The Volokh Conspiracy

The Health Care Case: The Supreme Court’s Decision and its Implications - A new book on last year’s controversial Supreme Court decision on Obamacare is now available for pre-order at Amazon. The book is edited by Columbia law professors Nathaniel Persily, Gillian Metzger, and Trevor Morrison, and published by Oxford University Press. It contains essays on numerous aspects of the health care decision by a wide range of scholars, including VC-ers Jonathan Adler, Randy Barnett, and myself. There is also a large number of contributions by leading scholars on the other side of the issue, including Jack Balkin, Jamal Greene, Andrew Koppelman, Gillian Metzger, and Neil Siegel, among others. The Oxford University Press website has a complete table of contents here.

My own contribution to the volume addresses the Court’s analysis of the Necessary and Proper Clause, and explains why the individual health insurance mandate was not “proper” even if it could be considered “necessary.” An earlier version of that essay is available on SSRN here.

A common trope of many Second Amendment advocates is to urge more vigorous enforcement of existing federal gun control laws, as the alternative to enacting additional laws. Rhetorically, that’s very effective. But as a policy matter, it is not always a good idea. Consider legislation recently considered by the Senate:

The Manchin-Toomey amendment was supported by the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), although the group later dropped its support for reasons unrelated to the issues raised in this post. Section 102(3) of Manchin-Toomey was the finding that “Congress believes the Department of Justice should prosecute violations of background check requirements to the maximum extent of the law.”

The alternative to Manchin-Toomey was the Grassley-Cruz substitute, which was supported by the National Rifle Association. Grassley-Cruz had a much more detailed program, with supporting funding, to increase federal prosecutions for violations of 18 U.S. Code 922 (the section which defines most of the prohibited acts by persons who are not licensed firearms dealers) and section 924 (the penalties section, with penalties for the various offenses by licensed dealers and by other persons, as well as definitions of some additional crimes). The beefed-up enforcement is in pages 15-26 of Grassley-Cruz.

Both Manchin-Toomey and Grassley-Cruz included a variety of other changes in federal gun laws, and some of them were very constructive. But as for the prosecution provisions, I think they were dubious.

To begin with, much of what is in section 922 is possessory offenses, occurring entirely within a single state. Supposedly, these provisions are enacted under Congress’s power “to regulate Commerce...among the several States.” I realize that Supreme Court since 1937 has usually been reluctant to rule that a federal criminal statute is outside the interstate commerce power. However, that judicial deference to congressional statutes is premised on the notion that Congress itself has carefully considered the constitutionality of a statute. Chief Justice Marshall’s opinion in McCulloch v. Maryland expressly discussed this point (regarding the Necessary and Proper Clause). President Andrew Jackson’s subsequent veto of the re-charter of the Second Bank of the United States cited the McCulloch opinion to make his point that the political branches must exercise their own constitutional judgment; that a deferential court has not stricken a particular type of law does not excuse Congress and the President from the task of making their own judgments about whether a particular bill is constitutional.

During the latter 20th century, the Supreme Court was fairly reticent about the meaning of the Second Amendment, but many legislators and citizen activists opposed particular anti-gun bills because they believed that such bills violated the Second Amendment. Even when there was no realistic prospect that the Supreme Court would strike down a federal law on Second Amendment grounds (e.g., in 1975), it was legitimate for legislators and citizens to oppose a bill because of Second Amendment scruples.

Accordingly, it is equally legitimate to oppose a bill today because of Commerce Clause scruples. I believe that Justice Thomas’s concurrence in Printz v. United States raised a useful question. While he joined the majority opinion (Congress cannot order local law enforcement to carry out federal background checks), he also wondered if Congress’s power over interstate commerce really permitted Congress to prescribe how a firearms retailer in one state would sell an item to a consumer in that same state. A fortiori, there are even more serious questions about federal laws regarding the mere possession of firearms intrastate, or setting conditions for firearms transactions among two people in a single state, neither of whom is engaged in interstate commerce. (The Federal Firearms Licensee is, at least, someone who is actively engaged in commerce, and who frequently receives firearms in interstate commerce, even though his subsequent sales may be only intrastate.)

Many of the provisions of sections 922 and 924 which apply to purely intrastate and non-commercial activity might well be legitimate subjects of state legislation. For example, every state has laws against gun possession by convicted felons.

But not everything in 922 would be a good idea for any level of government, and a blanket increase in enforcement of all of 922 would harm innocent people. For example, 18 U.S.C. 922(x) bans handgun possession by persons under 18. There are certain exceptions to the prohibition, but they require “the prior written approval of the juvenile’s parent or legal guardian.” Now in the United States, do you think that when 17-year-olds on a ranch take a handgun with them in the pick-up truck to go check on the cattle at night, that their parents have given them “prior written approval”?

Lack-of-written-permission prosecutions under 922(x) are close to nil, and they ought to stay that way. Demanding more 922 prosecutions could have the unintended effect of giving U.S. Attorneys and BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives) agents an incentive to boost their numbers by bringing such cases.

Or let’s consider the call for greater prosecutions of people who fail the National Instant Criminal Background Check System (NICS), when they try to buy a gun in a store. The vast majority of such situations do not result in a prosecution. Is it possible that some more of them should? Yes, to the extent that some of these people are genuinely dangerous. However, I suggest that the reason that many people submit to a background check in the first place–sometimes waiting hours or days for the FBI or its state counterpart to conduct the “instant” check, is that they have no idea that they are a prohibited person.

For example, in 1979, a young man gets in a loud argument and shoving-match with his live-in girlfriend. The neighbors in the apartment next door are annoyed by the clamor, and they call the police. The young man spends a night in jail, pleads guilty to disturbing the peace, and pays a $100 fine. He may have actually been innocent, since the girlfriend shoved first. But the cost of hiring a lawyer to take the case to trial was more than he could afford. Thereafter, he stays out of trouble. He buys a gun in 1985. In 1994, when his state (let’s say it’s Virginia) now has a functioning instant check system, he buys another gun, and is duly approved. In 1996, Congress changes the law to prohibit gun possession by domestic violence misdemeanants, and make the prohibition retroactive to misdemeanors from before 1996. 18 U.S. Code 922(g)(9).

By 2013, BATFE has scoured state records of misdemeanor convictions, and decided which cases it will classify as “domestic violence.” So now the man is on the FBI’s prohibited persons list. When he tries to buy a gun in 2013, he is rejected. You can argue the pros and cons of whether he ought to be prohibited, but to me, it seems very unfair for him to be prosecuted for a federal felony.

There are many, many other examples of people who can be prohibited persons without realizing it. The Iraq War veteran who received some mental health benefits, and then the Veterans Administrations gave his name (and the names of thousands of other similar veterans) to the FBI. The woman who is a lawful user of medical marijuana pursuant to her state law, and did not know that the federal government had obtained the state list of persons with medical marijuana cards.

For above examples, it is really not a problem that no federal prosecution results when they fail the NICS check.

To the extent that federal incentives is meant to drive up the numbers for prosecutions of 922 in general, some of these people would be prosecuted even if they were not attempting to buy a gun. Perhaps one of them is driving home from a day at the target range, and a police officer pulls them over for a traffic violation, and sees the unloaded rifle in the rack of the pick-up truck. The officer runs the person’s name through the databases, and then apprehends a prohibited person in possession of a gun. A very easy federal felony prosecution, and the kind that would happen more often when federal incentives are trying to boost the number of cooperative state-federal prosecutions under 922.

I agree with the federal circuit cases that have held that illegal aliens do not have a Second Amendment right to possess firearms. But the fact that a law is constitutionally legitimate does not mean that maximizing prosecutions is always a good idea. For example, in United States v. Huitron-Guizar (10th Cir., 2012), the defendant had been brought to the United States when he was three years old. His sister was an American citizen, but he was not.  When he was 24 years old, he was discovered to have in his home a rifle, a shotgun, and a handgun. He was sentenced to 18 months in federal prison.

Grassley-Cruz put its greatest efforts into increasing prosecutions for convicted felons and fugitives. These are categories for which firearms prohibition, as a general matter, is plainly allowed under District of Columbia v. Heller. However, there’s a difference between prosecuting the guy who was released from prison for armed robbery four months ago, and is found to be illegally carrying a handgun outside a liquor store — and the guy who was convicted of tax evasion or marijuana possession three decades ago, and whose home is found to contain the unloaded hunting rifle he inherited from his father one decade ago.

The National Rifle Association  and CCRKBA have quite persuasively documented the tendency of BATFE to, at least some of the time, try to boost its numbers by concentrating enforcement efforts on easy-to-prosecute technical violations, rather than on situations where there is a real danger to public safety. Enacting new laws demanding “maximal” enforcement of NICS, or trying to increase the prosecutions for 18 U.S.C 922 & 924 across the board, would be a poor use of criminal justice resources, and would inflict very excessive penalties on many people who are harmless. If proponents of increased federal prosecution can document a large number of cases which really should be prosecuted, and which are not being prosecuted, the best solution would be a new President who would appoint a BATFE Director and U.S. Attorneys who would bring the cases which really help public safety–and who would also know that not every violation of every iota of sections 922 and 924 is worth making a federal case.

The Liberty Law Blog recently posted my review of Harvard Law Professor Einer Elhauge’s book Obamacare on Trial, which was possibly the first academic book on the Obamacare litigation published by a legal scholar since the Supreme Court issued its decision in NFIB v. Sebelius. Elhauge is a topnotch scholar, and his book makes some interesting points in defense of the constitutionality of the individual health insurance mandate. But it’s not as strong as it could have been had he been able to address some key issues in greater depth:

Harvard Law Professor Einer Elhauge’s book Obamacare on Trial is a useful and sometimes insightful statement of several arguments in defense of the mandate. It is impressive that Elhauge managed to get the book in print just a couple months after the Court’s decision came down on June 28, 2012. But, perhaps because of the haste with which it was published, the book fails to adequately address some key issues, and likely will not be persuasive to those not already inclined to agree with Elhauge’s conclusions....

Elhauge’s most distinctive contribution to the debate over the mandate was his repeated invocation of two 1790s laws that, he argues, provide precedents for upholding the individual mandate as an exercise of the commerce power: The 1792 Milita Act, which required militia members to possess muskets and other military equipment; and the 1798 Act for the Relief of Disabled and Sick Seamen, which required owners of American ships arriving from foreign ports to a withhold a part of their seamen’s wages and pay the money into a government-administered fund for the “temporary relief of sick and disabled seamen....”

This is an interesting thesis and Elhauge defends it well. But, ultimately, it flounders on the many clear differences between the two 1790s acts and the health insurance mandate....

Although Obamacare on Trial is a thoughtful defense of Elhauge’s distinctive take on the mandate litigation, it gives short shrift to several other important aspects of the case. For example, Elhauge argues that the mandate is authorized by the Necessary and Proper Clause as well as the Commerce Clause. But he fails to consider the point that a mandate authorized by that Clause must be “proper” as well as “necessary” for “carrying into Execution” other powers granted to the federal government in the Constitution. That is the key reason why the Necessary and Proper Clause rationale was rejected by a majority of the Court...

Elhauge also devotes little attention to the Tax Clause reasoning under which Chief Justice Roberts ultimately upheld the mandate. And he devotes almost none at all to the many arguments against that conclusion, including those endorsed by every lower court that considered the issue....

Overall, Obamacare on Trial is a thought-provoking contribution to the debate over the individual mandate case. But its limitations prevent it from becoming the definitive work on the subject, or even the definitive defense of the case for the mandate’s constitutionality.

In his recent response to Randy Barnett, co-blogger Orin Kerr argues that previous precedent, especially the Supreme Court’s 2010 decision in United States v. Comstock justifiably led many observers to expect that the Court would readily uphold the individual health insurance mandate, and that its failure to do so under the Commerce and Necessary and Proper Clauses was a major change from Comstock and other prior precedents.

I agree that Comstock was a very broad interpretation of federal power in some respects, and I believe it was wrongly decided. Yet, even at the time Comstock was decided, it was easy to find crucial differences between that case and the individual mandate case. In a post written on the day that Comstock came down and in an article about Comstock published in the fall of 2010, I pointed out two such distinctions. First, Comstock endorsed a broad interpretation of the meaning of “necessary” in the Necessary and Proper Clause, but said nothing about the meaning of “proper.” The challenge to the mandate was primarily based on the idea that it was “improper” rather than unnecessary. Second, in upholding the law at issue in Comstock, the Court relied in part on a five-factor test that, when applied to the mandate mostly cut against the federal government. In my article (pg. 266), I also noted the possibility that the inclusion of the five factor test in the opinion may have been the price that Chief Justice John Roberts forced the four liberal justices to pay for casting the decisive fifth vote in favor of the majority opinion (Justices Alito and Kennedy concurred in separate opinions that outlined much narrower visions of the scope of federal power).

These distinctions were, in fact, exactly the ones relied on by Chief Justice Roberts in his key swing vote opinion in the individual mandate case. He concluded that the individual mandated was not “proper,” even if it was “necessary,” and also cited key differences between the law in Comstock and the individual mandate under the five factor test, such as that the mandate was not “narrow in scope” (though Roberts did not go through all five factors individually).

Orin and other observers who expected the mandate case to be a lopsided victory for the federal government also missed the significance of Justice Kennedy’s opinion for a unanimous Court in the 2011 case of Bond v. United States, where he emphasized that constitutional “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. As I pointed out in two posts written well before the mandate oral argument (see here and here), this signaled that the Court’s key swing voter was unlikely to uphold the mandate if it meant giving Congress a virtual blank check to enact any other mandates it wanted. And inability to specify a meaningful limit to the scope of its power was always the key flaw in the federal government’s position.

I don’t mean to suggest that, after Comstock and Bond, it was clear that a majority of the Court would reject the federal government’s Commerce and Necessary and Proper arguments, or even that it was unreasonable to believe that the federal government was more likely to win on these points than the plaintiffs. I also don’t mean to suggest that I myself was an especially good prognosticator during the individual mandate litigation. Although I was right about the implications of Comstock and Bond, and also right (from early on) to expect a close decision, I got some other important points wrong, especially in dismissing the possibility that the mandate might be upheld as a tax. But I do think Comstock and especially Bond should have alerted observers to the likelihood that the individual mandate litigation would not be an easy win for the federal government. In combination with other factors, they certainly had that effect on me.

UPDATE: Randy Barnett had some prescient thoughts about the interaction between Comstock and the individual mandate case in this post written the day Comstock was decided.

UPDATE: #2: I should note that, until the oral argument, I consistently predicted that it was more likely that the mandate would be upheld than struck down, and afterwards, I said it was a 50-50 proposition. So I don’t blame anyone merely for believing that the the mandate was going to be upheld under the Commerce or Necessary and Proper Clauses. My critique is directed at those who claimed that the case would be an easy win for the federal government and that any other result would be a major break with precedent, in some cases long after there were plenty of indications suggesting otherwise.

The government is prosecuting three foreigners for the participating in “combat operations” in a foreign civil war.

The indictment apparently alleges no connection to America, or even foreign commerce (unlike a similar 2011 case that lacked an apparent connection to the U.S.) The defendants are Somalis who fought in Somalia. In a previous post, I discussed why the prosecution exceeds’s Congress’s Define & Punish powers; here we’ll consider other possible Art. I grounds. Today – the Foreign Commerce Clause; later today, War and Treaties. Tomorrow: additional thoughts about American exceptionalism in universal jurisdiction.

Foreign Commerce Clause
My previous post focussed on the Define & Punish Clause as the basis for the MST law; today, we will examine some other suggestions. I addressed the Define & Punish clause first because it is the first Art. I power Congress cited in its “findings” in support of the section. (sec. 301(a)(2) of the public law). Later, the findings do suggest the Commerce powers as a tertiary rationale: terrorism discourages travel from the U.S. to affected country, and vice versa. It also mentions general harm to “market stability.” This sounds a lot like the arguments rejected by the Supreme Court in U.S. v Morrison . Surely Congress’s can’t regulate any crime anywhere in the world just because it upsets things. The commerce argument is even weaker here: if someone moves out of their state because of violence against women, they presumably move to another U.S. state. But if they move from Somalia, they do not presumably move to the U.S.

The connection to U.S. commerce would have to be shown. In the one prior universal jurisdiction “material support” case, Ahmed , the government claimed in the indictment, without providing specifics, that it could show real links to commerce. The district judge accepted that as sufficient for starters [in an unpublished opinion, 2011 WL 5041456]. The present indictment says nothing about foreign commerce.

The Supreme Court has said little about the scope of the power. As a textual matter, the foreign commerce power does not allow Congress to simply regulate “foreign commerce,” but rather that part of it which is “with” the United States. It is not clear that the same kind of “foot-bone-is-connected to the ankle bone” games can be played with the Foreign Commerce clause as with the domestic on. Andrew Colangelo, in the leading article on the subject, argues that it requires a substantial U.S. nexus. Indeed, without that, the Constitution would have incorporated broad universal jurisdiction, without anyone knowing about it until now!

If the Foreign Commerce clause is enough here, it would mean several recent federal cases finding no universal jurisdiction over drug trafficking and piracy conspiracy case were wrongly decided: surely those things are linked to foreign commerce in the most general sense.

One can imagine a broader argument that the terrorist group designation is a regulation of foreign commerce, and the material support statute “necessary and proper” to that. And that would turn on the particular group and executive finding...

Some have suggested that the Foreign Commerce Clause should, on the contrary, be broader than the Interstate clause, because there is no background principle of federalism to protect. I see the point, but am hesitant for two reasons.

First, Congress is a government of limited and delegated powers. It can only have powers to regulate conduct anywhere in the world with no demostrable nexus if these were either preexisting powers of states, or somehow a natural emergent power of national sovereignty. I think neither is the case. The latter point can be seen from the fact that no other country exercises universal jurisdiction over this kind of thing...

Second, while Foreign Commerce authority is not concurrent with states, it is shared with other countries, whose existence and sovereign competency the Framers were aware of. Consider Hamilton’s discussion of the Foreign Commerce power (Camillus XXXVI):

Congress (to pursue still the case of regulating trade) may regulate, by law, our own trade and that which foreigners come to carry on with us; but they cannot regulate the trade which we may go to carry on in foreign countries; they can give to us no rights, no privileges, there. This must depend on the will and regulations of those countries; and, consequently, it is the province of the power of treaty to establish the rules of commercial intercourse between foreign nations and the United States. The
legislative may regulate our own trade, but treaty only can regulate the national trade between our own and another country

My review of Michael Greve’s important new book, The Upside-Down Constitution is about to be published in Constitutional Commentary, and is now available on SSRN. Here is the abstract:

Michael Greve’s The Upside-Down Constitution is one of the most important works on constitutional federalism in years. It is the best exposition to date of the idea that the American Constitution establishes a federal system primarily devoted to promoting competition between state governments. It is also probably the most comprehensive critique of the traditional view that federalism is really about promoting the interests of state governments. As Greve recognizes, state governments rarely want to compete, often preferring to establish cartels among themselves.

Greve praises the original Constitution for creating an effective system of interstate competition and the nineteenth and early twentieth century Supreme Court for enforcing it. But he warns that the system has broken down over the last eighty years, replacing competition with cartels and what he considers to be dysfunctional empowerment of state governments. He argues that American federalism has now reached a crisis point from which we must either restore some of its earlier, more competitive, structure, or face a decline similar to those that have beset several other federal systems

In Part I, I describe Greve’s argument, focusing especially on the ways in which it enhances our understanding of the history of constitutional federalism. Part II addresses a potential internal contradiction in Greve’s position. While he emphasizes the need for the judiciary to enforce a competitive regime and recognizes that the federal government often has incentives to promote cartelization, he endorses a broad interpretation of congressional authority under the Commerce Clause and the Spending Clause which effectively gives Congress a blank check to suppress competition in ways he deplores.

Part III briefly considers a second tension in Greve’s analysis. Greve pins his hopes on originalism as the best possible way to restore a competitive federalist Constitution. While he argues that the original Constitution establishes a competitive structure, he also recognizes that the Founders paid little attention to interstate mobility and competition. These two positions are not completely irreconcilable. But they are more difficult to square than Greve sometimes allows.

NOTE: The editors of Constitutional Commentary invited me to review this book before Michael Greve accepted a position at George Mason University School of Law, where I also teach. When Greve accepted GMU’s offer, I informed the editors of this possible conflict of interest. We agreed that I could proceed with the review, so long as we included a note addressing the issue.

At the Law and Liberty Blog, my George Mason colleague Michael Greve has posted an insightful commentary on my forthcoming article analyzing the proper meaning of “proper.” Michael agrees with my conclusion that the individual health insurance mandate was improper, but takes issue with some of my reasoning:

My colleague Ilya Somin has penned a good piece on “The Individual Mandate and the Proper Meaning of ‘Proper’,” arguing that Chief Justice John Roberts’ opinion in NFIB v. Sebelius has “moved our jurisprudence closer to the proper meaning of proper.” Moreover, the Chief was right to conclude that the notorious individual mandate flunks a proper “proper” test. I agree with that assessment and much else in Ilya’s instructive article, though perhaps for somewhat different reasons.

The basic proposition is that “proper” in the Necessary and Proper Clause must have some independent meaning (independent, that is, from “necessary”). A “minimalistic” reading of “proper,” Ilya writes, holds that Congress may not pass laws that imply a limitless understanding of congressional powers, or which would render large parts of the Constitution redundant. (In other words, a constitutional interpretation that can’t handle broccoli must be wrong.) A broader reading, advocated by a scholars’ amicus brief in NFIB v. Sebelius... and suggested twice in Chief Justice Roberts’ opinion, picks up John Marshall’s M’Culloch suggestion that the Necessary and Proper Clause encompasses “incidental” powers but not “great substantive and independent” ones. A power to impose mandates (the argument concludes) flunks that test.

I’m not entirely happy with either formulation. The “minimalistic” reading simply restates the principle of limited and enumerated powers, which would control (and since at least Gibbons v. Ogden has controlled) even without “proper.” And the broader reading rests on a distinction that to my mind was suspect the day it was announced. (Nobody ever incorporates something for its own sake, the Chief wrote in M’Culloch; the power didn’t have to be enumerated because it is incidental. But nobody ever taxes for the heck of it, either; yet that power is enumerated.)

I’m not persuaded by Michael’s critique of either the minimalistic or the broader interpretation of “proper.” If the Necessary and Proper Clause were a mere “Necessary Clause” with the word “proper” omitted, Congress might well have virtually unlimited power, at least if necessary is defined broadly as anything that is in some way “useful” or “convenient” for executing some other enumerated power (which is the definition adopted by the Supreme Court in the famous 1819 case of McCulloch v. Maryland). As I explain in my article, virtually any mandate or regulation of any kind could be justified on that basis. Even the famous broccoli mandate might be a convenient way of regulating the interstate market in food, and thereby permissible under a combination of the “Necessary Clause” and Congress’ power to regulate interstate commerce. This is not an inevitable interpretation of “necessary.” But it’s plausible enough that the word “proper” was deliberately inserted into the Constitution in part to prevent courts from adopting this sort of view.

Michael’s critique of the broader view of “proper” advocated by Chief Justice Roberts and the scholars’ amicus brief also has flaws. The distinction between an incidental power and a “great substantive and independent one” is not based on the idea that the latter exists “for its own sake,” while the former is purely instrumental. All powers are essentially instrumental. Rather, the distinction is between powers that are relatively minor compared to the greater power they help to execute and those that are major grants of power in their own right. To put it more crudely, the argument is that the Necessary and Proper Clause can be used to give a dog a tail to wag, but not to create a dog where the other enumerated powers only create a tail. The power to tax is a massive power in its own right, and therefore could not have been created by the Necessary and Proper Clause if it were not established on its own. Taxation is a dog, not a tail.

As I explain in my article, the minimalistic interpretation of “proper” is potentially compatible with the incidental power interpretation. The former holds that “proper” at the very least excludes assertions of power that give Congress unconstrained authority or render other congressional powers redundant. But it doesn’t necessarily require us to conclude that those are the only assertions of federal power that might be improper.

By the way, the scholars’ amicus brief Michael refers to was written by co-blogger David Kopel, on behalf of three leading Necessary and Proper Clause scholars. The brief lays out their theory much more fully than I can do here, or even in my article.

Michael’s post also advances his own interpretation of “proper”:

Necessary” is a means-ends test: legislation must be necessary (convenient, useful) to a constitutionally provided-for end. “Proper,” in contrast, can’t be a means-ends test, at least not exclusively: if it were, it would be swallowed by ”necessary” and judicial deference canons. It’s best read (to my mind) as shorthand for the proposition (Marshall’s proposition) that legislation must be consistent with the letter and the spirit of the Constitution—not its ghost but its structural principles, including principles that (unlike the principle of limited and enumerated powers) aren’t immediately obvious.

The principle here at issue is the distinction between a prohibition and an affirmative command. That distinction is better than the (admittedly, related) distinction between regulating “activity” (okay) and “inactivity” (not okay) because the Constitution itself makes it: explicit powers to command (like the Militia Clauses and, by conventional—though not unassailable—understanding the Supremacy Clause, as to state judges) are exceedingly few and, moreover, institutionally cabined. Whence we (or at least I) infer that unless the power to command is provided for (textually or by unmistakable inference, as with military conscription) it’s excluded.

This view isn’t necessarily incompatible with my minimalistic interpretation, for the same reason that the incidental power theory isn’t. But I have my doubts about it. It’s true that a general power to issue any commands of any kind would be “improper.” On the other hand, I’m not sure that the power to issue commands is always precluded unless explicitly stated or unmistakably implied. Much depends on the wording of the particular Clause in question. In the case of the power to regulate interstate commerce, the power to issue commands is, I think, barred, because “commerce” implies that Congress many only use it to regulate some kind of preexisting interstate economic activity. But not all grants of power work that way. For example, Congress’ power to raise and support armies is a power to create an army where none existed previously, and therefore implies a power to issue commands. The same goes for Congress’ power to coin money, for example, which implies a power to create money where none previously existed. But it may be that all such cases fall within Michael’s category of situations where a power to issue commands is created by “unmistakable inference.” If so, the difference between our two positions may be relatively small.

My forthcoming book chapter, “The Individual Mandate and the Proper Meaning of ‘Proper,’” is now available on SSRN. It is forthcoming in The Health Care Cases, edited by Gillian Metzger, Trevor Morrison, and Nathaniel Persily, eds. (Oxford University Press). The book is a collection of essays on NFIB v. Sebelius, the case where the Court addressed the constitutionality of the Obama health care bill. Among the many other contributors are Jack Balkin, Erwin Chemerinsky, Richard Epstein, Charles Fried, Jamal Greene, Linda Greenhouse, Andrew Koppelman, Neil Siegel, Larry Solum, and VC co-bloggers Jonathan Adler and Randy Barnett.

Here is the abstract for my contribution:

The Necessary and Proper Clause of the Constitution has often been at the center of debates over the limits of federal power. But in the first 220 years of its history, the Supreme Court never gave us anything approaching a comprehensive analysis of what it means for a law to be “proper.” The Court’s recent decision on the constitutionality of the Affordable Care Act individual health insurance mandate in NFIB v. Sebelius helps fill this gap. It moves constitutional jurisprudence closer to the proper meaning of proper.

In this article, I explain why Chief Justice John Roberts’ key swing-vote opinion was right to conclude that the individual health insurance mandate requiring most Americans to purchase government-approved health insurance is outside the scope of Congress’ power under the Necessary and Proper Clause becasue it is not “proper.”

Part I shows that the Necessary and Proper Clause compels laws authorized by the Clause to meet two separate requirements: necessity and propriety. Both the original meaning of the Clause and Supreme Court precedent support this interpretation. The Necessary and Proper Clause cannot be reduced to a mere “Necessary Clause” that renders the word “proper” meaningless.

Part II argues that the individual health insurance mandate is improper because upholding it under the Clause would have given Congress virtually unlimited power to impose other mandates, and also render large parts of the rest of Article I redundant. This is consistent with a relatively minimalistic reading of the word “proper.” I consider and reject various attempts to prove that the health insurance mandate is a special case different from other mandates. I also briefly discuss a broader interpretation of the Clause: that the power to impose mandates on the general population is not a power “incidental” to Congress’ other enumerated powers, but rather a major independent power of its own. Both the minimalistic and broad interpretations of “proper” lead to the same conclusion in the mandate case.

Finally, Part III briefly discusses the possible future implications of Roberts’ interpretation of propriety. Here, much depends on the future composition of the Supreme Court and other contingent factors. There is also an ongoing debate over whether the Chief Justice’s Necessary and Proper reasoning is mere dictum that does not bind lower courts. But it is possible that the ruling will have a noteworthy impact in curtailing future federal mandates. Future courts might also build on the NFIB’s interpretation of “proper” as a tool for incrementally strengthening limits on federal power.

Co-blogger Jonathan Adler recently posted on United States v. Elk Shoulder, a recent Ninth Circuit decision which may be the first court of appeals case interepreting the Supreme Court’s individual health insurance mandate decision in NFIB v. Sebelius.

When NFIB came down, some commentators argued that Chief Justice Roberts’ conclusion that the mandate was not authorized by the Commerce Clause and Necessary and Proper Clause was mere dictum, and therefore not binding precedent for the lower courts. I criticized that view here. It’s worth noting that the Ninth Circuit just treated the Roberts’ Necessary and Proper reasoning from NFIB as if it were binding. In upholding the Sex Offender Registration and Notification Act sex offfender registration requirement, they relied heavily on NFIB’s interpretation of the Necessary and Proper Clause:

[B]ecause SORNA registration requirements are imposed only on individuals who were convicted of sexual offenses, it regulates only “those who by some preexisting activity bring themselves within the sphere of federal regulation.” NFIB, 132 S.
Ct. at 2592....

Although the Necessary and Proper Clause provides no justification for laws effecting “a substantial expansion of federal
authority,” NFIB, 130 S. Ct. at 2592, SORNA’s registration requirement is “narrow in scope” and “incidental to the exercise” of enumerated powers. Id. at 2592 (opinion of C.J. Roberts)...

The conclusions that the Necessary and Proper Clause does not authorize legislation that doesn’t regulate a “preexisting activity” or that effects “a substantial expansion of federal authority” are central elements of Roberts’ analysis of the Clause in NFIB. And in Elk Shoulder, the Ninth Circuit seems to be treating them as binding precedent. It’s theoretically possible to interpret these passages as merely citations of persuasive authority that happen to accord with the Elk Shoulder panel’s own views of the Necessary and Proper Clause. But the decision seems to be citing NFIB in exactly the same way as it cites other Supreme Court precedent, and without any hint that it isn’t binding.

Although two of the three members of the Ninth Circuit panel are conservative Republican appointees, the third – Wallace Tashima – is a liberal Democrat appointed to the district bench by Jimmy Carter and the Ninth Circuit by Bill Clinton. I doubt that Judge Tashima actually agrees with Roberts’ Necessary and Proper reasoning in NFIB. Very few liberal jurists do. If he nonetheless went along with the Ninth Circuit’s adoption of it in this case, it is probably because he sees it as binding precedent, not merely persuasive dictum.

Obviously, this does not mean that other circuit courts will also treat this part of NFIB as binding. Nor does it prove that defenders of the dictum theory are necessarily wrong. They can simply claim that the Ninth Circuit made a mistake here. But it’s an interesting development nonetheless.

UPDATE: It’s also worth noting that three district courts have decided whether or not to treat Roberts’ Commerce Clause and Necessary and Proper Clause rulings in NFIB as binding. Two have treated it as a valid precedent, while one considers it to be dictum. See United States v. Williams, 2012 WL 3242043, at *3 (S.D.Fla. Aug.7, 2012) (stating that Chief Justice Roberts was “writing for the Court” when discussing Congress’s commerce power) ; United States v. Moore, 2012 WL 3780343, at *3 (E.D.Wash. Aug.31, 2012) (treating it as a binding concurring opinion under Marks v. United States, 430 U.S. 188 (1977)); and United States v. Spann, 2012 WL 4341799 at*3 (N.D. Tex. Sept. 24, 2012) (concluding that NFIB’s Commerce Clause analysis was dictum).

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the same effect in deterring any future thoughts of congressionally-imposed mandates. (Putting aside the obvious exception for mandates that have a solid basis in the constitutional text, such as jury service.)

The enactment of the mandate has also significantly increased the probability that the next Supreme Court appointments will be made by a President and confirmed by a Senate which denounces the mandate as unconstitutional, and that the new Justices will be the kind who are inclined to vigorously enforce the many strong constitutional limits on congressional over-reaching which are articulated in NFIB v. Sebelius.

I would have preferred that the mandate had met its end yesterday morning, but the fact that the mandate will have to be finished off by the People in November and their elected officials in January may lead to even better long-term results for advocates of a constitutionally limited federal government.

Yesterday I interviewed Ilya Somin about the NFIB decision, particularly the portion involving the Necessary and Proper Clause. Here’s the link for the 28 minute episode on iVoices.org. As Ilya details, the decision strongly restates and applies a principle from McCulloch v. Maryland: that whether a law is “proper” is an entirely different question from whether it is “necessary.” And CJ Roberts’ opinion is the first in Supreme Court history to find that a law which is “necessary” is not proper. Ilya’s amicus brief was the key brief on the necessity of making separate inquiries into “necessary” and “proper.”

That’s not the only way in which the Roberts opinion brings interpretation of the Necessary and Proper Clause back to the proper, originalist understanding which was explicated in McCulloch. The Roberts opinion explains that the NP Clause grants Congress no additional powers; the clause merely expresses the default legal rule that when an enumerated power is granted, the grant also includes lesser powers which are “incidental” to the enumerated power. In McCulloch, Chief Justice Marshall found it necessary to spend many pages applying the doctrine of incidental powers before he could reach the other issues about the constitutionality of the Second Bank of the United States.

The Roberts opinion is one of many, many post-McCulloch opinions to utilize the doctrine of incidental powers, but it is the first opinion to hold that a particular law is not valid because it is not an incident of an enumerated power. The originalist, Marshallian understanding of the doctrine of incidental powers was the subject of the amicus brief which Rob Natelson, Gary Lawson, and I wrote. The brief is based on the book The Origins of the Necessary and Proper Clause, published by Cambridge University in 2010, and co-authored by Natelson, Lawson, Geoffrey P. Miller and Guy I. Seidman.

The brief devotes much attention to the newspaper essays which John Marshall wrote defending the McCulloch decision. These essays were collected in the book John Marshall’s Defense of McCulloch v. Maryland, published in 1969 and edited by Gerald Gunther. The Roberts opinion is the first in Supreme Court history to cite this book, and the first to cite Marshall’s essays.

The Roberts opinion joins McCulloch v. Maryland as an essential case in any law school textbook that covers the Necessary and Proper Clause. While the Roberts opinion on the Commerce Clause and the Spending Clause brings current interpretation of those clauses closer to the original understanding, current interpretation remains a long way from original meaning. For the Necessary and Proper Clause, however, the Roberts opinion goes all the way.  As of yesterday, Supreme Court doctrine about the Necessary and Proper Clause has fully returned to 1791/1819. The originalist victory is complete.

For some background on the doctrine of incidental powers, one starting point is the Lawson/Kopel article Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 Yale Law Journal Online 267 (2011). A follow-up article, Bad News for John Marshall, 121 Yale Law Journal Online 529 (2012), replies to Andrew Koppelman’s warning that following McCulloch‘s originalist doctrine will cause national catastrophe. It looks like we’ll find out if he’s right. If you’re assuming that he is, and thus time is short before The End, a condensed version of our Yale article is available on Legal Workshop.

As I pointed out yesterday, five justices, including Chief Justice Roberts, accepted all the plaintiffs’ major arguments against the individual mandate with respect to the Commerce and Necessary and Proper Clauses. But how much does that conclusion actually matter? My tentative view is that it will have little immediate effect, but may well be significant in the future.

One possible reason to dismiss the importance of the Court’s treatment of these issues is that it might have been mere dictum. After all, the Court upheld the mandate based on the Tax Clause, so the other two issues were not essential to the outcome. However, as co-blogger Jonathan Adler points out, Chief Justice Roberts’ controlling opinion explicitly holds that this analysis was essential to the outcome:

[T]hese analyses form an essential predicate to his ultimate conclusion that the mandate could be upheld as a tax. As the entire Court accepts, the most natural reading of the minimum coverage provision is as an economic mandate adopted pursuant to the Commerce Clause. It is only after rejecting the possibility that the mandate could be justified in this manner that the Chief returns to the text to see if it is susceptible to an alternative construction. Thus, the only reason the Chief Justice even considers whether the mandate could be considered a tax, the statutory text notwithstanding, is because of his prior conclusion on the Commerce and Necessary and Proper Clauses. Thus this decision provides five firm votes for meaningful limits on the most expansive of Congress’ powers.

One can still argue that the Commerce and Necessary and Proper analysis was dictum on the grounds that it was not seen as essential by the other four justices who voted to uphold the mandate. But to the extent that the Chief Justice’s opinion is controlling, as that of the majority justice who concurred on “the narrowest ground,” it is his position that matters. Moreover, as a practical matter, lower courts are unlikely to simply ignore a position that was forcefully endorsed by five Supreme Court justices in a major case.

Even if the Chief Justice’s Commerce and Necessary and Proper analysis does bind lower courts, it’s possible it will not have much effect in practice. As Roberts emphasizes, the mandate exceeded the scope of those powers because it sought to regulate inactivity. No other current federal law does the same thing on the basis of those two clauses. But, as I explained in this article, the power to impose purchase mandates is one that Congress would have strong incentives to abuse in the future. So even if this case’s CC/NP rulings will not endanger any present laws, they could cut off future mandates.

Obviously, Congress can circumvent the limits on Commerce Clause mandates by trying to structure future mandates on inactivity as taxes, utilizing Roberts’ reasoning on why the health insurance mandate is a tax as a guide. However, the jerry-rigged nature of Roberts’ analysis and the possibility that it was developed primarily to avoid having to strike down this particular statute makes it possible that the the Court will back off at least some of it in future cases. Even if it does not, having to use the tax power at least prevents Congress from punishing mandate violators with prison time instead of fines.

Moreover, the doctrinal impact of this decision potentially goes beyond mandates in one important sense. Chief Justice Roberts and (less clearly) the four dissenting justices all reaffirmed the proposition that laws authorized by the Necessary and Proper Clause must be “proper” as well as “necessary.” As Roberts put it, “Even if the individual mandate is ‘necessary’ to the Act’s insurance reforms, such an expansion of federal power is not a ‘proper’ means for making those reforms effective.” This was the central theme of the amicus brief I wrote for the Washington Legal Foundation. Roberts did not give anything approaching a comprehensive definition of “proper.” But his emphasis on the idea that it imposes independent limitations on congressional power could well lead to future litigation on the subject.

The greatest potential significance of the Court’s Commerce and Necessary and Proper ruling, however, lies less in the doctrinal details and more in the fact that five justices were willing to endorse a strong substantive limit on these powers. That is both symbolically significant and a potential signal for future cases.

Obviously, whether or not Roberts’ analysis will really have an effect on future cases depends in large part on future Supreme Court appointments and the political situation. If, for example, Barack Obama gets reelected in November and replaces one or more conservative Supreme Court justices with liberals, yesterday’s Commerce and Necessary and Proper ruling will likely be ignored or overruled. But for reasons David Bernstein emphasizes, it’s also possible that things will move in the opposite direction. Some liberal observers fear such a result. It is still too early to say whether this part of the individual mandate decision will turn out to be an outlier or a sign of things to come.

SCOTUSblog has just posted a detailed analysis of today’s decision that I did for them. It’s much more thorough than anything I have been able to put up elsewhere. Here is an excerpt:

Today’s 5-4 Supreme Court decision upholding the individual health insurance mandate is an extremely frustrating result for those of us who argued that the mandate is unconstitutional. One might even call it taxing. The plaintiffs came about as close as one can to winning a major constitutional case without actually winning it. It is the legal equivalent of losing the World Series after leading in the bottom of the ninth inning in the seventh game. It is not a happy day for supporters of limited government.

Yet the Court also offers us a measure of hope and vindication. A majority of the justices rejected claims that the mandate is authorized by the Commerce Clause and Necessary and Proper Clause. That has little immediate impact, but bodes well for the future. The numerous pundits who claimed that this case was a slam dunk for the federal government turned out to be spectacularly wrong. The struggle over the constitutional limits on federal power is far from over....

In his discussion of the Commerce Clause, Roberts ruled that the Constitution denies Congress the power to “bring countless decisions an individual could potentially make within the scope of federal regulation and … empower Congress to make those decisions for him.” Yet, having closed the front door of the Commerce Clause, the Chief Justice has now “empowered” Congress to make those same decisions for us through the tax power...

Today’s decision is unlikely to be the last word on the constitutional limits of federal power. As the close 5-4 division in the Court shows, the justices remain deeply divided on federalism issues.... No one can any longer say that the case against the mandate was a sure loser that could only be endorsed by fringe extremists or people ignorant of constitutional law.

Defenders of extremely broad federal power won an important battle today. But the war will continue.

Held at Denver University, Sturm College of Law, on April 11. Debaters were University of Colorado Prof. Scott Moss and me. Moderator is DU Prof. Ann Scales. WMV, via ftp.

In this recent Atlantic article, Professor Larry Lessig argues that, if the Supreme Court strikes down the individual mandate, it could only be the result of politics, given its previous decisions rejecting “liberal” challenges to congressional legislation:

The Court has been asked to limit the scope of Congress’s authority in a wide range of cases. Some of these have been for liberal causes, some for conservative. I was lead counsel in a case that asked the Court to apply its newly announced will to enforce the limits on enumerated powers in the context of the copyright clause — viewed by many as a “liberal cause.” The Court said no, twice. The same with federal regulation of medical marijuana, which, the (said to be liberal) 9th Circuit had ruled, violated the limits on Congress’s power. The Supreme Court — including Scalia — said it didn’t.

So with these liberal cases, limits were not enforced. But when the cause is conservative, the willingness to limit Congress’ power comes alive. The Court has struck laws regulating guns — twice. It has struck a law that regulated violence against women. And if Obamacare falls, it will have struck down the most important social legislation advanced by the Democratic Party in a generation.

With that score sheet, I fear the cynics win.

I don’t doubt that the Supreme Court is often influenced by political factors, including in its federalism cases. But Lessig’s argument is greatly overstated. He ignores the fact that many of the votes upholding federal laws against “liberal” challenges in the medical marijuana and copyright cases actually came from the Court’s liberal justices. In Gonzales v. Raich, a decision I have been very critical of, four of the six votes in the majority came from the liberal justices. The five conservatives actually voted 3-2 to strike down the law which allowed the federal government to ban the possession of medical marijuana that had never crossed state lines or been sold in any market. If it were up to the Court’s conservatives, the “liberal” challenge to the medical marijuana ban would have succeeded.

The underlying dynamic here is that the Court’s liberal wing has consistently opposed virtually any limits on Congress’ powers under the Commerce Clause, the Necessary and Proper Clause, and the Tenth Amendment over the last twenty years. As a result, such limits are only enforced on the rare occasions when all five conservative justices are willing to do so. We can and should criticize the conservatives for enforcing those limits unevenly and for developing a federalism jurisprudence that is far from a model of clarity. But the liberal justices also deserve considerable blame for essentially treating the Commerce Clause as a blank check for unconstrained Congressional power.

In Eldred v. Ashcroft, the first of the copyright cases Lessig complains about, the majority opinion was written by liberal Justice Ruth Bader Ginsburg, though two of the other three liberal justices did dissent. In Golan v. Holder, a recent extension of Eldred, there were only two dissenters – one of them the conservative justice Samuel Alito.

I actually doubt that the copyright cases are fairly characterized as a liberal vs. conservative issue. Many liberal Democratic members of Congress voted for the broad extensions of copyright that these lawsuits challenged (as also did many Republicans). Among their critics were many libertarians and pro-free market conservatives. This is an issue that splits both liberals and conservatives internally. Libertarians are internally divided on intellectual property issues as well, though my impression is that more of them oppose broad extensions of copyright than support it.

Finally, Lessig’s argument that Justice Scalia cannot vote to uphold the individual mandate without contradicting his concurring opinion in Raich ignores the fact that that opinion addresses only the issue of what qualifies as “necessary” under the Necessary and Proper Clause, while the main argument against the mandate turns on the meaning of “proper.” This is the point of the amicus brief I wrote on behalf of the Washington Legal Foundation and a group of constitutional law scholars, which explains why the mandate is improper even if it is “necessary.” As the brief explains (pp. 13-14, 28-29), Scalia has written several opinions emphasizing that necessity and propriety are separate and distinct requirements, both of which must be met in order for federal legislation to be authorized by the Necessary and Proper Clause. He made that point in the Raich concurrence itself. In the oral argument on the individual mandate case, Scalia emphasized the same issue in his questioning of Solicitor General Donald Verrilli. For some fifteen years now, Scalia has focused on the issue of propriety more than any other member of the Court.

I am no fan of Scalia’s Raich concurrence. But he could easily write an opinion striking down the mandate without contradicting anything he said in that earlier case.

NOTE: The arguments of this post overlap slightly with co-blogger Randy Barnett’s earlier critique of Lessig’s article. I have chosen to leave the overlap in place rather than cut out important logical links in my own argument.