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.--------------------------------------------
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