Necessary And Proper

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. [. . .] This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.” Lopez, supra, at 567—568. - Justice Scalia in concurrence in Gonzales v. Raich

At the Volokh Conspiracy, Professor Orin Kerr notes that Judge Roger Vinson in his decision (PDF) striking down the individual mandate and the Affordable Care Act ignored Supreme Court precedent and instead relied upon his own conceptions of the "first principles" of the Constitution. something a district court judge is not permitted to do:

This might work as a Supreme Court opinion that can disagree with precedent. But Judge Vinson is just a District Court judge. And if you pair Justice Thomas’s dissent in Raich with Judge Vinson’s opinion today, you realize the problem: Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.

Obviously, I’m not arguing that Judge Vinson was bound by Justice Thomas’s dissent. Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.

Ironically, Judge Vinson claimed that it was not in his power to recognize the individual mandate as constitutional as it would require the Supreme Court to make such a "change" in constitutional law:

I am required to interpret this law as the Supreme Court presently defines it.

Except of course, when he does not want to. For example, on the meaning of the Necessary and Proper clause. Judge Vinson mentions U.S. v. Comstock, while purporting to apply it. Here is what Comstock said about the Necessary and Proper clause:

We have since made clear that, in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. Sabri v. United States , 541 U. S. 600, 605 (2004) (using term “means-ends rationality” to describe the necessary relationship); ibid. (upholding Congress’ “authority under the Necessary and Proper Clause” to enact a criminal statute in furtherance of the federal power granted by the Spending Clause); see Gonzales v. Raich , 545 U. S. 1, 22 (2005) (holding that because “Congress had a rational basis” for concluding that a statute implements Commerce Clause power, the statute falls within the scope of congressional “authority to ‘make all Laws which shall be necessary and proper’ to ‘regulate Commerce … among the several States’ ” (ellipsis in original)); see also United States v. Lopez , 514 U. S. 549, 557 (1995) ; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc. , 452 U. S. 264, 276 (1981).

Of course, as Chief Justice Marshall stated, a federal statute, in addition to being authorized by Art. I, §8, must also “not [be] prohibited” by the Constitution. McCulloch, supra, at 421. But as we have already stated, the present statute’s validity under provisions of the Constitution other than the Necessary and Proper Clause is an issue that is not before us. Under the question presented, the relevant inquiry is simply “whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power” or under other powers that the Constitution grants Congress the authority to implement. Gonzales , supra, at 37 (S calia, J., concurring in judgment) (quoting United States v. Darby , 312 U. S. 100, 121 (1941) ).

We have also recognized that the Constitution “addresse[s]” the “choice of means” “primarily … to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone.” Burroughs v. United States , 290 U. S. 534, 547–548 (1934). See also Lottery Case , 188 U. S. 321, 355 (1903) (“[T]he Constitution … . leaves to Congress a large discretion as to the means that may be employed in executing a given power”); Morrison , supra, at 607 (applying a “presumption of constitutionality” when examining the scope of Congressional power); McCulloch, supra, at 410, 421.

(Emphasis supplied.) Vinson ignores all of this and creates his own unique standard for review of the exercise of the Necessary and Proper clause power:

[T]he Necessary and Proper Clause vests Congress with the power and authority to exercise means which may not in and of themselves fall within an enumerated power, to accomplish ends that must be within an enumerated power. Although Congress’ authority to act in furtherance of those ends is unquestionably broad, there are nevertheless “restraints upon the Necessary and Proper Clause authority.” See Raich, supra, 545 U.S. at 39 (Scalia, J., concurring in judgment).

[. . .] 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. [. . .T]he 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.”

This reasoning reads the Necessary and Proper clause out of the Constitution and is blatant conflict with existing Supreme Court precedent. As Vinson himself writes, the Congress can exercise power under the Necessary and Proper clause that "may not in and of themselves fall within an enumerated power, to accomplish ends that must be within an enumerated power." Vinson accepts that the ends of the ACA fall within the enumerated powers under the Commerce Clause, so what precisely makes this exercise of the Necessary and Proper power by the Congress unconstitutional? Vinson waves his hand at this issue:

The individual mandate is outside Congress’ Commerce Clause power, and it cannot be otherwise authorized by an assertion of power under the Necessary and Proper Clause. It is not Constitutional.

But the exercise of the Necessary and Proper clause power, as Vinson himself writes, need not "in and of themselves fall within an enumerated power, to accomplish ends that must be within an enumerated power." Vinson's reasoning makes no sense.

In the end, Professor Kerr puts it well:

As Justice Thomas put it, Congress can regulate virtually anything. Judge Vinson says that this cannot be the law because it would make the federal government too powerful. But Judge Vinson does not consult existing doctrine before declaring the principle, and that’s the problem: If you take existing doctrine seriously, it readily fits the mandate under the Necessary and Proper clause.

Vinson's deliberate flouting of centuries of Supreme Court precedent is the real story of this decision.

Speaking for me only

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  • Display: Sort:
    Looks like its going to the SCOTUS (none / 0) (#1)
    by Saul on Tue Feb 01, 2011 at 09:06:15 AM EST
    If I am not mistaken there have been four separate decisions concerning the health bill so far.  Split two and two along political lines if you look at who appointed these judges.

    I believe it going to split also in the SC with Kennedy the deciding judge IMO

    How do you think it will be decided at the SC?

    was going to ask (none / 0) (#2)
    by Capt Howdy on Tue Feb 01, 2011 at 09:20:02 AM EST
    the same question

    J. Kennedy plus ? (none / 0) (#13)
    by christinep on Tue Feb 01, 2011 at 12:27:47 PM EST
    For some strange reason I'd guess that C.J. Roberts' disposition on this one matter might not be obvious. The reason: If the C.J.'s evident corporate background, etc. considers the realpolitik ramifications of imitating DistCt Vinson, the matter might have all kinds of nuances (compared to the more ideological types...Scalia, Thomas, Alito.) And, in another year or so, a lot of ordinary people might take the law's donut hole+pre-existing+caps+ability to rescind changes as a given.  That plus the more conventional reading of a law to inject severability when possible (even when not explicitly stated) might have weight for the C.J. and/or J. Kennedy in the overall judical construction sense.

    Even to a non-lawyer, the mental contortions (none / 0) (#3)
    by ruffian on Tue Feb 01, 2011 at 09:20:37 AM EST
    required to make this ruling seem a tad excessive. Activist judges!

    That's what I was thinking too (5.00 / 1) (#5)
    by Militarytracy on Tue Feb 01, 2011 at 09:26:01 AM EST
    And the write that BTD links even takes the issue back to where its political unrest lies.  When I was reading that I said to myself that all judges must be activist judges in this light :)

    Orin Kerr (none / 0) (#4)
    by Maryb2004 on Tue Feb 01, 2011 at 09:21:17 AM EST
    is a voice crying in the wilderness over there.  

    I read his post this morning and add myself to "the three of us who are interested in whether the decision is correct under existing law."

    I'll tell you why (none / 0) (#6)
    by andgarden on Tue Feb 01, 2011 at 09:31:42 AM EST
    the people on the right right refuse to articulate why they think the mandate is otherwise impermissible: they're basing that conclusion on the proposition that it is a general infringement on some amorphous preexisting liberty. In other words, they want substantive due process.

    Of course they do (5.00 / 1) (#9)
    by Maryb2004 on Tue Feb 01, 2011 at 10:12:40 AM EST
    but they can never admit that.  

    They sure have no problem infringing (none / 0) (#7)
    by ruffian on Tue Feb 01, 2011 at 09:49:37 AM EST
    plenty of other liberties. I'll make a deal - repeal the HCR and the Patriot Act at the same time, and we'll call it even.

    I'd take that deal in a heartbeat (none / 0) (#10)
    by republicratitarian on Tue Feb 01, 2011 at 10:20:08 AM EST
    Well (none / 0) (#8)
    by TeresaInSnow2 on Tue Feb 01, 2011 at 10:11:20 AM EST
    Considering that this mandate is truly a nightmare scenario, inasmuch as you all defend it on legal merits, you may want to hope it goes down by partisan judgment, in case you ever have to be on individual insurance.

    Legal or not....People will be legally FORCED to buy high deductible insurance from the weasels that I've had to deal with for the last 10 years, without any cost controls that matter.  Try and sleep at night while defending that, no matter how "legal" it is. That provision in the law is pretty much an economic Ted Bundy.  Kind of indefensible, but I guess somebody has to defend it.

    It is interesting how insurance companies are now being forced to include benefits that are relatively cheap (like preventive care) and are minimizing or eliminating expensive benefits  like prescription drugs and imaging coverage to 'pay for it'.  And no foresight was written into the law to prevent them from doing this.  It was almost as if insurance companies wrote this law...and I joke because I know they did. Yes, the insurance companies will have to cover people with pre-existing conditions, but those people (people like cancer patients) will need things like prescription drugs and imaging and won't care less about the $25 flu shot they'll now get for free.  They'll be forced to buy the insurance, and they won't get their expensive needs covered. A nightmare scenario.  Likely those people will opt out of insurance and pay the tax because it makes more economic sense given their needs.

    Medicaid  is about the only thing good about this law...oh, and coverage to age 26, if on a parents plan.  The mandate?  Indefensible.

    Absolutely false (5.00 / 1) (#11)
    by andgarden on Tue Feb 01, 2011 at 11:40:54 AM EST
    If you choose not to buy insurance, you just pay a tax to Uncle Sam.

    Which (none / 0) (#12)
    by jbindc on Tue Feb 01, 2011 at 12:13:07 PM EST
    is actually UNLIKE the car insurance argument.

    Taxes are unconstitutional (none / 0) (#15)
    by MKS on Tue Feb 01, 2011 at 12:55:24 PM EST
    because the Founding Fathers did not like them.....I know--the founders were God fearing Christians, so they hated taxes.

    Taxes are unAmerican and unChristian, and thus are unconstitutional.


    Some taxes are (none / 0) (#19)
    by Catesby on Tue Feb 01, 2011 at 09:34:17 PM EST

    "No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."

    The 16th Amendment allowed a change to this to allow for the taxation of income, but not a flat tax to an individual.


    I sleep well at night, thank you very much (none / 0) (#14)
    by christinep on Tue Feb 01, 2011 at 12:34:00 PM EST
    If I thought that a Vinson approach at the SCt would invalidate the whole law and that many people would end up with nothing (no protection nor remedies re: pre-existing conditions, donut hole soaring costs, rampant rescission again, imposition of $$ caps that harm if not allow to die those with longterm chronic conditions, etc.), then--to be sure--I could not sleep.

    Founders didnt think so (none / 0) (#17)
    by NMvoiceofreason on Tue Feb 01, 2011 at 07:24:33 PM EST
    http://blogs.forbes.com/rickungar/2011/01/17/congress-passes-socialized-medicine-and-mandates-health -insurance-in-1798/

    In July of 1798, Congress passed - and President John Adams signed - "An Act for the Relief of Sick and Disabled Seamen." The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.

    Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.

    And when the Bill came to the desk of President John Adams for signature, I think it's safe to assume that the man in that chair had a pretty good grasp on what the framers had in mind.

    This law did not require everyone (none / 0) (#20)
    by Catesby on Tue Feb 01, 2011 at 09:36:51 PM EST
    to be sailors, nor did it require those who were to purchase private insurance.

    It was more like a mini-Medicare.


    A re-post from the other thread (none / 0) (#16)
    by Categorically Imperative on Tue Feb 01, 2011 at 01:25:06 PM EST
    But it fits better here, I think.

    Vinson's "First Principles" 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.

    something a district court judge is not permitted (none / 0) (#18)
    by diogenes on Tue Feb 01, 2011 at 07:48:23 PM EST
    Well, then, I'm sure it will be overturned on appeal.