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Tuesday, December 14, 2010

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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  1. Exactly. We are still a federal republic as disappointing as that is to those wishing to ape the failing Euro socialist scheme.

  2. When I was in law school, I wrote a legal thesis based on re-visiting the interpretation of the necessary and proper clause, and particularly what meaning is added by the use of "and proper" in light of various historical documents, including its incorporation into the first draft of the 14th amendment.

    My argument was that "proper," as in "appropriate" was a limiting term to the expansive term "necessary," and their use in conjunction with each other reflected a balancing of interests. Specifically, "proper" should mean "within the powers of the government (either enumerated or not-prohibited)," because the use of an ultra-vires means to effectuate a potentially "necssary" struck me as, by definition, "innappropriate" for the government to do.

    The greater the necessity of a law to effectuate an enumerated end, the more attenuated from the Constitution could you stray in terms of the means to reach that enumerated end. Conversely, the more your means could find no grounding in the Constitution - either due to distance from an enumerated power or from running afoul of broad readings of the vague language in the prohibitions contained in the Bill of Rights, the higher level of actual necessity you would have to prove. This usage actually conforms very nicely to what judicially made-up, textually baseles rules (e.g. intermediate scrutiny) result in.

  3. Early this year, House Judiciary Committee Chairman John Conyers, D-Mich., claimed the Constitution's "good and welfare" clause (his words) justified the act. But of course, there is no such clause.

    Rep. John Dingell also said that the Constitution gives Congress unlimited authority "to control the people," again in his words.

    If Judge Hudson is overturned, we will be subjects, not citizens.

  4. so Kerr is argueing that the Mandate is N&P because it is simply the means to regulate intrastate commerce in the health insurance industry ? but of course the Mandate is the regulation that is being tested and is thus no longer just the means of regulating but a regulation itself ...

    I would have assumed that the N&P test would only be applied AFTER the law had passed the Powers test ...

    I'll bet Kerr will be posting an update to try and wipe the egg off his face soon ...

  5. The line of reasoning this follows is completely absurd with the healthcare mandate. By the method of reasoning used, the congress could have used legislation to turn GM literally into Government Motors. What better way to recoup the funds than to have mandated that cash-for-clunkers was only available to those who purchased a GM product?

    I personally preferred your guns and tobacco mandate. Since originally all able bodied men over the age of 16, we can now change that to persons over 18 to be P/C, make up the militia. Then why not require the purchase of one handgun, rifle or shotgun per year along with the ammunition to maintain competency with it for those who are legally eligible to own them. That is not convicted of a felony, or having been adjudicated mentally deficient.

    We can do the same with all the products imported from China, and require their manufacture here. Congress has all the answers all we have to do is let them dictate every aspect of our financial lives and everything will be better. All hail the great Obama...LOL

  6. Be careful about the examples you use to make your point.

    ObamaCare proponents are likely to point to an asymmetry in your health insurance/shampoo example. Before arguing such a comparison, more detail is needed about the "necessity" of imposing a hypothetical product or service mandate on consumers in order to effectuate the regulation of the market.

    ObamaCare proponents would say that a "shampoo mandate" on consumers is NOT "necessary" to effectuate a regulation on shampoo providers, because there are no countervailing free-rider or adverse selection issues affecting regulation of the shampoo market. A mandate on consumers isn't "necessary" to regulate the sellers of shampoo.

    Conversly, proponents would argue that the health insurance purchase mandate on consumers IS "necessary" to impose the "no pre-existing condition" mandate on health insurance providers, because of the free-rider and adverse selection issues specific to health insurance market.

    The argument really isn't a "no brainer," and picking the first product that comes to mind won't be the best argument to make by analogy. It really requires careful selection of arguments.

    As Instapundit (via Powerline) says to ObamaCare opponents: "Don't get cocky."

  7. House conservatives need to be following up on your suggestion of a "guns & tobacco" mandate. Let's keep it simple and to the point though. Forget the tobacco, it being 14 months since my last cigarette, and libtards wouldn't be bothered by the tobacco mandate as having to buy a scary gun. Instead just be ready as soon as the new house is seated to bring forth an individual mandate for every person 18 years of age or older to buy one handgun, rifle, or shotgun, or face a penalty of $50,000. If it takes until January for the supreme court to decide whether congress has the power to impose individual mandates, SCOTUS needs to be staring down the barrel of that, in the form or real, pending legislation.

  8. Prof. Jacobson, glad you are pushbacking back against the pushback to the pushback against the Obamacare mandate! Maybe your "absurd results" test will save our Constitution from the current existential contortion that threatens to decouple it from all meaning.

    "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" reads to this citizen as nothing more than an exhortation for the Congress to enact what's needed (no more no less) to discharge its Constitutional duties inherent in, and within the bounds of, its enumerated powers.

  9. A shampoo mandate is not "necessary" today but who can say it will not be so at some future time? The health insurance mandate was not deemed "necessary" for most of the recent past until now, when it is. So what construes "necessary"? What the people in power decide to be so? There would seem to be no countervailing definition. "Necessary" is whatever the government decides to be such and thus there is NO limit on government power. If they decide it's "necessary" for us to all buy GM cars because the UAW workers need to keep their pensions, isn't that the same as saying healthy 20-somethings need to buy health insurance to lower premiums for geezers? And can anyone really guarantee that future president Michelle Obama won't find it necessary to require a shampoo mandate?

  10. Liberals are forever presenting credentialed intellectuals with complicated theories and interpretations to come up with explanations that defy common sense and logic. That's why communism is impossible to make work.

    Here in the US, we've found a way to make things work with a 2-page constitution that people used to understand when it was universally assumed that the constitution meant exactly what the words say.

    There is nothing in the US constitution that became obsolete as our society evolved. Our founding fathers did not design the constitution as a temporary starting point that would eventually become obsolete once it succeeded in creating a free and thriving society.

    Individual liberty means individual liberty regardless of the technological advances and change of tastes. No intellectual is so smart that their tricky and contrived theories should trump common sense.

  11. If Congress has the Power to regulate something, and the laws it passes effectively Execute that Power, then under what circumstances would the law not be Necessary and Proper?

    A law would only be unnecessary if it simply failed to accomplish what Congress intended, or if it was otherwise redundant to other equally effective regulation.

    A law would only be improper if it otherwise ran afoul of some other form of Constitutional protection.

    Shampoo is quite obviously a product in interstate commerce. Therefore it is within Congress' authority to regulate. Failure to purchase shampoo certainly affects this commerce. Shampoo use/non-use is also not specifically protected by the Consitution.

    Therefore, under Obamacare standard sought be this administration Congress would be well within their authority to deem the purchase of shampoo as necessary and proper to effect control of the market for this product.

    Really, once any form of economic inactivity falls under the purview of Congress via the interstate commerce clause then all forms of economic inactivity are equally encumbered.

    Given that an economic nexus can likely be found for most anything it would seem that all forms of activity and inactivity not otherwise specifically protected within the Constitution might also be in jeopardy.

  12. The 'Individual Mandate' is about as constitutional and reasonable as the Stamp Act of 1765.

    As for the 'Interstate Commerce' misinterpretation... Hellooo? Obamacare doesn't let you buy health insurance across state lines!

  13. If the mandate for Health Care Insurance is constitutional, then what other forms of insurance might the government require us to buy? Long and short term disability insurance? Long term care insurance, Life insurance? Insurance products not yet imagined, for things like retirement? This could be used as a great way for redistributing wealth, just like Obamacare, since the "poor" ride for free.

  14. Maybe mandate apologists are dyslectically seeing, “To make all Slaw which shall be necessary and proper."

  15. Professor Jacobson

    I have to respectfully disagree with you, but fortunately we are talking about a concurring oppinion, and not a dissent. there is a more basic problem with claiming that this is allowed under the necessary and proper clause.

    i just posted a long post on it: http://patterico.com/2010/12/14/is-the-mandate-necessary-and-proper-to-carry-obamacare-into-execution/

    Title: "Is the Mandate Necessary and Proper To Carry Obamacare into Execution."

    the key part is that forgotten phrase in the N&P clause, "carrying into execution." in short you can't just pass any law that is generally made necessary by a law. it has to be necessary for the implementation of the law. the mandate is not necessary or proper for that purpose.

  16. 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.

  17. 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.

  18. 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.

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

  20. 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.

  21. Prof
    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?

  22. 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.

  23. 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.

  24. @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.