Return of the Necessary and Proper Clause (Just in Time for Health Care)

The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.  U.S. Const. Art. I, § 8.

The big news last week concerning the fate of the federal health care legislation was not the entrance of new plaintiffs into the litigation challenging the statute or the government’s filing its opposition brief in the suit brought by Virginia.  The big news was United States v. Comstock and the continuing resurgence of the Necessary and Proper Clause of the Constitution (quoted above).

The constitutional challenges focus on the so-called individual mandate, taking effect in 2014, which will require that most people either own health insurance or pay a penalty.  Legally, the arguments against the legislation lack merit.  As I have argued elsewhere, under contemporary Commerce Clause doctrine, Congress can impose the individual mandate as part of its comprehensive regulation of the interstate market in health insurance.  Further, the provision is structured as a tax on those who fail to purchase insurance, thus falling within Congress’s even broader taxing authority.

Rhetorically, however, the opponents’ arguments may have some appeal.  How, the critics insist, can Congress’s constitutional authority to regulate interstate commerce extend to regulating the non-commercial activity of doing nothing (i.e., not buying insurance)?  Doing nothing is not commerce, the law’s opponents proclaim.  Can you make a federal case out of taking a nap?

The answer to this rhetoric comes from the Court’s great rhetorician, Justice Antonin Scalia.

The same argument was deployed in Gonzales v. Raich in 2005, the case challenging the federal regulation of medical marijuana.  The question there was whether Congress could criminalize growing marijuana for home use.  By a 6-3 vote, the Court answered yes.  In a separate opinion, concurring in the judgment, Justice Scalia reaffirmed a long line of Supreme Court authority upholding the regulation of activity without regard to whether it was commercial.  In defense of these cases, Scalia, the self-professed textualist, asserted that the real source of authority was the Necessary and Proper Clause of the Constitution, rather than the Commerce Clause alone.  This analysis led Scalia to the powerful conclusion that “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”

In Justice Scalia’s conception, the ugly duckling of the Commerce Clause turns out to be the beautiful swan of the Necessary and Proper Clause.  Of course, it is the same bird, but the public relations makeover may be significant.

In Raich, Justice Scalia was writing for himself.  In United States v. Comstock, seven other Justices endorsed broad conceptions of the Necessary and Proper Clause.  Comstock addressed whether the federal government had the constitutional authority to detain mentally ill, sexually dangerous federal prisoners, even after their sentences ended.  In a 7-2 vote, with only Justices Scalia and Thomas dissenting, the Court upheld the program.  (The Court ducked any due process challenges to the scheme and focused solely on the foundation for the affirmative exercise of federal power.)

What was the source of federal authority in Comstock?  You got it, the Necessary and Proper Clause.  The five Justices who signed on to the majority opinion by Justice Breyer (Justices Stevens, Ginsburg, Sotomayor, and Roberts) took a very broad view of Congress’s power under this Clause.  Justices Kennedy and Alito each wrote separate opinions, concurring in the judgment, to offer only slightly narrower readings of the Clause.  While Justice Scalia dissented, he did not express any reservations about his position in Raich.

Comstock hardly resolves the health care issues, but it continues to chart a course toward a rhetorically appealing way to explain this exercise of federal authority.  As proponents and critics of health care reform both assert, the individual mandate is necessary for the legislation to succeed in guaranteeing insurance for everyone throughout the nation.  That is why opponents attack the mandate, but that it also why it is constitutional.

By the way, can the federal government regulate taking a nap?  How about if the one who slumbers is a pilot flying an airplane?  Sometimes doing nothing has just as big an impact as doing something.

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22 Responses

  1. Of course, Scalia is hardly much of an originalist or textualist. The answer is that, when the forgoing power is the power to regulate interstate commerce, a law regulating non-commerce which isn’t interstate fails to be ‘proper’ because it is an exercise of a power not delegated. The alternative interpretation, however convenient it might be to Congress, renders the restriction to ‘Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.’ without meaning, as well as effectively repealing the 10th amendment.

    Not incidentally; Doing that is the POINT of that interpretation…

  2. PLE says:

    The necessary and proper clause is still the second step of a two part test. It doesn’t replace the need for the law the fall into one of the categories.

    Also, regarding your final sentence: Brilliant analysis. I think a hear a symphony playing in the distance. Honorary distinctions and cash prizes are almost certainly en route to your front steps.

  3. Ken says:

    This whole brouhaha is the result of amazing ineptitude on the part of the Congress that fired a blunderbuss at a bullseye: “…will require that most people either own health insurance or pay a *penalty*.”

    Penalty? That’s just plain dumb. In my state (Virginia), and I suspect in many others, I do NOT have to have automobile insurance to drive. If I do not have insurance, I do NOT pay a penalty. Rather, I pay a FEE into the state’s reserve, titled the Uninsured Motorist Fund. This is the fund that enables the state to make at least moderate restitution to innocent victims who are injured by uninsured motorists.

    All those dimbulbs had to do was set up an Uninsured Patients’ Fund and charge a FEE (call it “uninsured patients’ tax”) to folks who opted not to carry insurance.

    Sorry for my lack of moderation in my language. I am continually disappointed that a three-digit IQ does not seem to be a minimum qualification for election to Congress.

  4. Sean M says:

    As you know, Mr. Schapiro, this case only implicates the Necessary and Proper Clause if Congress has the constitutional power to pass the individual mandate in the first place. If Congress does not have the constitutional power to pass the mandate, then the Necessary and Proper Clause never comes into play.

    The proper focus of the lawsuit, then, is rightly on Congress’s fundamental power to pass the individual mandate.

  5. CPT says:

    As you know, Mr. Schapiro, this case only implicates the Necessary and Proper Clause if Congress has the constitutional power to pass the individual mandate in the first place. If Congress does not have the constitutional power to pass the mandate, then the Necessary and Proper Clause never comes into play.

    The proper focus of the lawsuit, then, is rightly on Congress’s fundamental power to pass the individual mandate.

  6. Anon says:

    I think Sean M/CPT’s confusion is best addressed by the following passage from Justice Scalia’s opinion in Raich:

    “As we implicitly acknowledged in Lopez, however, Congress’s authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” 514 U.S., at 561.”

    Clearly, so-called “Obamacare,” absent the individual mandate, regulates interstate commerce. The authority to regulate the “non-economic” decision not to buy insurance derives from its relation to the general regulatory scheme.

  7. Sean M says:


    I really don’t know any other way to say this: you’re wrong.

    First of all, I’m not saying that the N&P Clause cannot be used with the Commerce Clause. Indeed, Congress must act under an enumerated power (e.g., the Commerce Clause) in order for Congress to have ANY power under the N&P Clause. The N&P is not a stand-alone provision. It is instead a complimentary provision that serves as a means to an end. Congress can’t use the N&P Clause if there’s no foregoing constitutional power on which to base it. Your quote from Raich actually proves my point. (“Congress’s authority to enact laws necessary and proper FOR THE REGULATION OF INTERSTATE COMMERCE…”).

    Second of all, your “the individual mandate is absolutely constitutional” position is shallow and conclusory. Let’s be clear: I’m not saying that the mandate is necessarily unconstitutional (although I think that one could make a very strong argument against it). What I’m saying is that it isn’t an open and shut case. And it’s definitely not a case on which we can avoid substantive analysis by simply saying “welp, the N&P Clause gives Congress the power to do anything it wants, so the mandate is constitutional.”

    The Court has NEVER — in Raich or any other case — used the Commerce Clause to compel economic activity in cases where people aren’t actually engaging in activity to begin with. The Court has said that Congress can limit activity under the Commerce Clause. The Court has said that Congress can use the Commerce Clause to regulate activity that is not purely economic. But, I repeat, the Court has NEVER said that Congress can compel people to act. In my view, it is just as problematic for Congress to use its Commerce Clause authority to force people to buy new TVs at Best Buy (in order to stimulate the economy) as it is for Congress to use its Commerce Clause authority to force people to buy health care plans (in order to make plans more affordable for others).

    Now, if you want to talk about the individual mandate’s Tax and Spend Clause issues, I’d be happy to engage. But your Commerce Clause analysis is *shallow* at best.

  8. Ken says:

    >>In my view, it is just as problematic for Congress to use its Commerce Clause authority to force people to buy new TVs at Best Buy (in order to stimulate the economy) as it is for Congress to use its Commerce Clause authority to force people to buy health care plans (in order to make plans more affordable for others).>>

    …and round and round we continue to go. Why is this so difficult to comprehend? Congress is NOT forcing people to buy health insurance.

    They are merely requiring that people who do not buy health insurance pay a “supplemental uninsured tax” into a reserve for uninsured patients, so that when some percentage of those uninsured (by choice, now, not merely because the insurance companies turned them down) need health care services, and can’t afford them, then there will be a public fund to “insure” them in spite of themselves.

    If you would like to argue the point that Congress does not have the constitutional power to tax different folks at different rates, go for it. Meanwhile, if those dimbulbs in Congress had not thought to misuse the word “penalty,” this would never have become a cause celebre.

  9. Darren Hutchinson says:

    I had a similar thought after reading Comstock. Any case approaching federal power from a liberal perspective will help with the healthcare legislation.

  10. Sean M says:


    We’re splitting hairs here.

    Situation 1: Congress forces someone to buy health insurance, and thus spend X dollars.
    Situation 2: Congress says that if someone doesn’t purchase health insurance, then they have to pay X dollars in new taxes.

    Technically, I suppose, Congress isn’t “forcing anyone to buy something.” But, in actuality, that’s exactly what Congress is doing. It’s saying that everyone has to be insured, and that if people don’t buy insurance of their own free will, then they must pay a punitive fee for failing to do so. If Congress were to say “in order to stimulate the economy, everyone must buy a TV at Best Buy, and if anyone doesn’t, then they have to pay $1,000 in new taxes,” then we’d be dealing with exactly the same situation.

    That’s the extent of the Commerce Clause issue. As you point out, we next jump to the Tax and Spend Clause — under which a court is very likely to uphold the mandate. I actually agree with you that Congress should have simply construed the mandate as a tax. As you point out, T&S Clause measures are virtually bullet-proof from constitutional challenges.

    I did want to reiterate, though, that we weren’t discussing the T&S Clause in the original post. Anon’s original point, which he didn’t back up with any substantive analysis, was that the N&P Clause simply justifies the mandate. The issue is much more complex than that. I reiterate: the Court has NEVER permitted Congress to force anyone to purchase anything, or impose punitive fees for non-activity, under the Commerce Clause.

  11. Ken says:

    Sean — I would agree with your characterization IFF I agreed with the word “punitive.” However, that was my whole point in my earlier post, where I likened the current brouhaha to the situation with the Uninsured Motorist Fund, which is definitely NOT punitive.

    If one is a member of the subset of individuals who do not want to buy insurance, but who nevertheless behave in a way (driving a vehicle, or simply living) that exposes themselves to the risk that they might on occasion need somebody else to provide the benefit of “pseudo-insurance,” then those individuals must pay into a reserve fund for the protection of the rest of us from having to cover the percentage of those individuals who get unlucky.

    Go back and read my earlier post and see if you might modify your view of “punitive.”

  12. Sean M says:

    Ken, I agree with you. But, again, the difference b/w the motorist example you gave and the mandate is that, under the mandate, the people who are forced to pay aren’t actually doing anything.

    If you act, the Court has held that your actions can be regulated under the Commerce Clause. Here, however, we aren’t dealing with a situation where there is any *action*. Because the Court has not considered Congress’s power to force people to do something under the Commerce Clause when those people weren’t previously engaging in any activity, we are dealing with an issue of first impression.

    Regardless of whether we agree on the scope of the Commerce Clause, however, Schapiro’s initial post dealt purely with whether the N&P Clause gives Congress some magical power to act in ways that Congress’s other constitutional powers didn’t permit Congress to act. The very fact that we’re debating the issue of whether the Commerce Clause, rather than the N&P Clause, permits Congress to pass the individual mandate shows that Schapiro and Anon are wrong.

    Congress can’t do something under the N&P Clause that the Constitution would ordinarily forbid. And I’m sure we can at least agree on that — even if we may disagree on whether the Constitution actually forbids the individual mandate.

  13. Ken says:

    Sean — Yes, I see your point about the questionable wellspring of authority. I suppose this is the reason I am so perturbed by the careless introduction of the language of “penalty.” I can see no authority for Congress to impose a penalty for inaction.

    On the other hand, in our society a man who has a heart attack is lucky if his wife calls 911 and the medics get him to the E.R. in time for the doctors to save his life. So then, if the man has no insurance, who pays? Why, WE do!

    So my intuition tells me that the government must be empowered to collect reserves against future payments through a tax differential based on who will be the beneficiaries of those future payments.

  14. Logan Roise says:

    Sean M,

    Actually, the Court ruled today that you have to speak to invoke your right to remain silent. So the Government can compel you to engage in activity.

  15. Sean M says:


    I fail to see how your point is at all relevant to our debate.

    First of all, you’re argument is so completely off-base that I really don’t know where to start. Just because you have to assert a particular right doesn’t mean that Congress can compel you to do whatever Congress wants. I mean, that doesn’t even make any sense.

    Second of all, I’m not sure if you understand the concept of having to assert a right means.

    The Court has construed the Fifth Amendment privilege against self-incrimination as a “right” that someone can assert if they choose to do so. In other words, someone can either choose to exercise it or choose not to exercise it. If they choose to exercise it, then they’re protected by it. And if they choose not to exercise it (which is also their right), then they aren’t protected.

    The same is true with other constitutional protections. Under the First Amendment’s Free Speech Clause, for example, someone can choose to speak, or they can choose not to speak. Under the Sixth Amendment, someone can choose to get an attorney, or they can choose not to get an attorney. And under the Fourth Amendment, someone choose to protect themselves against unreasonable searches and seizures, or waive their right and allow cops to search their possessions. Individual rights, therefore, present the people who possess them with (1) certain protections and (2) a *choice* of whether or not to invoke those protections.

    With the individual mandate, on the other hand, that’s not the case. Someone could not wish to purchase any sort of health insurance at all, but still be forced to either purchase a private insurance plan, or pay a tax to the govt to cover the costs of the insurance that they didn’t purchase. In no instance, can someone choose to mind their own business and not purchase the insurance at all. And that’s the point.

    In comparing Congress’s actions in passing the individual mandate to individual rights, you’ve made a poor analogy. It’s also an analogy that’s completely irrelevant in this case, where the proper scope of the Commerce Clause, rather than anyone’s assertion of their individual rights, is the issue at stake.

  16. Logan Roise says:

    I most be lost because you seem to be arguing about individual rights (i.e. you have an individual right to not be compelled into economic activity). So the government can compel me to exercise an inalienable right but it can’t compel me to purchase insurance? After all, both are choices at the invdividual level; you can either exercise your right or not and, similarly, you can either purchase insurance or not. Is not being forced to purchase health insurance another one of those rights contained in the penumbras?

  17. Sean M says:

    I’m not sure I can help you.

    The govt cannot compel someone not to incriminate himself. By way of example, let’s say that a witness takes the stand in a conspiracy case and wants to admit to his own guilt (perhaps because he received some favorable plea bargain in exchange for his testimony). What you’re saying is that, at the very moment that the witness is about to confess, some govt official bolts in the courtroom, screams “STOP!,” and then forces the witness, against his own free will, not to say anything incriminating. I’m sorry, chief, but that’s just not how things work. The govt can’t force you not to incriminate yourself. I think you misread the case.

    More generally, I’m not really sure why you’re focusing on penumbras or individual rights at all. The issue in this case is a structural one: what is the scope of Congress’s power under the Commerce Clause? In essence, the issue is whether Congress can use its Commerce power to force someone who is not engaging in activity to begin with, and who does not want to engage in activity, to do something.

    My discussion with Ken centers on that point, and I think Ken makes some valid claims. On a practical level, I don’t necessarily agree with him — as I think that the effect of *mandated* insurance will be a stronger insurance company *monopoly*, which will result in worse service, clogged doctors’ offices, and higher prices. But we’re still arguing within the same parameters. Right now, Logan, you’re not really even in the same ballpark, much less on the same field.

  18. Logan Roise says:

    I suppose it’s a good thing my expertise is in religious terrorism and not law but anywho, I’m not sure how I am so far off base. You stated, “In essence, the issue is whether Congress can use its Commerce power to force someone who is not engaging in activity to begin with, and who does not want to engage in activity, to do something.”

    Basically, it’s a debate between individual negative rights and powers granted to Congress. So as I understand it, you’re saying the issue is whether Congress has any constitutional power, via the Commerce Clause, to compel an individual to engage in economic activity. That asserts we have some sort of negative right but I don’t see any constitutionally protected right to not be forced into economic activity. I’ll grant you that the US was founded on an idea of liberty and freedom (though much less so then most of us like to think) and that government should general stay out of our lives whenever possible but there is nothing that explicitly says the government cannot do this. Thus, it’s a debate between individual negative rights and congressional power.

    In the end, we need to realize that the constitution was designed as a broad governing document and wasn’t meant to address any and every piece of legislation that Congress (and State governments) passes. Does Congress have the power to force you into economic activity? I don’t see anything in the constitution that grants it that power but I also don’t see any constitutionally protected individual freedom from not being forced into economic activity. If you/we/whoever doesn’t like said pieces of legislation the constitution grants us the power to elect new members of Congress, publicly assemble to demonstrate, and the freedom to engage in a lively debate on the merits to change the legislation.

  19. Sean M says:

    Logan, I appreciate your pontification in the field of con law, but you’re missing the point. Of course, any time you have a congressional power, you have a limit on that power. And any time you have a limit on a congressional power, the limit affords a corresponding degree of protection from the arm of govt that the limit constrains.

    But forget all that. What you need to think about, and all you need to think about, is this: what is the scope of Congress’s power under the Commerce Clause?

    Certainly, the Constitution is a very broad document. And, as you point out, it does not explicitly cover every conceivable situation that arises in the course of our daily lives. Indeed, that’s one reason why I really don’t understand your “the Constitution doesn’t say Congress *cannot* compel economic activity, so that must mean that Congress *can* compel activity” position. Just because the Constitution doesn’t say “Congress may not force citizens to purchase health insurance” certainly doesn’t mean that Congress has the power to do it.

    Yes, the Federalist Papers are riddled with quotes about how the citizenry can vote out members of Congress who do things with which the citizenry disagrees. And yes, that’s the point of referendum, recall, elections, etc. But that doesn’t mean that Congress can simply do anything that it wants — or, for that matter, anything that’s not *explicitly* referenced in the Constitution. If that was the case, then we wouldn’t need a Constitution in the first place. And we definitely wouldn’t need a “Necessary and Proper Clause,” which only enables Congress to carry into effect its enumerated (or “foregoing”) powers.

    The Constitution gives Congress the power to regulate interstate commerce (the “Commerce Clause”), and any court that decides the individual mandate’s fate must determine exactly that power includes. The Supreme Court has previously held that the commerce power includes the ability to regulate the people and things in interstate commerce, as well as *activities* that substantially affect interstate commerce. But the Court has never held that Congress can regulate non-activity by compelling people to act, which makes the individual mandate an issue of first impression.

    I literally have no idea why you are talking about penumbras, self-incrimination, the Bill of Rights, or anything else you’ve mentioned in your previous posts. Again, the issue is about the scope of Congress’s power under the Commerce Clause (and, even though we haven’t discussed it much in this debate, the Tax and Spend Clause).

    I’d recommend picking up a treatise in con law. I believe the one by Chemerinsky tends to be most popular among students.

  20. Jacqueline Fox says:

    I am curious what the con law scholars think of this when the argument is focused on the actual system this mandate is working with. There are a complex bundle of federal entitlements and legal benefits that people without health insurance (or those with underinsurance) get access to. This would include Medicaid, EMTALA, Medicare, etc. It has been understandable that young adults would not regularly insure themselves in the past due to extensive barriers (cost, pre-existing conditions, etc.) as well as a lack of financial incentive to do so (aforementioned Medicaid, EMTALA, etc. bailing them out in emergencies). With the new laws, it is far easier to be insured and most of these kids will get their insurance at a heavily subsidized rate, if not for free. They will also begin to participate in a pool, one that should really have every person in it from birth to death to function at its best. The mandate, kicking in when people refuse to purchase this insurance, is forcing people to pay for the minimal catastrophic insurance they already have access to (these entitlements) in light of the fact that they are choosing not to make their own arrangements to leave that subsidized pool. We have all been paying for these programs, in one way or another, since these laws were created, and so this is really a shifting of cost burden, focusing it more on those who are likely to require benefits from that pool. The mandates won’t really cover the costs of these entitlements, and all taxpayers will still be bailing these people out, (and I think we agree as a country that this is okay), but those who choose to pay the mandate fee, penalty, tax, whatever you choose to call it, rather than buy insurance, will be forced to kick in some money specifically dedicated to their anticipated costs. So, is this constitutional? It seems clear to me that it is. If taxing us all along for the cost of these benefits has been constitutional, why is it a problem to continue doing so?