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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:
    The Guns & Tobacco Mandate
    We Need “Blue Light” Mandates
    Taxing Your Mere Existence

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    sort of runic rhyme | December 14, 2010 at 4:52 pm

    A historian using a microscope must have discovered a hidden code embedded in the "i"s of the US Constitution that gives Pelosi-Reid and not Hastert-Frist, Congresses unlimited powers.

    All of this legalese is interesting, but it boils down to the fact that the government is the cart, not the horse; the load, not the driver; the feedback loop, not the prime mover.
    In my personal Inferno, lawyers will be compelled to engineer products.

    I don't, for a New York nanosecond, underestimate the ability of RPO (Reid, Pelosi, Obama) and their lobbyist minions to come up with an absolutely vile pot of legislative gruel in their quest for glory. I can't help but wonder, however, if this ship was not built to sink. And that the weak plate in the hull is the individual mandate.

    If HillaryCare was the original attempt at this kind of mandate and if HillCare was shot down, in part, because of this outrageous scam, it could be that the mandate was included in Obamacare on purpose.

    The socialists want a single payer (government run) health system. Period. They may have decided to get it by design or by default. Either Obamacare sets up a single payer system with an associated tax up front. Or Obamacare allows the current private insurance system to continue bolstered by the individual mandate to fund the extra costs of the new government demands for expanded coverage. The latter alternative will result in the eventual collapse of the private insurance system and a government takeover of health care. Either way, the socialists get their single payer system.

    Killing the individual mandate now hastens the demise of the private system, just with less sturm und drang. And the socialists get their way.

    Next thing you know congress will require us to buy a ticket to a Lady Gaga concert.

    Whatever the legal issues involved, I'll point out that Kerr banned me from the VC simply for commenting about the VC's commenting policies on a thread about (you guessed it) their commenting policies. Because he's willing to ban people and delete on-topic, non-abusive comments that make him look bad, that means you have to double-check every single thing he writes at the VC. You never know if he's deleted a comment that points out how he's wrong.

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