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.