Archive | Necessary and Proper

“Great” Powers and Federal Power Over Treaties

In my new article, Rethinking the Federal Eminent Domain Power, I begin by explaining a theory of the Necessary and Proper Clause that I call the idea of “great powers.” Put simply, the idea is that there are some powers that are sufficiently important that they cannot be implied through the Clause, even if they are otherwise useful for carrying out an enumerated power. Depending on your attitude toward textualism, you can either call this an implicit background understanding of the Clause, or you can call it an interpretation of the word “proper” — a power might be too great to be “proper” even if it is “necessary.”

I explain in the article that this idea has a strong historical pedigree. James Madison invoked it in his speech about the unconstitutionality of the national bank. And even the supporters of the bank, like Alexander Hamilton and John Marshall’s opinion in McCulloch v. Maryland, conceded the principle. As McCulloch puts it, there is a class of “great substantive and independent power[s] which cannot be implied as incidental to other powers or used as a means of executing them.”

The idea has also been getting play in the Court more recently. Chief Justice Roberts’s controlling opinion in NFIB v. Sebelius describes the individual mandate as a “great substantive and independent power” (quoting McCulloch), which is why it can’t be upheld under the Necessary and Proper Clause. Chief Justice Roberts returned to the language again in his separate opinion in United States v. Kebodeaux, where he said that “it is difficult to imagine a clearer example of such a ‘great substantive and independent power'” than the “police power.” That is, the Necessary and Proper Clause cannot be interpreted in such a way that would imply that the federal government had [...]

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New Books on the Obamacare Case

A little over a year has passed since the Supreme Court’s momentous decision in NFIB v. Sebelius. Not surprisingly, there is still no consensus on what the Court got right, what it got wrong, and what the long term significance of the case will be. But several interesting books about the case have just been published or are forthcoming in the next few months. And I suspect there are many VC readers who might be interested in some or all of them. Here are my thoughts on them.

I. Josh Blackman, Unprecedented.

For readers who want a blow-by-blow account of the litigation and its history, you can’t beat Josh Blackman’s Unprecedented: The Constitutional Challenge to Obamacare. Blackman – a law professor at South Texas College of Law and prominent legal blogger -interviewed over 100 participants in the case on both sides, and he does a great job of explaining each side’s legal, political, and public relations strategy. The book also does a good job of presenting most of the key legal arguments in a form accessible to nonexperts.

I do have some quibbles with the book. For example, I think that Blackman pays too little attention to the Necessary and Proper Clause issues in the case, which scholars as varied as Andrew Koppelman (discussed below), co-blogger Orin Kerr, and myself all believed was the federal government’s strongest argument. Chief Justice Roberts’ conclusion that the individual mandate was not “proper,” even if it was “necessary” may be one of the most significant aspects of the Supreme Court’s decision. In addition, while Blackman’s account is a useful corrective to claims that Solicitor General Donald Verrilli badly botched the case for the government, I think he goes too far in portraying him as a brilliant legal strategist who foresaw [...]

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The First Anniversary of the Obamacare Decision

Today is the first anniversary of NFIB v. Sebelius, the Supreme Court’s controversial decision in the Obamacare case. It is still too soon for us to fully appreciate the long-term impact of the ruling. We are also still far from reaching any kind of consensus about the correctness of the Court’s decision.

For the moment, however, I’m sticking with the assessment I made in this SCOTUSblog post written on the day the decision was announced:

Today’s 5-4 Supreme Court decision upholding the individual health insurance mandate is an extremely frustrating result for those of us who argued that the mandate is unconstitutional. One might even call it taxing. The plaintiffs came about as close as one can to winning a major constitutional case without actually winning it. It is the legal equivalent of losing the World Series after leading in the bottom of the ninth inning in the seventh game. It is not a happy day for supporters of limited government.

Yet the Court also offers us a measure of hope and vindication. A majority of the justices rejected claims that the mandate is authorized by the Commerce Clause and Necessary and Proper Clause. That has little immediate impact, but bodes well for the future….

As the close 5-4 division in the Court shows, the justices remain deeply divided on federalism issues. Both Chief Justice Roberts’ opinion and the powerful four-justice dissent reaffirm the need to enforce limits on congressional authority. And both accept all or most of the main constitutional arguments against the mandate. The latter will constrain future mandates imposed under the Commerce and Necessary and Proper Clauses. No one can any longer say that the case against the mandate was a sure loser that could only be endorsed by fringe extremists or people ignorant of constitutional

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United States v. Kebodeaux and Congressional Power under the Necessary and Proper Clause

Amidst the hoopla surrounding Fisher v. University of Texas, most people probably missed today’s other potentially significant Supreme Court decision: United States v. Kebodeaux, which deals with Congress powers under the Necessary and Proper Clause. Trevor Burrus of the Cato Institute (who assisted in the preparation of an amicus brief I coauthored on Cato’s behalf in the case) has a good summary of the case and its implications:

In 1999, Anthony Kebodeaux was sentenced to three years in prison for statutory rape. He served his time and was freed. Years later, when Kebodeaux moved intrastate from San Antonio, Texas to El Paso, Texas, he failed to update his change of address within the three-day period as required by the federal Sex Offender Registration and Notification Act (SORNA) of 2006.

Because Kebodeaux was freed from federal custody, the Fifth Circuit ruled that his “unconditional” release meant that Congress had lost jurisdiction over him and that they could not regain it without some action (such as interstate travel) that brought him back into federal jurisdiction. We filed a brief arguing that to allow Congress to assert jurisdiction over someone because he was once in federal jurisdiction would be improper because it would give Congress nearly limitless power. After all, all of us have been in federal jurisdiction at some point. This would be the “Hotel California” theory of jurisdiction: you can check out, but you can never leave.

In today’s opinion, however, Justice Stephen Breyer, writing for Justices Kennedy, Ginsburg, Sotomayor, and Kagan, tactfully sidestepped the “Hotel California” theory by holding that Kebodeaux had never actually checked out of federal jurisdiction, thus repudiating that Fifth Circuit’s characterization of Kebodeaux’s release as “unconditional.” The Court accepted the Solicitor General’s argument that, “through a complex set of statutory cross-references,” Kebodeaux was subject

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The Health Care Case: The Supreme Court’s Decision and its Implications – Now Available for Pre-ordering

The Health Care Case: The Supreme Court’s Decision and its Implications – A new book on last year’s controversial Supreme Court decision on Obamacare is now available for pre-order at Amazon. The book is edited by Columbia law professors Nathaniel Persily, Gillian Metzger, and Trevor Morrison, and published by Oxford University Press. It contains essays on numerous aspects of the health care decision by a wide range of scholars, including VC-ers Jonathan Adler, Randy Barnett, and myself. There is also a large number of contributions by leading scholars on the other side of the issue, including Jack Balkin, Jamal Greene, Andrew Koppelman, Gillian Metzger, and Neil Siegel, among others. The Oxford University Press website has a complete table of contents here.

My own contribution to the volume addresses the Court’s analysis of the Necessary and Proper Clause, and explains why the individual health insurance mandate was not “proper” even if it could be considered “necessary.” An earlier version of that essay is available on SSRN here. [...]

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Why maximal enforcement of federal gun laws is not always a good idea

A common trope of many Second Amendment advocates is to urge more vigorous enforcement of existing federal gun control laws, as the alternative to enacting additional laws. Rhetorically, that’s very effective. But as a policy matter, it is not always a good idea. Consider legislation recently considered by the Senate:

The Manchin-Toomey amendment was supported by the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), although the group later dropped its support for reasons unrelated to the issues raised in this post. Section 102(3) of Manchin-Toomey was the finding that “Congress believes the Department of Justice should prosecute violations of background check requirements to the maximum extent of the law.”

The alternative to Manchin-Toomey was the Grassley-Cruz substitute, which was supported by the National Rifle Association. Grassley-Cruz had a much more detailed program, with supporting funding, to increase federal prosecutions for violations of 18 U.S. Code 922 (the section which defines most of the prohibited acts by persons who are not licensed firearms dealers) and section 924 (the penalties section, with penalties for the various offenses by licensed dealers and by other persons, as well as definitions of some additional crimes). The beefed-up enforcement is in pages 15-26 of Grassley-Cruz.

Both Manchin-Toomey and Grassley-Cruz included a variety of other changes in federal gun laws, and some of them were very constructive. But as for the prosecution provisions, I think they were dubious.

To begin with, much of what is in section 922 is possessory offenses, occurring entirely within a single state. Supposedly, these provisions are enacted under Congress’s power “to regulate Commerce…among the several States.” I realize that Supreme Court since 1937 has usually been reluctant to rule that a federal criminal statute is outside the interstate commerce power. However, that judicial deference to congressional statutes [...]

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My Review of Einer Elhauge’s Obamacare on Trial

The Liberty Law Blog recently posted my review of Harvard Law Professor Einer Elhauge’s book Obamacare on Trial, which was possibly the first academic book on the Obamacare litigation published by a legal scholar since the Supreme Court issued its decision in NFIB v. Sebelius. Elhauge is a topnotch scholar, and his book makes some interesting points in defense of the constitutionality of the individual health insurance mandate. But it’s not as strong as it could have been had he been able to address some key issues in greater depth:

Harvard Law Professor Einer Elhauge’s book Obamacare on Trial is a useful and sometimes insightful statement of several arguments in defense of the mandate. It is impressive that Elhauge managed to get the book in print just a couple months after the Court’s decision came down on June 28, 2012. But, perhaps because of the haste with which it was published, the book fails to adequately address some key issues, and likely will not be persuasive to those not already inclined to agree with Elhauge’s conclusions….

Elhauge’s most distinctive contribution to the debate over the mandate was his repeated invocation of two 1790s laws that, he argues, provide precedents for upholding the individual mandate as an exercise of the commerce power: The 1792 Milita Act, which required militia members to possess muskets and other military equipment; and the 1798 Act for the Relief of Disabled and Sick Seamen, which required owners of American ships arriving from foreign ports to a withhold a part of their seamen’s wages and pay the money into a government-administered fund for the “temporary relief of sick and disabled seamen….”

This is an interesting thesis and Elhauge defends it well. But, ultimately, it flounders on the many clear differences between the two 1790s acts

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Comstock, Bond and Predictions About the Individual Mandate Case

In his recent response to Randy Barnett, co-blogger Orin Kerr argues that previous precedent, especially the Supreme Court’s 2010 decision in United States v. Comstock justifiably led many observers to expect that the Court would readily uphold the individual health insurance mandate, and that its failure to do so under the Commerce and Necessary and Proper Clauses was a major change from Comstock and other prior precedents.

I agree that Comstock was a very broad interpretation of federal power in some respects, and I believe it was wrongly decided. Yet, even at the time Comstock was decided, it was easy to find crucial differences between that case and the individual mandate case. In a post written on the day that Comstock came down and in an article about Comstock published in the fall of 2010, I pointed out two such distinctions. First, Comstock endorsed a broad interpretation of the meaning of “necessary” in the Necessary and Proper Clause, but said nothing about the meaning of “proper.” The challenge to the mandate was primarily based on the idea that it was “improper” rather than unnecessary. Second, in upholding the law at issue in Comstock, the Court relied in part on a five-factor test that, when applied to the mandate mostly cut against the federal government. In my article (pg. 266), I also noted the possibility that the inclusion of the five factor test in the opinion may have been the price that Chief Justice John Roberts forced the four liberal justices to pay for casting the decisive fifth vote in favor of the majority opinion (Justices Alito and Kennedy concurred in separate opinions that outlined much narrower visions of the scope of federal power).

These distinctions were, in fact, exactly the ones relied on by Chief Justice Roberts in [...]

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Foreign Commerce Authority for Universal Jurisdiction over Terrorists

The government is prosecuting three foreigners for the participating in “combat operations” in a foreign civil war.

The indictment apparently alleges no connection to America, or even foreign commerce (unlike a similar 2011 case that lacked an apparent connection to the U.S.) The defendants are Somalis who fought in Somalia. In a previous post, I discussed why the prosecution exceeds’s Congress’s Define & Punish powers; here we’ll consider other possible Art. I grounds. Today – the Foreign Commerce Clause; later today, War and Treaties. Tomorrow: additional thoughts about American exceptionalism in universal jurisdiction.

Foreign Commerce Clause
My previous post focussed on the Define & Punish Clause as the basis for the MST law; today, we will examine some other suggestions. I addressed the Define & Punish clause first because it is the first Art. I power Congress cited in its “findings” in support of the section. (sec. 301(a)(2) of the public law). Later, the findings do suggest the Commerce powers as a tertiary rationale: terrorism discourages travel from the U.S. to affected country, and vice versa. It also mentions general harm to “market stability.” This sounds a lot like the arguments rejected by the Supreme Court in U.S. v Morrison . Surely Congress’s can’t regulate any crime anywhere in the world just because it upsets things. The commerce argument is even weaker here: if someone moves out of their state because of violence against women, they presumably move to another U.S. state. But if they move from Somalia, they do not presumably move to the U.S.

The connection to U.S. commerce would have to be shown. In the one prior universal jurisdiction “material support” case, Ahmed , the government claimed in the indictment, without providing specifics, that it could show real links to commerce. The district judge accepted [...]

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Turning Federalism Right-Side Up – My Review of Michael Greve’s The Upside-Down Constitution

My review of Michael Greve’s important new book, The Upside-Down Constitution is about to be published in Constitutional Commentary, and is now available on SSRN. Here is the abstract:

Michael Greve’s The Upside-Down Constitution is one of the most important works on constitutional federalism in years. It is the best exposition to date of the idea that the American Constitution establishes a federal system primarily devoted to promoting competition between state governments. It is also probably the most comprehensive critique of the traditional view that federalism is really about promoting the interests of state governments. As Greve recognizes, state governments rarely want to compete, often preferring to establish cartels among themselves.

Greve praises the original Constitution for creating an effective system of interstate competition and the nineteenth and early twentieth century Supreme Court for enforcing it. But he warns that the system has broken down over the last eighty years, replacing competition with cartels and what he considers to be dysfunctional empowerment of state governments. He argues that American federalism has now reached a crisis point from which we must either restore some of its earlier, more competitive, structure, or face a decline similar to those that have beset several other federal systems

In Part I, I describe Greve’s argument, focusing especially on the ways in which it enhances our understanding of the history of constitutional federalism. Part II addresses a potential internal contradiction in Greve’s position. While he emphasizes the need for the judiciary to enforce a competitive regime and recognizes that the federal government often has incentives to promote cartelization, he endorses a broad interpretation of congressional authority under the Commerce Clause and the Spending Clause which effectively gives Congress a blank check to suppress competition in ways he deplores.

Part III briefly considers a second

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Michael Greve on the Proper Meaning of “Proper” in the Necessary and Proper Clause

At the Law and Liberty Blog, my George Mason colleague Michael Greve has posted an insightful commentary on my forthcoming article analyzing the proper meaning of “proper.” Michael agrees with my conclusion that the individual health insurance mandate was improper, but takes issue with some of my reasoning:

My colleague Ilya Somin has penned a good piece on “The Individual Mandate and the Proper Meaning of ‘Proper’,” arguing that Chief Justice John Roberts’ opinion in NFIB v. Sebelius has “moved our jurisprudence closer to the proper meaning of proper.” Moreover, the Chief was right to conclude that the notorious individual mandate flunks a proper “proper” test. I agree with that assessment and much else in Ilya’s instructive article, though perhaps for somewhat different reasons.

The basic proposition is that “proper” in the Necessary and Proper Clause must have some independent meaning (independent, that is, from “necessary”). A “minimalistic” reading of “proper,” Ilya writes, holds that Congress may not pass laws that imply a limitless understanding of congressional powers, or which would render large parts of the Constitution redundant. (In other words, a constitutional interpretation that can’t handle broccoli must be wrong.) A broader reading, advocated by a scholars’ amicus brief in NFIB v. Sebelius… and suggested twice in Chief Justice Roberts’ opinion, picks up John Marshall’s M’Culloch suggestion that the Necessary and Proper Clause encompasses “incidental” powers but not “great substantive and independent” ones. A power to impose mandates (the argument concludes) flunks that test.

I’m not entirely happy with either formulation. The “minimalistic” reading simply restates the principle of limited and enumerated powers, which would control (and since at least Gibbons v. Ogden has controlled) even without “proper.” And the broader reading rests on a distinction that to my mind was suspect the day it was announced. (Nobody

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

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

Here is the abstract for my contribution:

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

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

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

Part II

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Ninth Circuit Treats Supreme Court Individual Mandate Necessary and Proper Clause Ruling as a Binding Precedent

Co-blogger Jonathan Adler recently posted on United States v. Elk Shoulder, a recent Ninth Circuit decision which may be the first court of appeals case interepreting the Supreme Court’s individual health insurance mandate decision in NFIB v. Sebelius.

When NFIB came down, some commentators argued that Chief Justice Roberts’ conclusion that the mandate was not authorized by the Commerce Clause and Necessary and Proper Clause was mere dictum, and therefore not binding precedent for the lower courts. I criticized that view here. It’s worth noting that the Ninth Circuit just treated the Roberts’ Necessary and Proper reasoning from NFIB as if it were binding. In upholding the Sex Offender Registration and Notification Act sex offfender registration requirement, they relied heavily on NFIB’s interpretation of the Necessary and Proper Clause:

[B]ecause SORNA registration requirements are imposed only on individuals who were convicted of sexual offenses, it regulates only “those who by some preexisting activity bring themselves within the sphere of federal regulation.” NFIB, 132 S.
Ct. at 2592….

Although the Necessary and Proper Clause provides no justification for laws effecting “a substantial expansion of federal
authority,” NFIB, 130 S. Ct. at 2592, SORNA’s registration requirement is “narrow in scope” and “incidental to the exercise” of enumerated powers. Id. at 2592 (opinion of C.J. Roberts)…

The conclusions that the Necessary and Proper Clause does not authorize legislation that doesn’t regulate a “preexisting activity” or that effects “a substantial expansion of federal authority” are central elements of Roberts’ analysis of the Clause in NFIB. And in Elk Shoulder, the Ninth Circuit seems to be treating them as binding precedent. It’s theoretically possible to interpret these passages as merely citations of persuasive authority that happen to accord with the Elk Shoulder panel’s own views of the Necessary and Proper [...]

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Next step: Repeal the individual mandate because it is unconstitutional

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the [...]

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Necessary and Proper Clause returned to the Original Understanding. Podcast with Ilya Somin, and more

Yesterday I interviewed Ilya Somin about the NFIB decision, particularly the portion involving the Necessary and Proper Clause. Here’s the link for the 28 minute episode on As Ilya details, the decision strongly restates and applies a principle from McCulloch v. Maryland: that whether a law is “proper” is an entirely different question from whether it is “necessary.” And CJ Roberts’ opinion is the first in Supreme Court history to find that a law which is “necessary” is not proper. Ilya’s amicus brief was the key brief on the necessity of making separate inquiries into “necessary” and “proper.”

That’s not the only way in which the Roberts opinion brings interpretation of the Necessary and Proper Clause back to the proper, originalist understanding which was explicated in McCulloch. The Roberts opinion explains that the NP Clause grants Congress no additional powers; the clause merely expresses the default legal rule that when an enumerated power is granted, the grant also includes lesser powers which are “incidental” to the enumerated power. In McCulloch, Chief Justice Marshall found it necessary to spend many pages applying the doctrine of incidental powers before he could reach the other issues about the constitutionality of the Second Bank of the United States.

The Roberts opinion is one of many, many post-McCulloch opinions to utilize the doctrine of incidental powers, but it is the first opinion to hold that a particular law is not valid because it is not an incident of an enumerated power. The originalist, Marshallian understanding of the doctrine of incidental powers was the subject of the amicus brief which Rob Natelson, Gary Lawson, and I wrote. The brief is based on the book The Origins of the Necessary and Proper Clause, published by Cambridge University in 2010, and co-authored [...]

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