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.