The Volokh Conspiracy

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.

Co-blogger Ken Anderson asks:

Here’s my question to the VC Staff: Are there any implications of Comstock, in the hearings, briefs, arguments, suggesting that anyone involved is weighing this up at least partly in terms of implications for what it might mean down the road for a Congressional national security administrative detention statute or authority? I say this particularly thinking that SG Kagan has long been persuaded of national security arguments that other liberals might not be. Is it right, or too far a reach, to think that members of the Court are also thinking how this decision might affect those possibilities, to enhance or restrain, down the road? Or am I just seeing the world too much through a national security lens?

These issues were not discussed in the briefs of the parties, the oral arguments, or any of the amicus briefs I have seen (though I haven’t read all of the latter). Even if Comstock wins, I don’t think the decision will have much impact on national security detentions. The Comstock litigation only addresses Congress’ power to confine people using its powers under the Commerce Clause and the Necessary and Proper Clause. The detention of terrorists and other enemy combatants is authorized by some combination of Congress’ power to declare war, its power to “raise and support Armies” (which presumably includes those personnel responsible for holding enemy prisoners); its power to establish laws for the “government and regulation” of the armed forces (including procedures for detaining enemy combatants), and its power to “define and punish” offenses under the “law of nations” (which includes the power to punish enemy combatants who have committed war crimes). Some detentions might also be authorized by the president’s power as commander-in-chief, though in my view such detentions are subject to congressional regulation.

Corey Rayburn Yung has a detailed discussion of today’s Comstock oral argument. See here and here. He also predicts a 6-3 victory for the government. Other analysts gave widely differing predictions. Regular VC readers may recall that Comstock is the case where the government is defending a statute allowing it to civilly confine “sexually dangerous” offenders after the completion of their federal prison terms – even if the crimes for which they were originally convicted have no connection to sexual predation. Somewhat strangely, in my view, the government’s brief focused almost entirely on the Necessary and Proper Clause, and largely ignored potentially effective arguments that they could prevail under current Commerce Clause precedent. To my mind, the most telling exchange in the oral argument was this one between Justice Scalia and Solicitor General Elena Kagan:

JUSTICE SCALIA: General Kagan, you are relying on the Necessary and Proper Clause, right? You say: But necessary and proper doesn’t mean it is necessary and proper for the good of society. It means it is necessary and proper for the execution of another power that the Federal Government is given by the Constitution.

Now why is this necessary for the execution of any Federal power? The Federal criminal proceeding has terminated. The individual is released. You could say it’s necessary for the good of society, but that’s not what the Federal Government is charged with. Why is it necessary to any function that the Federal Government is performing? It has completed its performance of the function of incarcerating this individual until he’s served his punishment.

GENERAL KAGAN: The Court has always said, Justice Scalia that the Necessary and Proper Clause, the question is is it necessary and proper to the beneficial exercise of Federal powers. And so this is, that it is necessary and proper to the beneficial or, what I said before, the responsible exercise of the Federal power to operate a criminal justice system, which includes the responsibility to ensure that those people who have been in custody in that Federal — in that criminal justice system, are not released irresponsibly.

Note that 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. It’s also clear that the federal government can continue to operate a penal system without confining these people. Indeed, failure to confine them doesn’t even make it more difficult for the feds to continue to operate the system. It may actually make those operations easier by freeing up resources that would otherwise be expended on the confinement and care of the “sexually dangerous” former inmates.

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. It’s also worth pointing out that this is the main argument of the government’s brief as well. Kagan’s statement in the oral argument wasn’t just an aberration.

What will the Court decide? It’s hard for me to say. My tentative expectation is that the four liberal justices will vote with the government, since all but newly appointed Justice Sotomayor consistently opposed imposing any meaningful limits on Congress’ enumerated powers in the past (Sotomayor didn’t decide any major cases in this field during her time as a court of appeals judge). I would be surprised if Sotomayor broke with liberal orthodoxy on this particular point, even though she did ask Kagan some skeptical questions at oral argument. I also think that Thomas, Scalia, and Alito will vote for Comstock. In Alito’s case, this prediction is based on his strong pro-federalism record as a court of appeals judge, where he was one of the few lower court judges who voted to strike down a federal law banning machine gun possession. Scalia’s position in this case may be in tension with his extremely broad interpretation of the Necessary and Proper Clause in Gonzales v. Raich (which I discussed here). Still, the oral argument indicates that he is not likely to support the government. Thus, the outcome will probably come down to Kennedy and Chief Justice Roberts, neither of whom tipped his hand much today. To win, Comstock will have to get the support of both. I think the odds are against that. But stranger things have happened in the highest Court in the land.

The original “Nebraska Compromise” (the Kansas-Nebraska Act) was an attempt to compromise a contentious national issue. At least arguably, the abortion spending restrictions in the Senate health care bill fits in this broad description, and like the KNA, the new abortion provision includes an element of state-based choice. However, another provision of the Senate bill is no compromise at all: the requirement that taxpayers in the other 49 states pay the full cost of the extra Medicaid spending that will be necessary in Nebraska because of the Senate bill. “Cornhusker kickback” is the more accurate term for this provision.

Is the Cornhusker kickback constitutional? A recent blog post by University of Montana law professor (and Independence Institute Senior Fellow) Rob Natelson explains the issue for laymen: It’s not an Equal Protection violation, because Equal Protection does not protect states from discrimination. It is a gross violation of the “(1) the General Welfare Clause (Article I, Section 8, Clause 1), designed to prevent taxation for regional or special interest expenditures and (2) the Necessary and Proper Clause (Article I, Section 8, Clause 18), whose ‘proper’ requirement probably was meant to assure that federal legislation met minimal fiduciary standards of fairness.” However, at Natelson notes, the Supreme Court has historically been timid about enforcing those provisions of the Constitution, and after 1937 gave up entirely.

But as I have argued elsewhere, the Constitution is more than merely what the Courts say it is. Even when Courts act as if a constitutional provision had never been written, the People can still act to protect constitutional provisions, through the political process, and through public debate. If the people do so in regards to the “Cornhusker kickback,” they will be acting faithfully to the original meaning of the Constitution. For the original meaning, see: Natelson, Judicial Review of Special Interest Spending: The General Welfare Clause and the Fiduciary Law of the Founders, 11 Tex. Rev. L. & Pol. 239 (2007). See also Natelson, The Agency Law Origins of the Necessary and Proper Clause, 55 Case W. Res. L. Rev. 243 (2004); The General Welfare Clause and the Public Trust: An Essay in Original Understanding, 52 U. Kan. L. Rev. 1 (2003).