The Hill has a story claiming that the federal government has changed its defense of the individual mandate to emphasize the Necessary and Proper Clause more:
The Obama administration has shifted its legal arguments as it prepares to defend the president’s healthcare law before the Supreme Court.
Written briefs in the landmark case increasingly have focused on a part of the Constitution that didn’t get much attention in lower courts….
The shift moves the focus of Justice’s argument from the Commerce Clause of the Constitution to the Necessary and Proper Clause, which says Congress can make laws that are necessary for carrying out its other powers.
The federal government has in fact relied on the Necessary and Proper Clause throughout the litigation in the lower courts. So at most this is a shift of emphasis rather than substance. The actual logic of the argument is essentially the same as in the lower courts. And every lower court decision striking down the mandate has in fact considered and rejected the government’s Necessary and Proper Clause reasoning; the lower court decisions upholding the mandate largely ignored the issue because they concluded that the mandate could be justified under the Commerce Clause alone.
If the Obama Administration has decided to emphasize the Necessary and Proper Clause argument more, it is remarkable that their brief for the Supreme Court case almost completely ignores the biggest weakness in that argument: the possibility that the mandate is not “proper” even if it is “necessary.” Both Supreme Court precedent and the text and original meaning of the Constitution make clear that these are two separate requirements, both of which must be met. Yet the government’s approach to the case essentially transforms the Necessary and Proper Clause into the “Necessary Clause.” The amicus brief I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars focuses on this very issue. It explains in detail why the mandate is not “proper” and therefore cannot be justified under the Necessary and Proper Clause even if it is “necessary.”
UPDATE: The Hill article speculates that the government’s emphasis on the Necessary and Proper Clause may be an effort to attract Justice Scalia’s vote. If so, it is worth noting that Scalia has repeatedly emphasized in previous opinions that propriety is a requirement distinct from necessity which imposes constraints on congressional power even in cases where the challenged federal law may be “necessary.” I discuss Scalia’s opinions in this field in the Washington Legal Foundation brief (pp. 13-14).