The Yale Law Journal Online: “Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism” and “Bad News for John Marshall”

The Yale Law Journal Online has published its third and fourth installments in a series on the Necessary and Proper Clause and the constitutionality of the 2010 health care reform law. The first essay in the series, Andrew Koppelman’s Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, argued that the individual mandate in the Patient Protection and Affordable Care Act is a “necessary and proper” exercise of Congress’s powers under Article I, Section 8 of the Constitution. In Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, Gary Lawson and David B. Kopel responded to Professor Koppelman’s essay and, on argued—on the basis of their historical analysis—that the Necessary and Proper Clause does not validate the constitutionality of the individual mandate.

The debate now continues with Koppleman’s Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism and Lawson and Kopel’s Bad News for John Marshall. In Bad News for Everybody, Koppelman argues that Lawson and Kopel’s interpretation of the Necessary and Proper Clause “implies the greatest revolution in federal power in American history.” He concludes that using “new evidence of original meaning [as] a legitimate basis for hamstringing Congress’s power to address pressing national problems” is “insane.” Lawson and Kopel respond once again in Bad News for John Marshall, arguing that Koppelman “wrongly conflates [their] argument with a wide range of interpretative and substantive positions that are not logically entailed.” They conclude that the original understanding of the Necessary and Proper Clause is fully consistent with Chief Justice John Marshall’s reasoning in McCulloch v. Maryland. They write: “If, as Professor Koppelman appears to believe, only reprobates intent upon ending civilization, crashing the world financial order, and randomly killing off the populace could advance our arguments, a new biography of John Marshall is clearly warranted.”

Preferred citations:

Andrew Koppelman, Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism, 121 YALE L.J. ONLINE 515 (2012),

Gary Lawson & David B. Kopel, Bad News for John Marshall, 121 YALE L.J. ONLINE 529 (2012), 2012/03/06/lawson&kopel.html.

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