to engage in commerce with certain corporations “incidental” to the enumerated power “to regulate Commerce . . .  among the several States”? Lawson and I argue that the power to compel intrastate commerce is of at least equal “dignity” as the power to regulate voluntary interstate commerce. Thus, the individual mandate cannot be justified a “necessary and proper” to the exercise of the power to regulate interstate commerce.

Further, the word “proper” affirms the agency/fiduciary law rule that an agent  must act reasonably, and when he is acting on behalf of several principals must treat the principals equally. So in Rooke’s Case, it was unreasonable that the entire costs of a water control project were imposed on a single landowner, when other landowners also benefited from the project. In Leader v. Moxon (1773) paving commissioners were unreasonable when they ordered a road repair that effectively buried the doors and windows of the plaintiff’s house, making plaintiff bear the entire burden of a project that was supposedly for the benefit of him and others. In the Founding era, government creation of a monopoly was the paradigm example of a government act that was not “proper,” because the monopolist was benefited to the detriment of everyone else.

In 1787, a consumer could at least choose not to buy the monopolist’s product.  ”The conclusion is clear: if a commercial monopoly—which citizens may avoid by not purchasing the product monopolized—is constitutionally void as ‘improper,’ then far more ‘improper’ is a mandate for the benefit of political favorites, which none but other political favorites may avoid. . . . [C]oerced commerce with congressionally favored oligopolists is constitutionally improper and void.”

Thus, if the Supreme Court follows the original meaning of the Necessary and Proper clause, and McCulloch v. Maryland‘s accurate exposition of that meaning, the Court will not rule in favor of the individual mandate as a necessary and proper exercise of the power to regulate interstate commerce.

My RegBlog post on the 11th Circuit’s recent decision striking down the individual mandate is now available here. The post considers the the ruling in more detail than my previous commentary on the subject.

RegBlog is a relatively new website established by the University of Pennsylvania Program on Regulation. For VC readers who may be interested, it has lots of good commentary by scholars and public officials on a variety of regulatory issues.

Newsday has published an op ed I wrote on the 11th Circuit decision striking down the individual mandate. Because of very tight space constraints, I was unable to cover many of the nuances of the decision. But the op ed does summarize my main thoughts on it:

Last week’s Eleventh Circuit Court of Appeals decision striking down the individual mandate in President Barack Obama’s health care plan is an important milestone. The court correctly recognized that there is no way to uphold the mandate without giving Congress unlimited power to mandate anything….

The ruling was co-authored by Judge Frank Hull, who became the first Democratic judge to vote to strike down the mandate. This undercuts already dubious claims that the lawsuits are frivolous; her opinion signals that the arguments against the mandate are strong enough to persuade at least one appellate judge likely to favor it on political grounds.

Since another federal appellate court, the Sixth Circuit, recently upheld the law, it’s extremely likely that the Supreme Court will decide to hear the case within the next year….

Defenders of the mandate claim this is a special case because everyone eventually uses health care at some point. But the argument relies on shifting the focus from health insurance to health care. The same bait-and-switch tactic can justify any other mandate.

For example, not everyone eats broccoli. But everyone does participate in the market for food. Therefore, a mandate requiring everyone to purchase and eat broccoli would be permissible under the federal government’s logic, as would any other purchase requirement. As the Eleventh Circuit puts it, “the government’s position amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life.” Whatever we do, we are always implicitly making decisions not to purchase some product or other, and those choices all have economic effects.

SCOTUSblog has just posted my contribution to their symposium on the individual mandate litigation. I interpreted the assignment as focusing primarily on the future prospects of the individual mandate challenges, rather than on the question of whether they deserve to win. So I focused primarily on the former question, even though some other participants in the symposium seem to have concentrated more on the latter. For those interested in my take on the normative question, I summarized it here. Here’s an excerpt from the SCOTUSblog post:

The Supreme Court may hear at least one of the cases challenging the constitutionality of the Obama health care bill’s individual mandate sometime during the next year. If it does, the result will have major implications for our system of constitutional federalism. If the federal government prevails, Congress is likely to have an unlimited power to impose mandates of any kind. If the plaintiffs win, the Court will have reaffirmed the importance of constitutional limits on federal power….

Every judge who has ruled on the issue has recognized that Congress has never previously imposed a comparably sweeping mandate under the Commerce Clause, and that the Supreme Court has never ruled on the issue of whether Congress has a general power to regulate inactivity. Given the deep ideological divisions over the case and the lack of precedent clearly on point, the Court could easily rule either way.

Nonetheless, the federal government probably has a better chance than the plaintiffs. The Court’s four most liberal Justices have consistently refused to recognize any meaningful limits on Congress’s powers under the Commerce Clause. Thus, the mandate will be upheld if even one of the five conservatives votes in its favor. And the conservatives have often been a fractious bunch in federalism cases….

At the same time, it is also possible that the conservative Justices will be unwilling to uphold the mandate because doing so is likely to give Congress unconstrained authority to impose virtually any other mandate. In the recent case of Bond v. United States, Justice Anthony Kennedy – a key swing voter – emphasized that constitutional constraints on federal power protect “the liberty of the individual” as well as “state sovereignty.” If the Court gives Congress unlimited power to impose mandates, that principle will be gutted. Thus, the Justices are likely to uphold the mandate only if they can find some way to do it without giving Congress a blank check to impose future mandates at will. Unconstrained congressional authority to impose mandates also goes against the text and original meaning of the Constitution, a consideration that might sway the originalists on the Court.

SCOTUSlog has also recently published several other contributions to the Symposium, including this one by co-blogger Jonathan Adler, and this one by Cory Andrews of the Washington Legal Foundation, with whom I have worked on several amicus briefs in the individual mandate cases on behalf of WLF, a group of constitutional law scholars, and several members of Congress. Obviously, the symposium also includes various contributions by prominent defenders of the mandate, with more to come. Check it out!

A recent Yale Law Journal Online article by Northwestern law professor Andrew Koppelman argues that the Obamacare individual mandate is obviously constitutional, especially in light of how McCulloch v. Maryland construed the Necessary and Proper clause. Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform (April 2011).

Gary Lawson (Boston Univ.) and I partially agree:

Professor Koppelman evidently believes that the constitutionality of the individual mandate begins and ends with McCulloch v. Maryland. He is absolutely right about that. He simply has the wrong beginning and ending.

Professor Koppelman gets the beginning wrong because he starts his analysis in the middle of the McCulloch opinion instead of where John Marshall began. Chief Justice Marshall‘s famous discussion in McCulloch of the causal connection required by the word “necessary” was preceded by a seven-page analysis of the constitutionality of a federal corporation under the Necessary and Proper Clause. Those seven pages dealt with an issue that Marshall recognized had to be addressed before he decided whether a corporation was a causally “necessary” (or otherwise “proper”) means for implementing federal powers. The threshold question was whether the power to incorporate was incidental or principal.

Our article, Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, elucidates the original meaning of the Necessary and Proper clause, which Chief Justice Marshall considered so important, but which professor Koppelman overlooked:

The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must exercise a subsidiary rather than an independent power, must be important or customary to achievement of a principal end, and must conform to standard fiduciary obligations.

From administrative law, the Necessary and Proper Clause embodies the closely-related principle of reasonableness in the exercise of delegated power, which independently requires conformance with a similar set of fiduciary norms, including the norms of acting only within delegated jurisdiction and of treating all persons subject to a public agent‘s power impartially.

Evidence from eighteenth-century corporate law – and the Constitution was widely recognized in the founding era as a type of corporate charter – confirms these conclusions about the meaning of the phrase “necessary and proper for carrying into Execution . . . .”

The power to order someone to purchase a product is not a power subordinate or inferior to other powers, such as the power to regulate voluntary commerce. The power to compel commerce is at least as significant – or, in eighteenth-century language, as “worthy” or of the same “dignity” – as the power to regulate insurance pricing and rating practices. It is therefore not incidental to other powers exercised by Congress in the PPACA and must be separately enumerated if it is to exist.

Second, the doctrine of principals and incidents and the principle of reasonableness both embody the fiduciary norm that agents exercising delegated power must treat multiple principals subject to those agents’ power impartially. Interpreting the Necessary and Proper Clause to allow Congress to force private dealings with preferred sellers of products fails that basic fiduciary norm, as illustrated by founding-era concerns about Congress invalidly using the Necessary and Proper Clause power to create monopolies.

That’s the argument of an Independence Institute amicus brief submitted to the 11th Circuit in Florida v. Department of Health and Human Services. Here’s the summary of argument:

The Necessary and Proper Clause was one of a large family of similar clauses commonly appearing in eighteenth-century legal instruments delegating authority from one party to another. Those clauses followed several possible formulae. The Necessary and Proper Clause is a specimen of the most restrictive of those formulae: It does not actually grant additional authority beyond that conveyed by other enumerated powers. Rather, it is a recital, designed to inform the reader of two legal default rules: 

First, that express grants of enumerated powers, stated elsewhere, carry with them subsidiary incidental powers (“necessary”). 

Second, that congressional enactments must comply with standards of fiduciary obligation and administrative reasonableness (“proper”).

This understanding of the Clause appears in the legal practices and leading cases at the time the Constitution was adopted, and also in the history of the Clause itself—the records of its drafting, in the ratification debates, in the Supreme Court’s great case on the subject, M’Culloch v. Maryland, 17 U.S. 316 (1819), and in Chief Justice John Marshall’s public explanations of M’Culloch.

Once the meaning of the Clause is understood, the implications for the individual mandate are clear:

The mandate is not “necessary” because power to impose it is not a subsidiary “incident” to Congress’s Commerce Power. The power to compel the purchase of a product is as great or greater than the power to regulate voluntary commerce; therefore the mandate cannot be an incidental power regardless of how helpful it might be. For Congress to possess authority of that kind, it would have to be separately enumerated in the Constitution.

The mandate is not “proper” because it violates the fiduciary obligations of impartiality embedded in the word “proper.” During the debates over ratification, participants recognized that a law chartering a commercial monopoly would be “improper.” A fortiori, compelled purchase from favored oligopolists is improper.

Thus, to the extent that the constitutionality of the individual mandate depends upon the Necessary and Proper Clause, the mandate is unconstitutional.

Besides the Independence Institute, the amici on the brief are Prof. Gary Lawson (BU), Prof. Robert G. Natelson (retired from U. Montana Law; currently a Senior Fellow at the Independence Institute); and Prof. Guy I. Seidman (Interdisciplinary Center Herzliya, Israel). The three professors are among the co-authors of The Origins of the Necessary and Proper Clause (Cambridge, 2010).

The Jurist has posted my article on “Why the Individual Health Care Mandate is Unconstitutional.” The format allowed me to lay out the case against all three of the federal government’s rationales for the law more fully than in any previous popular press publication. Here’s an excerpt:

Twenty-eight states and several private groups have now filed lawsuits challenging the constitutionality of the of the Obama health care plan. One of the cases was filed by twenty-six state governments and the National Federation of Independent Business in a federal court in Florida. Another was initiated by the Commonwealth of Virginia in a federal court in that state. Numerous other suits have been filed by a variety of private groups.

When the first of these suits began a year ago, many denounced them as frivolous political grandstanding. But it is increasingly clear that the plaintiffs have a real chance of winning. More importantly, they deserve to win because the mandate really is unconstitutional. If upheld, it would give Congress a dangerous power that greatly exceeds the bounds of the Constitution.

The cases focus primarily on challenges to the new law’s “individual mandate,” which requires most American citizens to purchase a government-approved health insurance plan by 2014 or pay a fine….

The federal government claims that Congress has the power to impose the mandate under the Commerce Clause, the Necessary and Proper Clause, and the Tax Clause of the Constitution. All three arguments have a common defect: if accepted by the courts, they would give Congress the power to enact virtually any mandate of any kind. Such a ruling would be unprecedented and would make a hash of the Constitution’s carefully defined limits on federal power.

The recent District of Columbia federal trial court decision upholding the individual mandate breaks little new ground and has many of the same weaknesses as the two previous district court decisions that went the same way. Judge Gladys Kessler ruled that the mandate is a legitimate exercise of Congress’ power under the Commerce Clause because choosing not to purchase health insurance is an “economic activity”:

It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to
ignore reality.

This argument suffers from the same flaws as the very similar “economic decision” doctrine adopted in the two previous rulings. It would give Congress the power to impose any mandate of any kind. For example, choosing not to buy and eat broccoli surely qualifies as an economic decision under this approach. So too with choosing not to buy a car. And so on. Even choosing to sleep for an hour qualifies, since one could have used the same time to do work or go out and buy a product of some kind. Nothing in Supreme Court precedent gives Congress such unlimited power (a point Kessler seems to accept), and allowing it certainly makes a hash of the text of the Commerce Clause, which merely gives Congress the power to regulate “Commerce . . . among the several States.”

Judge Kessler also relies on what I have previously called the “health care is special” argument: that choosing not to purchase health insurance is an economic activity because we will all use health care at some point in our lives. This argument, however, also leads to unlimited congressional power, for reasons I have explained here:

This, however, doesn’t differentiate health care from almost any other market of any significance. If you define the relevant “market” broadly enough, you can characterize any decision not to purchase a good or service exactly the same way. Notice that [Judges] Steeh and Moon do not argue that everyone will inevitably use health insurance. Instead, they define the relevant market as “health care.” The same sleight of hand works for virtually any other mandate Congress might care to impose.

Consider the case of a mandate requiring everyone to purchase General Motors cars in order to help the auto industry. Sure, there are many people who don’t participate in the market for cars. But just about everyone participates in the market for “transportation….” We all move from place to place in some way. If we don’t do so by purchasing cars, we will have to pay for some other mode of transportation, such as planes, buses, or trains. Even people who walk everywhere they go will have to buy shoes to do so. Buying cars, planes, trains, buses and shoes are just different ways of paying for transportation.

How about a mandate requiring everyone to see the most recent Harry Potter movie? Sure, there are many people who don’t watch movies. But just about everyone participates in the market for entertainment. If you don’t go to the movies, that’s just a decision to pay for some other form of entertainment somewhere else…..

Judge Kessler does break some new ground relative to previous rulings by arguing that health care is special because providers are required to provide emergency services to the uninsured, which is not true of most other markets. But why is that difference constitutionally relevant? She doesn’t really give a clear explanation. The answer seems to be that failure to purchase therefore has adverse economic effects on producers and could potentially increase costs. Put that way, of course, failure to purchase health insurance turns out to be no different from failure to purchase any other product. Any time someone fails to purchase a product, be it cars, movie tickets, or broccoli, producers are made economically worse off than they would be if the potential buyer had made a different decision. This is true regardless of whether the producers must provide services to some consumers for free or not. At most, the latter condition exacerbates the negative impact on producers of a failure to purchase. But so too can all sorts of other market conditions and government regulations. Moreover, Judge Kessler’s approach would allow Congress to impose any mandate of any kind so long as it also required at least some producers to provide their product to at least some consumers for free. This too is a road to virtually unlimited federal power to impose mandates, since producers in any industry would be happy to accept a minor “free service” obligation so long as it was coupled with a more lucrative purchase mandate.

In a footnote, Judge Kessler blames the plaintiffs for supposedly choosing to “’free ride’ on the backs of those Americans who have made responsible choices to provide for the illness we all must face at some point in our lives.” But it is Congress, not the plaintiffs, which is responsible for the requirement that hospitals free emergency service to the uninsured. If it wanted to, Congress could have eliminated such free riding simply by lifting the requirement with respect to anyone who had enough income to purchase health insurance but chose not to do so. That approach would have prevented free riding without imposing any mandates, and would also have avoided any possible constitutional problems.

Finally, Kessler also upholds the mandate under the Necessary and Proper Clause. In so doing, however, she simply ignores the main arguments against the federal government’s position under that Clause: that the mandate is not “proper” even if “necessary” and that it runs afoul of the five factor test recently applied by the Supreme Court in United States v. Comstock. In fairness, the judge did not need to consider the Necessary and Proper Clause issue, since she had also decided to uphold the mandate under the Commerce Clause alone. But since she chose to reach the issue, she should have made at least some effort to explain why the key anti-mandate arguments (which had previously been accepted by two other federal district courts) are wrong.

UPDATE: I should note that Judge Kessler rejects the federal government’s argument that the mandate can be upheld under Congress’ power to impose taxes. Like every other court that has considered this argument so far, she concludes that the mandate is a “penalty,” not a tax. In reaching that conclusion, she relies on Judge Roger Vinson’s analysis in the Florida decision striking down the mandate. The federal government’s tax argument has now gone 0-4 in federal courts, including two adverse rulings by federal judges who upheld the mandate on other grounds.

Is the Patient Protection and Affordable Care Act consistent with the original meaning of Constitution? David Gans (at Balkinization) and Charles Fried (testifying before the Senate Judiciary Committee) agree that the answer is “yes.” Both of them point to Gibbons v. Ogden and McCulloch v. Maryland.

Gibbons is certainly a good foundation for advocates of strong federal powers. As the Supreme Court later wrote in Wickard v. Filburn, Gibbons “described the Federal commerce power with a breadth never yet exceeded.” Indeed, Wickard itself did not purport to go any further than Gibbons had gone. Yet too many people know Gibbons only from expurgated versions in casebooks; thus they rely on some general phrases in Gibbons, and they infer that the commerce power encompasses everything that has interstate effects. Yet reading the full text of Gibbons ends the need to build speculation upon speculation. According to Chief Justice Marshall, the commerce power does not encompass:

that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description….

(Emphasis added.) Of course one may argue that Chief Justice Marshall was wrong, and that it would be better if “health laws of every description” could be enacted by the national government. But that would not be an originalist argument, and it would certainly not an argument for which one could cite Gibbons v. Ogden.

Some advocates of the current health control law also point to McCulloch v. Maryland to bolster their favored interpretation of the Necessary & Proper clause. These interpretations are not consistent with Chief Justice Marshall’s own understanding of what McCulloch said, and what he believed that “necessary and proper” includes. When McCulloch was decided, it came under fierce criticism, and so Chief Justice Marshall penned a series of pseudonmyous newspaper essays defending the decision. (That the essays, like The Federalist, were written pseudonymously makes them no less valuable.) The essays are collected in the book John Marshall’s Defense of McCulloch v. Maryland, published by Stanford University Press in 1969, and edited by Gerald Gunther. Having studied the essays, Professor Gunther wrote in his introduction, “Clearly these essays give cause to be more guarded in invoking McCulloch to support views of congressional power now thought necessary.”

Marshall explicitly agreed with a critic of McCulloch “that the insertion of the words necessary and proper in the last part of the 8th section of the 1st article, did not enlarge powers previously given, but were inserted only through abundant caution.” (Emphasis in original.) In Marshall’s understanding, any power necessarily includes its incidents. At the time of the Founding and the Early Republic, the legal definition of ”incidents” was that they are inferior powers, and cannot be equal to or greater than the enumerated power to which they pertain. Regarding incidental powers, wrote Marshall, “Their constitutionality depends on their being the natural, direct, and appropriate means, or the known and usual means, for the execution of the given power.”

In a forthcoming article in Engage (the journal of The Federalist Society’s practice groups), Rob Natelson and I penned a hypothetical opinion on a federal health control law, written entirely in Chief Justice Marshall’s voice. The opinion consists mainly of direct quotes from Marshall. (Rob, who knows the law and legal culture of the Founding Era as well as anyone in the world, is the lead author.)

It would be difficult to make a serious argument that the original meaning of the commerce clause and the necessary & proper clause is broader than Chief Justice Marshall thought them to be. Marshall’s vigorous readings of those clauses were hardly uncontested by other Founders. For example, James Madison criticized the reasoning, although not the result, in McCulloch. (As President, Madison had signed the bill creating the Second Bank of the United States, which he thought to be inconsistent with original meaning, but validated by subsequent practice.)

The current U.S. Supreme Court and the Circuit Courts of Appeal do not always follow original meaning, but to the extent that they do care about it, the PPACA in general and the mandate to purchase congressionally-designed health insurance in particular cannot be considered constitutionally valid under the commerce clause or the necessary & proper clause.

Today’s Florida district court ruling that the individual mandate is unconstitutional is by far the best court opinion on this issue so far. Judge Roger Vinson provides a thorough and impressive analysis of the federal government’s arguments claiming that the mandate is authorized by the Commerce Clause and the Necessary and Proper Clause, and explains the flaws in each. He had already rejected the government’s claim that the mandate is constitutional because it is a tax in a previous ruling. So far, all three federal courts that have considered the tax argument have rejected it, instead ruling (in my view correctly) that the mandate is a penalty.

This is perhaps the most important of all the anti-mandate lawsuits because the plaintiffs include 26 state governments and the National Federation of Independent Business.

One of the best parts of today’s opinion is Judge Vinson’s critique of the federal government’s argument that the mandate is constitutional under the Commerce Clause because the Clause gives it the power to regulate “economic decisions”:

The problem with this legal rationale, however, is it would essentially have unlimited application. There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort. The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that — when aggregated with similar economic decisions — affect the price of that particular product or service and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on interstate commerce; rather, the difficult task is to find a decision that does not….

The important distinction is that “economic decisions” are a much broader and far-reaching category than are “activities that substantially affect interstate commerce” [which Supreme Court precedent allows Congress to regulate]. While the latter necessarily encompasses the first, the reverse is not true. “Economic” cannot be equated to “commerce.” And “decisions” cannot be equated to “activities.” Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is “economic activity.” There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes.

Judge Vinson has a similarly compelling answer to the government’s claim that choosing not to purchase health insurance is an “economic activity” because everyone participates in the health care market at some point:

[T]here are lots of markets — especially if defined broadly enough — that people cannot “opt out” of. For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market. Or, as was discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile — now partially government-owned — because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business….

As Vinson explains, both the “economic decisions” argument and the “health care is special” argument ultimately amount to giving Congress the power to mandate virtually anything, and therefore conflict with the text of the Constitution and Supreme Court precedent. I addressed both arguments in more detail here. Judge Vinson also notes that the scenarios he raises are not merely a “parade of horribles,” but have a realistic basis, a point that I discussed in this recent post.

Turning to the Necessary and Proper Clause, Judge Vinson concedes that the individual mandate is “necessary” under existing Supreme Court precedent, but argues that it isn’t “proper” because the government’s logic amounts to giving Congress virtually unlimited power. I think this is exactly right; Vinson’s analysis is actually very similar to my own in this post (which is not to even suggest that he got the idea there).

Vinson also notes that the mandate probably runs afoul of the five part test recently outlined by the Supreme Court in United States v. Comstock, though he ultimately does not base his ruling on this point. I advanced a similar interpretation of Comstock and its implications for the mandate case in this article (pp. 260-67). Overall, Judge Vinson’s analysis of the Necessary and Proper Clause is a big improvement on Judge Henry Hudson’s performance in the recent Virginia ruling striking down the mandate.

Unlike Judge Henry Hudson in the Virginia case, Judge Vinson ruled that the mandate is not “severable” from the rest of the health care bill, and therefore invalidated it in its entirety. I think this may be somewhat too sweeping. However, Vinson is on strong ground in ruling that the mandate cannot be severed from the bill’s provisions forcing insurance companies to cover people with preexisting conditions. As he emphasizes, the federal government itself has repeatedly stressed this point in the litigation.

Finally, Judge Vinson rejected the 26 states’ argument that the funding provisions of the bill are unconstitutionally “coercive.” I may have more to say on this issue in a later post.

As I have often noted in the past, this decision is just another step in an ongoing legal battle. Ultimately, the issue of the individual mandate will be resolved by the courts of appeals and probably by the Supreme Court. Still, Judge Vinson’s ruling is a victory for opponents of the mandate. It’s also extremely well-written, and thereby provides a potential road map for appellate judges who might be inclined to rule the same way.

UPDATE: Co-blogger Orin Kerr takes Judge Vinson to task for holding that the mandate is not “proper” because it leads to unlimited federal power. Orin claims that this is is inconsistent with the “words” of Supreme Court precedent, citing a dissent by Justice Thomas in Gonzales v. Raich. However, the words of actual Supreme Court precedent repeatedly emphasize that Congress’ power is not unlimited. For example, in United States v. Lopez, the Court emphasized that ““The Constitution . . . withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation.” In its most recent Necessary and Proper Clause decision, United States v. Comstock, the Court similarly stated that there is no reason to “fear that our holding today confers on Congress a general ‘police power, which the Founders denied the National Government and reposed in the States’” (quoting United States v. Morrison); the Court emphasized that the regulation it was upholding was “narrow” in scope. Gonzales v. Raich itself gives Congress virtually unlimited power to regulate “economic activity,” but does not address the issue raised by the mandate case. Thus, if Judge Vinson is right that the federal government’s argument for the mandate would give Congress unlimited power, then the mandate indeed conflicts with the words of Supreme Court precedent.

Orin is also wrong to suggest that Vinson “used a first principle to trump existing Supreme Court caselaw.” Vinson in fact discussed those precedents, including Raich, in great detail, and noted how the individual mandate case is distinguishable from them (e.g. – the discussion of Raich on pp. 36-44 of his opinion).

As I have argued elsewhere, both Comstock and Raich give Congress vastly greater authority than is actually authorized by the Constitution. But going way too far down this road is not the same as authorizing completely unlimited congressional power. At the very least, it certainly isn’t what the words of the relevant Supreme Court precedents say they have done.

UPDATE #2: I have corrected an unfortunate typo in the title of this post.

UPDATE #3: In an update to his post, Orin insists that Judge Vinson failed to consider existing precedent, which in Orin’s view imposes only “symbolic” limits on congressional power. All I can say is that Vinson in fact discusses current precedent in great detail and explains why it doesn’t cover the mandate case. Moreover, nowhere does that precedent state that the remaining limits to federal power are purely symbolic and would not strike down any significant congressional policies. Thus, if Vinson is correct in concluding that the argument for the individual mandate would give Congress unconstrained authority to mandate anything it wants, then the mandate really is contrary to existing precedent. At the very least, existing precedent certainly doesn’t require upholding the mandate. I discussed the relevant precedent in more detail here, here, and here.

Famed Supreme Court reporter Linda Greenhouse has a very uneven New York Times blog post on the individual mandate litigation and the Supreme Court’s federalism jurisprudence. Some of her points are at least reasonable. For example, I too think it’s quite possible that the Supreme Court will ultimately uphold the mandate; I even agree with her that this is more likely than the opposite result, though the chances of the anti-mandate forces are much better than the many once thought. Greenhouse may also be correct in her speculation that the deciding vote will ultimately be cast by Chief Justice John Roberts.

Some of her other claims are dubious or misleading. For example, she cites my article on United States v. Comstock in support of her claim that Comstock is a key precedent supporting upholding the mandate. “[T]he implications of its elevation of the necessary and proper clause were clear to critics of the newly enacted health care law,” she writes, referring to me (since no other critics are cited). It’s true, as Greenhouse notes, that I wrote in that article that Comstock is “a step in the direction of interpreting the clause as a virtual blank check for Congress to regulate almost any activity it wants” (emphasis added by me for this post). But of course the key argument against the mandate is that it regulates inactivity. Even more important, I also wrote in the same article that the mandate probably fails the five part test established by the Comstock majority (pp. 262-63), and that Comstock doesn’t even address the most important Necessary and Proper Clause issue raised by the mandate litigation – the definition of what counts as a “proper” law (pp. 263-64).

It’s possible that Greenhouse simply doesn’t agree with my analysis of Comstock. That’s fine. As I explained in the article, Comstock is vague on several key points, so multiple interpretations of its meaning are possible. We may not know what it really means until the Supreme Court clarifies it in some future case. But Greenhouse should not cite me in a way that gives the impression that she and I agree about the implications of Comstock for the mandate litigation.

Greenhouse also makes the dubious claim that the Supreme Court’s 2001 decision in Nevada v. Hibbs was “the case that effectively brought an end to the [Rehnquist Court's] federalism revolution.” Hibbs ruled that Congress had the power to force state governments to extend family leave to their employees under the Family and Medical Leave Act, overriding what the Court had previously said was the Eleventh Amendment bar against congressional authorization of private lawsuits against state governments. But, as Greenhouse notes later in her article, Hibbs reached this conclusion on the grounds that the FMLA was a tool for combating sex discrimination, preventing which is a goal of the Fourteenth Amendment (which, according to the Court, supersedes Eleventh Amendment sovereign immunity when the two conflict). Outside the confines of sex and race discrimination, Hibbs left the Court’s Eleventh Amendment sovereign immunity jurisprudence completely intact. And of course it did not undercut the Court’s pathbreaking decisions in Lopez and Morrison limiting Congress’ Commerce Clause authority.

If there is a case that really trimmed the sails of the federalism revolution, it was not Hibbs but Gonzales v. Raich, where the Court endorsed the idea that the Commerce Clause gives Congress the power to regulate almost any “activity,” especially if it can be considered “economic” under a very broad definition of that term. The individual mandate litigation is only viable in the wake of Raich because it represents an almost unique instance where Congress has tried to regulate inactivity.

Strangely, Greenhouse does not even mention Raich in her piece. That may be because doing so would have undermined her speculation that Chief Justice Rehnquist might have voted to uphold the mandate. She extols Rehnquist’s role as the author of Hibbs, but ignores the fact that he joined Justice Sandra Day O’Connor’s forceful dissent in Raich. Since Rehnquist died five years ago, no one can really know what he would think of the mandate. But the man who joined O’Connor’s stinging critique of Raich’s “breathtaking” definition of economic activity on the grounds that the Commerce Clause should not be interpreted to “sweep all of productive human activity into federal regulatory reach” might well have been skeptical of the mandate’s constitutionality.

Here are a few thoughts on today’s federal district court ruling striking down the constitutionality of the Obamacare individual mandate. In my view, the strongest parts of Judge Henry Hudson’s opinion are those where he rejects the federal government’s arguments under the Commerce Clause and the Tax Clause.

On the Commerce Clause, federal government lawyers argued that the mandate is justified because the state of not having health insurance qualifies as economic activity due to the fact that most people will eventually use health care in some form or other. As Judge Hudson points out,“the same reasoning could apply to transportation, housing, or nutritional decisions. This broad definition of the economic activity subject to congressional regulation lacks logical limitation and is unsupported by [the Supreme Court's] Commerce Clause jurisprudence.” The same logic would justify forcing people to purchase cars on the grounds that everyone eventually uses the market for transportation, or forcing them to blog on the grounds that everyone uses the market for information in some way. I addressed this point more fully here.

Judge Hudson also does a very good job of explaining why the government’s claim that the mandate is a tax runs counter to existing Supreme Court precedent distinguishing taxes from regulatory penalties. The mandate is pretty clearly an example of the latter. Here, his reasoning is similar to that which I advocated in the amicus brief in the case that I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars (pp. 16-21). As the Supreme Court explained as recently as 1996 in its most recent ruling distinguishing between taxes and penalties, “[a] tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government.” By contrast, it went on to say, “if the concept of penalty means anything, it means punishment for an unlawful act or omission.” It’s hard to think of a much clearer example of a fine used as “punishment for an unlawful act or omission” than the individual mandate. Various earlier Supreme Court decisions cited by Judge Hudson and in my brief take a similar view.

The weakest part of Judge Hudson’s opinion is his analysis of the government’s Necessary and Proper Clause argument, which merely claims that the Necessary and Proper Clause only authorizes legislation that is linked to an enumerated power, but does not really explain why the mandate is not. In my view, a far better answer to the government’s argument is that the mandate isn’t “proper” even if it is “necessary” and that it runs afoul of the five part test recently outlined by the Supreme Court in United States v. Comstock. I discussed both points in some detail in the amicus brief (pp. 25-30), and in a shorter form here. In fairness to the judge, his neglect of this point may have been due to the fact that the federal government gave it short shrift in their brief (allocating less than two pages to it buried in the middle of a fifty page brief). While co-blogger Orin Kerr and I believe that this is the government’s strongest argument, few other commentators seem to agree. In today’s New York Times Room for Debate forum on Hudson’s opinion, none of the contributors (including four prominent scholars who support the individual mandate) even mentioned this issue. Still, the opinion can and should have addressed this point much better.

Judge Hudson ruled that invalidating the mandate does not require invalidation of any other part of the health care bill. I’m not a real expert on the relevant law of “severability.” So it’s hard for me to say whether this part of decision is correct. Still, it is relevant that the bill doesn’t contain any severability clause of the sort normally used to ensure that the other parts of a law stay in place if one part is invalidated as unconstitutional. Moreover, a few other parts of the law are so closely connected to the mandate that it’s hard to imagine that they are truly severable from it. The best example is the regulation forcing insurance companies to accept customers with preexisting conditions. Interestingly, the White House recently issued a statement claiming that these two provisions are not in fact severable (though federal government lawyers apparently argued otherwise in the litigation before Judge Hudson). My tentative view is that the White House is correct on this issue, and Judge Hudson is wrong.

Finally, it goes without saying that today’s ruling is just one phase in a lengthy legal struggle. Ultimately, the issue will be decided by the federal courts of appeals, and very likely the Supreme Court. At the same time, it is significant that we now have a district court decision striking down the mandate, with a second one likely in the case filed by twenty state governments and the National Federation of Independent Business. The judge presiding over that case has already indicated considerable skepticism about the government’s arguments, and rejected the Tax Clause claim outright. If the district courts had all uniformly upheld the mandate, appellate judges might have hesitated to challenge such a broad emerging judicial consensus. As things actually stand, the issue remains up for grabs. That in itself is a major change from just a few months ago, when conventional wisdom dismissed the anti-mandate lawsuits as frivolous grandstanding with virtually no chance of success.

Yesterday, I published an op ed on the state of the individual mandate litigation in the Richmond Times-Dispatch:

When 21 states and several private groups initiated lawsuits challenging the constitutionality of the Obama health care law earlier this year, critics denounced the suits as frivolous political grandstanding. But it is increasingly clear that the plaintiffs have a serious case with a real chance of victory.

The suits focus primarily on challenges to the new law’s “individual mandate,” which requires most American citizens to purchase a government-approved health insurance plan by 2014 or pay a fine….

The judges considering the Florida and Virginia cases have both issued rulings rejecting the federal government’s motions to dismiss the suits and indicating that the mandate can’t be upheld based on current Supreme Court precedent. By contrast, Michigan district Judge George Caram Steeh wrote a decision concluding that the mandate is constitutional. But even he agreed that the case raises an “issue of first impression.”

The op ed focuses primarily on the recent district court decisions in the Virginia, Michigan, and Florida cases, which I blogged about in more detail here, here, and here. So there will be few new points for those who have closely followed my previous VC writings on the mandate litigation. My main purpose in the op ed was to briefly analyze the three rulings and explain why the anti-mandate plaintiffs have a strong case that could well prevail, even though they still face an uphill struggle.

I would add that the results of the recent election modestly increase the chances that the plaintiffs will win. Federal courts are unlikely to strike down a major federal policy initiative that has strong presidential, congressional, and popular support. But last week’s elections brought to power a House majority that opposes the Obama health care plan, strengthened plan opponents in the Senate, and reaffirmed that it remains unpopular (although the election turned primarily on the economy, the health care plan probably increased the magnitude of the Democrats’ defeat). A recent AP poll found that 52% of likely voters oppose the plan, with 41% supporting it, and strong opponents greatly outnumbering strong supporters.

Ideally, such “legal realist” factors should not influence judicial decision-making. But the historical evidence suggests that they often do. Judges are unlikely to strike down the mandate merely because the political winds are blowing against it. But those inclined to do so for other reasons are now less likely to be deterred by fear of a showdown with a president, Congress, and public opinion unified against them.

There are several interesting aspects of today’s Florida federal district court ruling rejecting the government’s motion to dismiss a challenge to the Obama health care plan’s individual mandate brought by 20 states and the National Federation of Independent Business. First, as Randy Barnett emphasizes, this ruling, like the similar Virginia decision before it, further undercuts claims that the lawsuits against the mandate are either frivolous or clearly precluded by existing precedent. Even the recent Michigan district court ruling upholding the mandate conceded that it was a case of “first impression” (although the judge also tried to argue that the mandate ultimately does fit under current doctrine).

I. Judge Vinson Rules that the Mandate is Not a Tax.

Second, Judge Roger Vinson rejected outright the federal government’s claim that the mandate is a “tax” that is authorized by Congress’ authority under the Tax Clause. Instead, he concludes that it is a regulatory penalty, a point that I emphasized in my amicus brief in the Virginia case on behalf of the Washington Legal Foundation and a group of constitutional law professors:

Because it is called a penalty on its face (and because Congress knew how to say “tax” when it intended to….), it would be improper to inquire as to whether Congress really meant to impose a tax. I will not assume that Congress had an unstated design to act pursuant to its taxing authority, nor will I impute a revenue-generating purpose to the penalty when Congress specifically chose not to provide one. It is “beyond the competency” of this court to question and ascertain whether Congress really meant to do and say something other than what it did.

As the Supreme Court held by necessary implication, this court cannot “undertake, by collateral inquiry as to the measure of the [revenue-raising] effect of a [penalty], to ascribe to Congress an attempt, under the guise of [the Commerce Clause], to exercise another power.” See Sonzinsky, supra, 300 U.S. at 514. This conclusion is further justified in this case since President Obama, who signed the bill into law, has “absolutely” rejected the argument that the penalty is a tax…. To conclude, as I do, that Congress imposed a penalty and not a tax is not merely formalistic hair-splitting. There are clear, important, and well-established differences between the two. See Dep’t of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 779-80, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994) (“Whereas [penalties] are readily characterized as sanctions, taxes are typically different because they are usually motivated by revenue-raising, rather than punitive, purposes.”); Reorganized CF&I Fabricators of Utah, Inc., supra, 518 U.S. at 224 (“‘a tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government,’” whereas, “if the concept of penalty means anything, it means punishment for an unlawful act or omission”).

Notice that at least in this instance, President Obama’s preenactment claims that the mandate is not a tax have come back to bite him.

The federal government now will not be able to rely on the tax argument at the summary judgment stage of the litigation before Judge Vinson (though they will of course be able to raise it again on appeal). Judge Vinson concluded that he had to resolves the tax issue at this early stage of the litigation in order to address the federal government’s claim that, because this was a tax case, the court lacked jurisdiction under the Anti-Injunction Act.

II. The Commerce Clause and Necessary and Proper Clause Arguments.

The federal government will, of course, be able to raise their Commerce Clause and Necessary and Proper Clause arguments. Here, too, however, Judge Vinson raised serious doubts about the government’s arguments, even though he emphasized that these issues cannot be fully considered at this stage of the process. In his view, the government’s claim that the mandate is clearly supported by existing precedent in this area is “not even a close call.” He emphasized the novel nature of the mandate:

I have read and am familiar with all the pertinent Commerce Clause cases, from Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824), to Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005). I am also familiar with the relevant Necessary and Proper Clause cases, from M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819), to United States v. Comstock, — U.S. —, 130 S. Ct. 1949, 176 L. Ed. 2d 878 (2010). This case law is instructive, but ultimately inconclusive because the Commerce Clause and Necessary and Proper Clause have never been applied in such a manner before. The power that the individual mandate seeks to harness is simply without prior precedent.

Vinson’s analysis of the Commerce Clause precedents (pp. 62-64 of his opinion) is very similar to my discussion of them in our amicus brief (Part I), though I don’t claim any direct influence. As Vinson emphasizes, the prior cases “involved activities in which the plaintiffs had chosen to engage. All Congress was doing was saying that if you choose to engage in the activity of operating a motel [Katzenbach v. Heart of Atlanta Motel] or growing wheat [as in Wickard v. Filburn], you are engaging in interstate commerce and subject to federal authority.” In this case, by contrast, “[t]he individual mandate applies across the board. People have no choice and there is no way to avoid it….. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive.” There is a slight error in Vinson’s analysis here. Wickard did not hold that growing wheat for use on a commercial farm was itself “interstate commerce.” Rather, it could be regulated because it was intrastate state economic activity that, in the aggregate, has a “substantial effect” on interstate commerce.

Finally, Judge Vinson ruled that all the plaintiffs had standing (continuing a trend from the previous two cases), dismissed three weak federalism-related claims put forward by the state plaintiffs, and refused to dismiss their claim that the funding provisions of the act violated constitutional restrictions on “coercion” of states through conditional federal spending grants. Vinson concluded that this latter argument was just barely strong enough to get to the summary judgment stage. For reasons I may blog about later, I believe that the states’ coercion argument is correct under the text of the Constitution, but highly unlikely to prevail under current Spending Clause doctrine.

Obviously, this is only a ruling on a motion to dismiss. Judge Vinson could end up accepting the government’s Commerce Clause or Necessary and Proper Clause arguments when he decides later whether to grant summary judgment (though I think that improbable based on what he wrote in today’s opinion). Whatever he decides, the case will be appealed to the Eleventh Circuit Court of Appeals. It is quite likely that the issue will eventually be decided by the Supreme Court. It is still my view that the Court is more likely to uphold the mandate than strike it down, though the latter is far from impossible. That said, today’s ruling is certainly a victory for the anti-mandate plaintiffs.

UPDATE: Orin Kerr asks why Judge Vinson didn’t seriously address the federal government’s Necessary and Proper Clause argument, other than to say that the relevant precedents don’t cover the issues raised by this case. It’s a reasonable question. I agree that he should have focused on it more. On the other hand, it’s important to remember that this was merely a motion for dismissal and he only needed to consider the argument to the extent of showing that the issue can’t be clearly and easily resolved in the federal government’s favor. Moreover, the federal government’s own brief in favor of dismissal gives short shrift to the Necessary and Proper argument (less than 1 page buried near the end of a 50 page brief). The Justice Department instead emphasizes the Commerce Clause and Tax Clause arguments, both of which Vinson considers at length. I suspect Vinson also believed that much of what he said in reference to the Commerce Clause issue also applies to the Necessary and Proper Clause. The opinion (pp. 62-64) seems to consider the two issues in tandem, though this point is not as clear as it should be. In sum, it seems to me that neither Judge Vinson nor the Obama Justice Department shares my and Orin’s view that this is the federal government’s best argument.

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.

Orin has replied to my post explaining why current Supreme Court doctrine doesn’t support the constitutionality of the Obamacare individual mandate under the Necessary and Proper Clause.

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.

In a recent post, co-blogger Orin Kerr outlines what has become the standard argument that the Obama health care plan’s individual mandate is authorized by the Necessary and Proper Clause. The claim is that the goal of the legislation is to regulate commerce in health insurance (which, under current doctrine, is a permissible end under the Commerce Clause) and the individual mandate is a “necessary and proper” means even if it isn’t one that comes under one of Congress’ enumerated powers by itself.

I think this is probably the government’s best argument. But it’s not nearly as much of a slam dunk – even under current doctrine – as Orin and others imagine. I explain why in greater detail in my recent amicus brief on behalf of the Washington Legal Foundation and a group of constitutional law scholars (pp. 23-30). To summarize, there are two major problems with the argument: the mandate flunks the five part test outlined in the Supreme Court’s recent decision in United States v. Comstock, and it is not “proper.” The Court has (wrongly in my view) adopted a highly permissive definition of what counts as “necessary.” But proving “necessity” is not enough for the government to win its case.

I. The Comstock Five Part Test.

Comstock outlines a five part test that applies to assertions of power under the Necessary and Proper Clause. As I explained here, in my recent article on Comstock (pp. 260-67), and in the brief (pp. 25-28), the mandate flunks at least 3 of the five prongs and is questionable under a fourth:

[The Court] lists five factors that determined the outcome [in Comstock]:

We take these five considerations together. They include: (1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in light of the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope. Taken together, these considerations lead us to conclude that the statute is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. (emphasis added).

[T]he Obamacare individual health care mandate, is certainly not “narrow in scope” (it forces millions of people to buy a product they may not want), does not “accommodate state interests” to the extent the Court claims the Comstock legislation does [that legislation allowed states to opt out essentially at will], and may lack a comparable “long history of federal involvement” (the federal government has often regulated health care, but never by forcing individuals to purchase products) [federal insurance regulation of any kind was forbidden by Supreme Court precedent until 1944, and health insurance regulation did not become common until well into the post-WWII era; in Comstock, the Court pointed to a 155 year history of relevant federal regulation].

In the article and the brief, I also explain why the mandate’s status under prong 2 (the “sound reasons” for its enactment) is at least questionable. Prong 1 – the breadth of the Necessary and Proper Clause – does not vary from case to case and therefore cannot justify upholding a statute by itself. If it could, the other four prongs would be superfluous.

I’m no fan of the Comstock five prong test. I think it’s vague, confusing, and flawed in various other ways as well. I would much rather the Court junk the test and strike down the mandate on textualist and originalist grounds. But the test is clearly part of current doctrine and the individual mandate doesn’t do very well under it.

II. The Proper Meaning of “Proper.”

The second doctrinal problem with the Necessary and Proper rationale for the mandate is that, under the Clause, legislation must not only be “necessary,” it also has to be “proper.” The Supreme Court has recognized this at least since M’Culloch v. Maryland. But it has said very little about what “proper” actually means. Under the text and original meaning of the Constitution (which the Court is more likely to resort to in cases where there is little or no relevant precedent), “proper” at the very least means that the federal government cannot claim virtually unlimited power (we cite to works discussing some of the relevant evidence in the amicus brief). Otherwise, it would render all or most of Congress’ other enumerated powers completely superfluous, making a hash of the text.

And the logic of the government’s position does indeed lead to virtually unlimited federal power. Just about any mandate the government might care to impose is “rationally related” to some possible effort to affect commerce. If Congress were to mandate that every American citizen wake up by 7 AM and exercise for half an hour before leaving for work, that might be considered “rationally related” to the purpose of increasing worker health and productivity, which in turn would increase interstate commerce. For a more detailed and thorough argument as to why the mandate is “improper” see Randy Barnett’s important recent article (pp. 34-41).

In addition to these two major points, there are also some other holes in the government’s Necessary and Proper Clause case. For example, Orin, like the government, claims that the “end” of the legislation is to regulate interstate commerce. However, under current law, virtually all purchases of health insurance are purely intrastate commerce. Buying health insurance across state lines is actually forbidden by law, a point I emphasized in this article. This doesn’t completely defeat the government’s argument under current doctrine (though I think it should be a deal-breaker under the constitutional text). But it certainly weakens it further by attenuating the connection between the mandate and any actual regulation of interstate commerce. As the Court explained in United States v. Lopez, the government is not permitted to enact regulations that rely on rationales that “pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” What is true for the Commerce Clause is also true for the Necessary and Proper Clause.

III. The Bottom Line.

There is a strong argument against the health care mandate under current Supreme Necessary and Proper Clause doctrine. At the very least, there is no precedent that clearly decides the issue in favor of the government. And the recently announced Comstock five part test is potentially a major millstone around the government’s neck.

I don’t claim that the doctrine definitively resolves the issue against the mandate. Much of the relevant precedent is vague. It’s hard to predict how the Court will apply the five part test in the future, and even harder to foresee what it might do with the meaning of “proper.” But there is no doctrinal slam dunk here for the government. If the Court wants to uphold the mandate under the Necessary and Proper Clause, it can do so. But it will have to make some new law to get there.

UPDATE: I may not have time to read comments or reply to anything Orin or others might post in response for several days, because I am facing an article deadline.

Today, we filed an amicus brief in Virginia v. Sebelius, one of the cases challenging the constitutionality of the Obama health care plan’s individual mandate, which requires nearly all Americans to purchase health insurance by 2014 or pay a fine. I wrote the brief on behalf of the Washington Legal Foundation, a leading pro-free market public interest law firm, and fourteen prominent constitutional law scholars (this was the pro bono project that I finished right before my wedding).

The brief signers include VC co-conspirators Jonathan Adler, David Kopel, and Todd Zywicki, along with other well-known constitutional law scholars such as James Ely (Vanderbilt), Kurt Lash (University of Illinois), Gary Lawson (BU), Steven Presser (Northwestern), and others. Also among the signers is Professor Steven Willis of the University of Florida, coauthor of an important article explaining why, even if the mandate is a tax, it is not a tax authorized by the Constitution. Co-blogger Randy Barnett is filing his own amicus brief along with the Cato Institute and Competitive Enterprise Institute.

If nothing else, I hope the brief will help dispel the myth that there is an expert consensus to the effect that the mandate is constitutional (see also here). It should by now be obvious that many well-known and highly respected scholars believe otherwise.

The brief covers all three provisions of the Constitution that the government claims authorize the mandate: The Commerce Clause, the Tax Clause, and the Necessary and Proper Clause. Part I addresses the Commerce Clause and includes what I think is the most thorough discussion so far of why the mandate is not authorized by the Supreme Court’s broadest-ever Commerce Clause decision, Gonzales v. Raich (pp. 6-10). Part I also addresses many other relevant Commerce Clause decisions, including lower court cases. Part II covers the Tax Clause, emphasizing that the mandate is a regulatory penalty, not a tax as defined by Supreme Court precedent (pp. 16-21). Finally, Part III discusses the Necessary and Proper Clause. Among other things, it explains why the mandate runs afoul of the five part test established in the Supreme Court’s most recent Necessary and Proper Clause decision, United States v. Comstock, which I also discussed in detail in this article.

Because this is a district court brief, we take the Supreme Court’s current precedents as given and do not consider the possibility that that precedent might be flawed. Obviously, a district judge has no authority to overrule or cut back Supreme Court decisions. My own view, and that of many of the WLF brief signers, is that current precedent has numerous defects and often gives the federal government far more power than the text and original meaning of the Constitution actually permit. But even under Court’s overly permissive current doctrine, the mandate has serious flaws.

Although the early skirmishing has so far gone against the government, it is quite possible that the Supreme Court will ultimately uphold the mandate. But if it does, it won’t be for lack of strong arguments the other way.

UPDATE: I should note that the scholars who signed the brief are far from an exhaustive list of those who believe the mandate is unconstitutional. Rather, they were ones whom I could reach and persuade to sign on short notice. WLF and I decided not to reach out to potential signers until we had a nearly complete draft. There are other prominent legal scholars who believe the mandate is unconstitutional who did not sign because they are writing their own amicus briefs (as in the case of co-blogger Randy Barnett), because I was not able to reach them in time, or possibly because they don’t want to sign on to some of the specific points I made even if they agree with the bottom-line conclusion. Among the other well-known scholars who believe the mandate is unconstitutional are Richard Epstein, Michael McConnell, and Jonathan Turley.

My recent Cato Supreme Court Review symposium article on United States v. Comstock is now available on SSRN. The case has important potential implications for the litigation over the constitutionality of the Obama health care plan. Here’s the abstract:

Those who argue that the federal government has nearly unlimited authority often cite the Necessary and Proper Clause. That clause gives Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The Supreme Court’s recent decision in United States v. Comstock is a step in the direction of interpreting the clause as a virtual blank check for Congress to regulate almost any activity it wants. But the decision is vague on several key points, and its long-term effects are difficult to predict.

Part I of this article discusses Section 4248 of the Adam Walsh Act, the provision the Court upheld in Comstock. It also summarizes the majority, concurring, and dissenting opinions. Part II criticizes the Court’s reasoning. The majority’s extremely broad interpretation of the Necessary and Proper Clause may render much of the careful enumeration of congressional power in Article I of the Constitution superfluous. In addition, it tries to link the statute to a nebulous congressional authority to act as a “custodian” for federal prisoners that is itself not enumerated anywhere in the Constitution.

Part III considers the implications of Comstock for the future. The decision could strengthen the government’s case in the ongoing litigation over the massive health care bill passed by Congress in March 2010. Comstock’s broad interpretation of the Necessary and Proper Clause could be used to buttress the government’s constitutional justifications for the new health care law’s “individual mandate.” But the mandate might run afoul of the vague five-factor test that was a key element of Comstock. The ultimate impact of the decision may depend on how that test is interpreted and applied.

I previously blogged about Comstock here.

UPDATE: I have corrected a typo in the title of the post.

The final event at the annual meeting of the Southeastern Association of Law Schools was a Federalist Society panel on the constitutionality of the centralized health control law. Participants were Randy Barnett (Georgetown, VC), Jack Balkin (Yale),  Gillian Metzger (Columbia), and me (Denver, VC). The moderator was  Bradley A. Smith (Capital). Available here. The recording is 93 minutes, although the event itself ran a little longer. While the focus was on the two state suits (Virgina, and the 20-state coalition), we also discussed some of the additional issues raised by the five other suits, such as due process rights to medical privacy and decision-making.

The Washington Examiner recently posted my op ed on Monday’s ruling in the Virginia health care lawsuit, which I previously discussed in this post:

Monday’s federal district court decision refusing to dismiss a lawsuit challenging the constitutionality of the Obama health care plan is an important step forward for opponents of the plan.

The suit by the state of Virginia focuses primarily on a challenge to the “individual mandate” element of the plan, which requires most American citizens and legal residents to purchase a government-approved health insurance plan by 2014 or pay a fine for noncompliance……

Judge Henry Hudson wrote that the individual mandate “literally forges new ground and extends Commerce Clause powers beyond its current high watermark.” As he put it, “No reported case from any federal appellate court has” ruled that Congress has the power to “regulate a person’s decision not to purchase a product….”

The legal battle over the Obama health care plan is far from over.

Nonetheless, Hudson’s ruling is a victory for those who believe that the individual mandate is unconstitutional. It makes it difficult to argue that the lawsuits against the mandate are mere political grandstanding with no basis in serious legal argument.

In this recent op ed, Harvard constitutional law professor Charles Fried argues that the Supreme Court’s recent decision in United States v. Comstock proves that the Obama health care bill’s mandate requiring individuals to buy health insurance is constitutional:

A recent 7-2 Supreme Court decision affirming the constitutional power of Congress to allow the indefinite detention of sexually dangerous child pornographers after the end of their federal sentences has the surprising effect of showing just how far-fetched are the constitutional objections to the new health care legislation.

One objection holds that the Constitution’s clauses giving Congress the power to regulate interstate commerce do not give Congress the power to impose a modest penalty (up to about $700) on people who could — but do not — buy health insurance.

To see why this is a bad argument, consider the steps by which the Court held that Congress has the power to keep sexually dangerous child pornographers in confinement: The Constitution explicitly gives Congress the power to regulate interstate commerce. And it has long been the law that Congress can forbid commerce in things that might be harmful. Those who traffic (or possess, in the case of child pornography) such things can be prosecuted and imprisoned.

The recent Supreme Court ruling, United States v. Comstock, added that the power to imprison implies an obligation to protect the public from dangerous people even after they had served their sentences. There can be no doubt that insurance, and particularly health insurance, is commerce with interstate effects that Congress may regulate.

For the health regulation to work, though, it is “necessary and proper’’ — the clause explicitly in play in Comstock — to nudge (with the $700 penalty) the young and healthy to enter the insurance pool, and not to wait until they are old and infirm.

Insurance just won’t work if you could wait until your house is on fire to buy it. But, say the objectors, this is not penalizing someone for doing something harmful; it’s penalizing him for not doing something, and that’s somehow different.

It is not. Congress has the power to enact the regulatory scheme and to design it in a way that is “necessary and proper’’ to its good functioning, and that means sweeping in the unwilling.

Fried is mistaken both in his interpretation of Comstock and in his broader argument. Regarding Comstock, he ignores the fact that the Supreme Court upheld the law in question at least in large part because it passed a five part test that the health care mandate may well run afoul of, a point I emphasized here. Unlike the law upheld in Comstock, Obamacare is not “narrow in scope,” does not “accomodate state interests,” and arguably is not based on a long history of federal involvement (the feds have long regulated health care, but never by forcing people to purchase products they don’t want. And, as Randy Barnett points out, Comstock does not consider the issue of the meaning of the word “proper” in the Necessary and Proper Clause. There is a strong argument that the health care mandate runs afoul of that requirement.

Fried’s claim that the mandate can be justified as a “necessary and proper” adjunct to the regulation of interstate commerce in health care is also problematic. The difficulty, as I explained in this article, is that the health insurance market is not in fact interstate commerce. Under current law, virtually all health insurance purchases are required to be intrastate. Congress may have considerable latitude in adopting mandates that facilitate regulation of interstate commerce. But the same point cannot apply to regulation of internal commerce. If it did, then the combination of the Commerce Clause and the Necessary and Proper Clause would render all the rest of Congress’ Article I powers superfluous. After all, virtually any mandate can facilitate the regulation of some kind of commerce in some way. There would be no point to the enumeration of eighteen separate congressional powers in Article I if the Necessary and Proper Clause and Commerce Clause have as broad a meaning as Fried claims.

Fried also briefly addresses the issue of whether the health care mandate is “proper:”

But even granting Congress’s power under the commerce and “necessary and proper’’ clauses, is it not an offense to constitutional liberty to impose the $700 penalty? Is the mandate not independently constitutionally “improper’’?

That objection would complain that such a mandate violates some constitutional liberty even if enacted by a state (as Massachusetts has done). Here again, Comstock is instructive. The convicted child pornographer claimed that he was deprived of his constitutional liberty by continued detention after he had served his sentence, but the Supreme Court had decided many years ago that Kansas could, with proper procedural safeguards, do just that. And if it violated no liberty for Kansas to do it, then neither did it violate any liberty for Congress to do it.

A more telling precedent is the Supreme Court’s 1905 decision in Jacobson v. Commonwealth, which rejected a complaint against Massachusetts’s compulsory vaccination law that it said infringed the “inherent right of every freeman to care for his own body and health in such way as seems to him best.’’

Here too, Fried’s argument is unpersuasive. The word “proper” does not refer only to protection of individual liberties guaranteed elsewhere in the Constitution. If it did, it would be superfluous. The enumeration of those rights elsewhere in the document would protect them against federal infringement even if the word “proper” did not. Rather, as Randy Barnett explains in this article, “proper” refers to the requirement that the federal law in question not undermine the constitutional structure of federalism and enumerated powers. The exact boundaries of “proper” are far from clear. But an interpretation of the Necessary and Proper Clause that gives Congress virtually unlimited power and renders most of the rest of Article I superfluous is surely “improper” if anything is.

As I have previously written, I think it is more likely than not that the courts will uphold the individual mandate. The Comstock decision makes that outcome more probable than before. But Fried greatly overstates the significance of Comstock, and his other arguments also have serious shortcomings.

I tend to agree with Eugene that today’s Supreme Court decision in United States v. Comstock is very bad news for constitutional federalism. However, the ultimate import of the decision is hard to gauge because the majority opinion is ambiguous on at least one crucial point: whether Necessary Proper Clause cases are governed exclusively by the ultradeferential “rational basis” test, or whether courts should also weigh the presence or absence of five other factors the Court relied on in upholding the statute under which Comstock was detained.

I. The “Rational Basis” Test.

The big problem is not just that the Court ruled that Congress had the power to detain “sexually dangerous” federal prisoners who have already completed their sentences. By itself, this is a relatively minor policy (except, of course, for the people detained). The really dangerous element of the majority opinion is that it adopts the highly deferential “rational basis” test for assessing assertions of power under the Necessary and Proper Clause, holding that “in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.”

As Justice Kennedy points out in his concurring opinion (where he rejects this part of the Court’s holding), this highly deferential approach is extremely problematic:

The terms “rationally related” and “rational basis” must be employed with care, particularly if either is to be used as a stand-alone test. The phrase “rational basis” most often is employed to describe the standard for determining whether legislation that does not proscribe fundamental liberties nonetheless violates the Due Process Clause. Referring to this due process inquiry, and in what must be one of the most deferential formulations of the standard for reviewing legislation in all the Court’s precedents, the Court has said: “But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 487–488 (1955). This formulation was in a case presenting a due process challenge and a challenge to a State’s exercise of its own powers, powers not confined by the principles that control the limited nature of our National Government. The phrase, then, should not be extended uncritically to the issue before us.

II. Is the Real Standard Actually a Five Factor Test?

There is one aspect of the majority’s reasoning that may give hope to advocates of judicial enforcement of federalism. Near the end of the Court’s opinion, Justice Breyer lists five factors that determined the outcome:

We take these five considerations together. They include: (1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute’s enactment in light of the Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute’s accommodation of state interests, and (5) the statute’s narrow scope. Taken together, these considerations lead us to conclude that the statute is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. (emphasis added).

This immediately raises the question of what happens in a case where one or more of these considerations cuts the other way. Like Randy Barnett, I particularly have in mind the Obamacare individual health care mandate, which is certainly not “narrow in scope” (it forces millions of people to buy a product they may not want), does not “accomodate state interests” to the extent the Court claims the Comstock legislation does, and may lack a comparable “long history of federal involvement” (the federal government has often regulated health care, but never by forcing individuals to purchase products).

The ultimate impact of Comstock will depend on whether the key holding is the imposition of the rational basis test (which could potentially be used to uphold almost anything), or whether it is the five factor test quoted above, which is much less definitive. Only five justices signed on to the majority opinion; Justices Alito and Kennedy concurred on narrow grounds and made clear that they reject the rational basis test. If even one of the five decides that the multifactor test is the true operative standard (most likely Chief Justice Roberts), Comstock might turn out to be less dangerous that it initially seems.

III. My View of the Merits.

I think the Court got this one badly wrong, and that the challenged statute should have been invalidated. I explained my reasoning in this post, where I commented on the oral argument:

[Solicitor General Elena] Kagan fails to link the confinement of these individuals to any other enumerated power of the federal government. She tries to link it instead to “the Federal power to operate a criminal justice system.” However, there is no separate enumerated power to operate a criminal justice system. Rather, Congress is only able to operate such a system in so far as it is necessary to implement one of its other powers (e.g. — to enforce punishments to deter people from violating federal laws that enforce one of those other powers). The power to incarcerate “sexually dangerous” inmates who have completed their sentences does nothing to assist in the enforcement of federal laws that are actually authorized by any of Congress’ enumerated powers…..

Essentially, the government’s argument rests on the assertion that Congress has the power to engage in any “beneficial” activity that is in some way connected to something it can do under its enumerated powers, even if that “beneficial” activity does nothing to faciliate the actual implementation of those powers. Pretty much anything Congress might want to do could be justified on those grounds. As Comstock’s lawyer put it in his part of the oral argument, “the government’s argument essentially collapses into the notion, well, if it’s a good idea, it must be necessary and proper to do it.” If the Court accepts this reasoning, it would turn the Necessary and Proper Clause into a free-floating grant of unlimited power.

The above passage criticizes Solicitor General Elena Kagan’s arguments for the government. But it applies also to the Court’s opinion, which similarly tries to link the statute to Congress’ authority to operate a criminal justice and penal system.

I also agree with most of the strong critique of the majority opinion in Justice Thomas’ dissent (joined by Justice Scalia). Scalia’s support for Thomas’ position in this case suggests that he may be having second thoughts about the very broad view of the Necessary and Proper Clause that he embraced in Gonzales v. Raich. It’s also worth noting that the dissent extensively cites co-blogger Randy Barnett’s excellent article “The Original Meaning of the Necessary and Proper Clause.”

Overall, I think this is a very unfortunate decision, particularly in so far as Chief Justice Roberts endorsed the majority opinion. I am probably less optimistic than Randy Barnett. At the same time, there is a crucial ambiguity in the Court’s reasoning that might reduce the decision’s future impact. And the coalition between Roberts and the four liberals might prove to be more fragile than it currently seems.

One source of the impending constitutional challenge to the Obamacare mandate is that exceeds the enumerated powers granted to Congress under Article I, section 8. For example, that the people’s grant to power to Congress to regulate commerce  among the several states does not include the power to compel people to engage in commerce. Jack Balkin, writing in the New England Journal of Medicine, has two responses: 1. Yes it does, because of Wickard and Raich, since people without insurance will eventually get sick and then buy health services; and allowing these people to buy health services outside the congressional system would undermine the congressional regulation. 2. The mandate is structured as a tax.

For the moment, let’s put aside the question of whether the Obamacare tax is an Article I tax, or a 16th Amendment income tax. Does Congress have the infinite power to control people’s behavior (such as by ordering them to engage in commercial transactions) via the tax power?  I suggest not. When the Bill of Rights was being debated in front of Congress, the skeptical Rep. Theodore Sedgwick of Massachusetts asked if there should also be an enumeration that “declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper.” 1 Annals of Congress 759-60 (Aug. 15, 1789). Sedgewick’s point was that national laws about bedtimes and hat-wearing were self-evidently beyond the authority of Congress.

However, if the tax power means that Congress can order citizens to buy something they don’t want to buy, why does Congress not have the power to assess taxes on people who get too little sleep, or too much sleep, and thereby harm their own health and the public fisc? Or who wear hats so little that they increase their risk of skin cancer? Or who wear hats so often that they dangerously reduce their levels of vitamin D? In Sonzinsky v. United States (1937), the Supreme Court declared that it would not inquire into hidden regulatory motives that might have motivated a tax. But in Sonzinsky, the underlying activity (running a for-profit commercial business selling machine guns) was unquestionably within the scope of commercial activities that might be subject to an excise tax.

In contrast, not buying health insurance is not in its nature a commercial taxable activity. Neither is wearing a hat, or getting up when you please, or going to bed when you think it proper.

Sonzinsky is deferential to congressional motives, but it does nothing to support the claim that non-commercial activity may be taxed. Construing the tax power as less than infinite–as not encompassing the power to tax bedtimes or the decision not purchase a product–is strongly supported by the Ninth Amendment. This is so whether one agrees with Randy Barnett’s view of the Ninth Amendment (as an enforceable guarantee of natural rights) or with Kurt Lash’s (as a rule that enumerated powers should be narrowly construed so as not to violate natural rights, including the right of self-government in the states).

Finally, as Jack Balkin has ably argued, “Constitutional change occurs because Americans persuade each other about the best meaning of constitutional text and principle in their own time. These debates and political struggles help generate Americans’ investment in the Constitution as their Constitution and they create a platform for the possibility – but not the certainty of its redemption in history.”

Americans today are not bound to meekly accept the most far-ranging assertions of congressional power based on large extrapolations from Supreme Court cases that themselves come from a short period (the late 1930s and early 1940s) when the Court was more supine and submissive to claims about centralized power than was any other Supreme Court before or after in our history. American citizens, in the political process and in their personal lives, will ultimately have the final word on the Constitution.

A large and permanent majority of the American people immediately accepted Social Security as a constitutional solution to poverty among the elderly and to massive unemployment (since Social Security would open up jobs by encouraging people to retire sooner). The American people have not accepted Obamacare as a constitutional solution to health insurance problems. If the American believe that there is a “crisis” about the high cost of health insurance, then the American people can also believe that the solution is not to punish people for refusing to buy overpriced insurance that they don’t want. The American people can reject the notion that our Constitution should be contorted and distorted to accommodate such a destructive and intrusive scheme.

It is eminently within the authority of We the People to act politically on our constitutional beliefs that the congressional power to regulate interstate commerce does not extend to forcing people to buy a product which Congress has forbidden to be sold across state lines; that the power to regulate interstate commerce is not the power to compel a person to participate in instrastate commerce; and the that power to levy income or excise taxes does not include the power to impose punishment in the form of punitive taxes on persons who choose not to buy something–or who choose whether to wear hats and when to sleep.

p.s. PENNumbra had a good debate on the topic last fall, featuring Jack Balkin vs. Lee Casey & David Rivkin.