When "Essential" Does Not Mean "Necessary And Proper"

In his decision striking down the health bill, Judge Vinson found it necessary to perform a double backflip and explain that while the individual mandate was "essential"to the Affordable Care Act, it was not Necessary and Proper to the implementation of the law. Vinson wrote (PDF):

The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers. As the previous analysis of the defendants’ Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution. [. . .] .The defendants have asserted again and again that the individual mandate is absolutely “necessary” and “essential” for the Act to operate as it was intended by Congress. I accept that it is.26 Nevertheless, the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be “proper."

Why is the individual mandate not "proper?" According to Vinson:

The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers. As the previous analysis of the defendants’ Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution. To uphold that provision via application of the Necessary and Proper Clause would authorize Congress to reach and regulate far beyond the currently established “outer limits” of the Commerce Clause and effectively remove all limits on federal power. As the Supreme Court explained in Printz: "When a “Law . . . for carrying into Execution” the Commerce Clause [violates other Constitutional principles], it is not a “Law . . . proper for carrying into Execution the Commerce Clause.

What letter of the Constitution does the individual mandate violate? Vinson does not say. As for the "spirit," Vinson provides no ghostly clue as to what he is talking about. Vinson talks about monsters, not Constitutional provisions:

[T]he “essential attributes” of the Commerce Clause limitations on the federal government’s power would definitely be compromised by this assertion of federal power via the Necessary and Proper Clause. If Congress is allowed to define the scope of its power merely by arguing that a provision is “necessary” to avoid the negative consequences that will potentially flow from its own statutory enactments, the Necessary and Proper Clause runs the risk of ceasing to be the “perfectly harmless” part of the Constitution that Hamilton assured us it was, and moves that much closer to becoming the “hideous monster [with] devouring jaws” that he assured us it was not.
Chief Justice John Marshall, whose seminal McCulloch v. Maryland decision Vinson brazenly cites, saw it differently:

[S]hould congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land.

Vinson does not identify any part of the Constitution which prohibits the individual mandate nor does Vinson argue that the ACA was passed for the accomplishment of objects not intrusted to government. Instead, Congress acted within its Constitutional powers as Justice Marshall described it:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

Alexander Hamilton would surely be surprised to see his name invoked to buttress Vinson's reasoning. In his defense of the constitutionality of the First Bank of the United States, Hamilton wrote in 1791:

[E]very power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.

To find support for his radical view that legislative provisions "essential" to the effectuation of legitimate legislative ends that are not prohibited by the Constitution are not "Necessary and Proper," Vinson should look elsewhere than Hamilton and Marshall.

Speaking for me only

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    Thanks for writing this up (none / 0) (#1)
    by andgarden on Mon Jan 31, 2011 at 05:39:03 PM EST
    Reading Vinson's opinion, you would think that Jefferson had won the bank battle.

    Exactly (none / 0) (#2)
    by Big Tent Democrat on Mon Jan 31, 2011 at 05:40:48 PM EST
    Haven't had a chance to read (none / 0) (#3)
    by Maryb2004 on Mon Jan 31, 2011 at 05:55:25 PM EST
    the opinion but thanks for this.  

    Maybe I'll read it tomorrow when I'm ice-storm stuck.  Or not.  

    Thanks, BTD, this helps. (none / 0) (#4)
    by jeffinalabama on Mon Jan 31, 2011 at 06:21:20 PM EST
    me to understand.

    Perhaps you could address the slippery slope worry (none / 0) (#5)
    by catchy on Mon Jan 31, 2011 at 08:45:14 PM EST
    From the decision:

    "Congress could require that people buy and consume broccoli at regular intervals, not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system. Similarly, because virtually no one can be divorced from the transportation market, Congress could require that everyone above a certain income threshold buy a General Motors automobile -- now partially government-owned -- because those who do not buy GM cars (or those who buy foreign cars) are adversely impacting commerce and a taxpayer-subsidized business...."

    Do you allow that COngress could mandate GM purchases and broccoli consumption?

    Or are these examples 'improper' in some sense in which mandated health insurance isn't?

    The Broccoli example (none / 0) (#6)
    by andgarden on Mon Jan 31, 2011 at 08:55:13 PM EST
    is easily addressed by the due process clause of the 5th Amendment. (Does it concern you that a state legislature might pass such a law?)

    The "buy a car" example is merely implausible. As is, e.g., 100% tax rates for everyone.


    Maybe they could (none / 0) (#7)
    by Big Tent Democrat on Mon Jan 31, 2011 at 09:15:46 PM EST
    Take it up with Hamilton and Marshall.

    So you're biting the bullet (none / 0) (#8)
    by catchy on Mon Jan 31, 2011 at 09:33:26 PM EST
    The Marshall quote does seem fairly clear.

    But the Hamilton is arguable. E.g. the coercion of the mandate could be 'immoral'. Or, if it lead to more coercion, incompatible with a society's essential political ends.


    congress could require (none / 0) (#9)
    by cpinva on Mon Jan 31, 2011 at 11:13:05 PM EST
    that everyone working be part of social security! oh, wait, they did that already, and it's survived judicial scrutiny. i take it judge vinson has been ensconsed in a cave for all of his life?

    Vinson's "First and Last Principles" (none / 0) (#10)
    by Categorically Imperative on Tue Feb 01, 2011 at 01:12:12 PM EST
    are wrong too.  He spends a good deal of time attempting to demonstrate that it is beyond question that the Commerce Clause was initially understood to be limited to trade, and that the motivating factor behind the Commerce Clause was to permit the development of a coherent national trade policy (or, on the flip side of that coin, allow Congress to prevent self-destructive state protectionism).  No doubt this issue was at the forefront of the framers' thinking.

    Vinson ignores some critical historical evidence, however.  The Commerce Clause authorizes the regulation of commerce between and among the states, foreign nations, and the Indian tribes.  In 1790, clearly relying on its commerce power, Congress passed "An Act to Regulate Trade and Intercourse with the Indian Tribes."  That Act regulated not just "trade," but also provided for criminal sanctions against those who committed "any crime or trespass" against peacable Indians.  The Act also provided for the broadest possible federal jurisdiction over such offenses, and effectively authorized the use of nationwide subpoenas ad testificandum to compel the appearance of witnesses to such alleged crimes at trial.

    The very people who wrote the Commerce Clause apparently understood it to permit federal criminal regulation of "any crime or trespass" against an entire civilization of people, regardless of whether that crime or trespass had any relationship to "trade."  Vinson's entire "originalist" premise is a sham.