If It’s Necessary and Proper, Then It’s Proper: A Reply to Ilya

I’ve enjoyed my exchange with Ilya on the health care mandate, although I find myself in the exchange becoming increasingly of the view that this isn’t a difficult issue under current Supreme Court caselaw. Here’s one more round to try to sharpen the debate between us.

The crux of the disagreement between Ilya and I boils down to the Necessary and Proper clause. The Supreme Court has often entered decisions on the scope of the Necessary and Proper clause, construing the clause quite broadly and upholding statutes on the ground that it did not violate the clause. In my view, those cases pretty much end the matter: For better or worse, those cases are so deferential that they point pretty clearly to the view that the individual mandate satisfies the standard.

In contrast, Ilya sees the Supreme Court cases on the Necessary and Proper clause as answering when legislation is “necessary” but not reaching what is “proper.” Thus, as I understand Ilya’s view, the cases on what satisfies the Necessary and Proper Clause are not particularly helpful because they do not expressly reach a conclusion — apparently because challengers forgot to raise the issue — on what is proper. Ilya thus concludes that there is no significant caselaw on what is “proper” and lower courts must construe the meaning of “proper” using text and original meaning unburdened by precedent.

I disagree with Ilya because the cases themselves — and the briefs for that matter — expressly and consistently articulate the question they decide as being whether the challenged laws are permitted under requirements of the the Necessary and Proper Clause as a whole. The doctrine generally treats “necessary” and “proper” together, and litigants either brief them together or in some cases argue the “proper” issue separately. Just to pick one example, in United States v. Comstock, the challenger’s brief expressly argued that the law was not proper. And here is how the Supreme Court articulated its holding in the first paragraph of the majority opinion:

Here we ask whether the Federal Government has the authority under Article I of the Constitution to enact this federal civil-commitment program or whether its doing so falls beyond the reach of a government “of enumerated powers.” McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). We conclude that the Constitution grants Congress the authority to enact §4248 as “necessary and proper for carrying into Execution” the powers “vested by” the “Constitution in the Government of the United States.” Art. I, §8, cl. 18.

There are other examples, but I think you get the idea. The significance is that if a law satisfies the Necessary and Proper Clause, then it must be both necessary and proper. And as a result, logically it must be “proper.” In my view, this means that the cases sustaining laws challenged under the Necessary and Proper Clause — and the cases articulating the very deferential standard of the Necessary and Proper Clause — do not give any room for an argument that what is “proper” is an open legal question permitting judges to insert a degree of scrutiny not found in the Supreme Court’s cases. Just based on current Supreme Court doctrine, we’re stuck with the very deferential standard found in the Supreme Court’s cases on the Necessary and Proper clause. So it seems to me, at least.

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