Our Supreme Court Amicus Brief Explaining Why the Individual Mandate is not “Proper”

We have just filed an amicus brief in the individual mandate case that I wrote on behalf of the Washington Legal Foundation and a group of prominent constitutional law scholars. The brief is available here. The legal scholar amici include Steve Calabresi, James Ely, Steve Presser, and Volokh Conspiracy bloggers Jonathan Adler and Todd Zywicki, among others. Several other prominent legal scholars were unable to join us because they are involved with other amicus briefs in the case.

Rather than considering the full range of constitutional issues in the case, we decided to focus on why the mandate falls outside the scope of Congress’ powers under the Necessary and Proper Clause because it is not “proper.” We thought that an in-depth analysis of this crucial, underemphasized issue would be more useful than a brief that covered multiple issues in a more superficial way and that would overlap far more with other briefs filed in the case. As far as I know, this is the only amicus brief that focuses solely on the issue of propriety.

The problem of propriety is the main flaw in the federal government’s claim that the Necessary and Proper Clause authorizes the mandate – which is otherwise the strongest constitutional argument in favor of the mandate. It is striking that the Justice Department largely ignores the issue of propriety in their brief for the Petitioners. As explained more fully in our brief, the federal government’s position essentially transforms the Necessary and Proper Clause into just a “Necessary Clause.” This goes against logic, the text of the Constitution, the original meaning, and Supreme Court precedent. We hope to focus more attention on this weakness in the federal government’s case.