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    Neither Necessary Nor Proper

    Neither Necessary Nor Proper

    Prof. Orin Kerr, writing at Volokh Conspiracy, believes there is a glaring error in the decision by Judge Henry Hudson of the U.S. District Court in Virginia holding the health care mandate unconstitutional (italics in original, bold text mine):

    I’ve had a chance to read Judge Hudson’s opinion, and it seems to me it has a fairly obvious and quite significant error. Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause — “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” — does not expand Congress’s power beyond the Commerce Clause itself….

    The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I.  If you say, as a matter of “logic” or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that’s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.

    This argument has proponents of the mandate heartened, but Randy Barnett puts it into perspective that even the government did make the argument with any force.  Also, Jason Mazzone makes the point that Judge Hudson appeared to be directing his argument to a line of thought previously expounded by Justice Scalia making a distinction between activity and inactivity. 

    While these all are thoughtful analyses, I don’t think they get us any closer to how this unique case will end up.

    I’ll focus somewhat narrowly on Kerr’s use of standard statutory and constitutional construction that one does not read competing provisions of a document so as to render one of the provisions meaningless.  That appears to be to what Kerr was referring in the sentence in bold above.

    I’ll invoke a different rule of construction, namely that one does not read provisions of a document so as to lead to absurd results.  And that is what happens when one reads the Necessary and Proper Clause under the context of the mandate as expanding the scope of congressional power without limit.

    The result of viewing the Necessary and Proper Clause as unlimited results in the absurd result that there is no limit not only as to what government can regulate, but what government can compel one to do.

    The government can regulate shampoo, because shampoo transits in interstate commerce in a variety of ways.  But can the government therefore compel people to buy shampoo? Or dictate which shampoo?  Or penalize people who neither purchase nor use shampoo?

    Pick your product or service, and you will reach similarly absurd results under the expansive view of the Necessary and Proper Clause. 

    If, as posited, the Necessary and Proper Clause permits the federal government not only to regulate actions which themselves do not affect interstate commerce, but to compel people to take action, then we not only have reached absurd results, we also have read the entire constitutional structure of our limited federal government out of existence.

    Update:  Jonathan Adler makes a similar point that the line needs to be drawn at regulating activity versus mandating activity:

    One solution to the line-drawing problem is to argue that, at least for Commerce Clause purposes, there is a fundamental difference between regulating economic conduct – conduct that places an individual within or sufficiently proximate to the streams of commerce – and mandating conduct. This line is appealing because neither a prohibition nor conditional regulation curtails liberty as much as does an affirmative mandate. On this basis, one could argue, that a direct mandate is not “proper,” even if it might be useful or efficient. Drawing the line here is also appealing because there is no precedent for using the Necessary and Proper Clause in this fashion, at least not in the Commerce Clause context. Thus, a court can invalidate the individual mandate on this ground without challenging any of the relevant precedents and without undermining any other portions of the U.S. Code. Finally, if one accepts that a line must be drawn – and I recognize that some do not – this line is appealing because it is an administrable line, and its critics have yet to identify any viable alternative.

    Related Posts:
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    Just an engineer so forgive the question if it is too obvious. What would prevent obama/congress from adding a flat tax of $1000 to every person, but is fully deductable via the IRS assuming you have appropriate health insurance. Wouldn't that negate the activity / inactivity argument?

    To rebut several of the comments above:

    If the commerce clause were taken in a vacuum, the congress could certainly create all legislation it deemed necessary and proper, without regard to the rights of citizens.

    However, the N&P; goes on to specify its purpose, relative to the rest of the constitution:

    "…To make all laws which shall be necessary and proper for carrying into execution the foregoing powers…"

    In the context of the rest of the constitution, specifically the 9th and 10th amendments, it means that congress can only create laws that are necessary and proper for protecting the rights and freedoms of the people.

    Commerce can never be a right.

    You say: "The result of viewing the Necessary and Proper Clause as unlimited results in the absurd result that there is no limit not only as to what government can regulate, but what government can compel one to do."

    The "absurd result" that results from the result–to coin a phrase– is that when it comes to health care, your refusal to buy the "shampoo" means that I buy it for you when you need it, or let you die.

    Congress has properly found both of those alternatives unacceptable and therefore necessarily and properly has created legislation to address that absurdity.

    Your refusal to buy health insurance is not passive but active: it's a behavioral decision that impacts commerce as dramatically as buying health insurance. Every actuary in the country must take into account what you do.

    Bottom line: Your shampoo analogy demonstrates the great error of American conservatism when it comes to the question of health care–an error that conservatives outside of this country (like Churchill) have not made. By constructing human health as a market product, like shampoo, you pretend that there is no qualitative difference between oily hair and a sick child. Both are merely market problems. But no ethical philosophy worthy of the name will accept that equivalency. In the face of human suffering, the amorality of the market encounters its limits.

    At least it should. But ideologies love to trivialize human life–so, sure, let's compare health care to shampoo and mock Congress for thinking otherwise.

    @Eric your argument seems to be extraordinarily weak.

    I am an outsider so any analysis is based upon what I have been reading.

    Taking the shampoo issue, but without having read the initial arguments, I would state that: shampoo is a product that is manufactured in one state and shipped to many states. As such shampoo falls into the category of interstate commerce which means it can be regulated by the Congress.

    Now, it is well known that there is an ingredient in shampoo that is based upon oil production. Since the Congress can regulate the ingredients of shampoo based upon the Commerce clause, then Congress can pass a law that would make it illegal for that ingredient to be in shampoo. (NOTE: there are alternatives to this ingredient available on the open market).

    However, the health issue is not in the same category. Health is divided into a few categories:

    1. the provision of health services e.g. doctors, nurses, physiotherapy, hospitals etc.

    2. health insurance.

    3. health products e.g. pharmaceuticals, prosthesis appliances.

    Looking at the second category, there is no interstate commerce because any transaction is within the state borders. It is in this category where an individual has the right to choose or not choose to be insured. Under the Commerce clause the Congress does not have the right to mandate the taking up of health insurance.

    Looking at the third category i.e. pharaceuticals and the like, there is interstate commerce involved. Therefore the Congress has the right to create legislation that regulates that market.

    People make choices, yes even the poor make choices. There are already regulations in place that means there is some obligation for the medical treatment of the poor.

    People die all the time. It is something that none of us can avoid. We all have to die. Those costly treatments meant to prolong life have consequences. Cancer drugs cause hair to fall out. Radiation therapy is not fun, and if a patient is too far gone with the cancer the logical step is to cease the treatment – yes it happens like that in Australia where we have govt control over some aspects of our health insurance. This is what happened to my sister after she was FINALLY diagnosed as having cancer and left with 5-6 weeks to live. They gave her one radiation treatment and then told her to get her affairs in order.

    The kind of regulation desired by the Obamabots means that more people will be denied treatment because of other factors: age, weight, cancer, etc. etc.

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