Monday, December 13, 2010

The Necessary and Proper Clause

Judge Hudson's decision today held that the ACA's minimum coverage provision exceeds (1) Congress's commerce power, and (2) its commerce power as augmented by the Necessary and Proper Clause. His analysis of this second point, though, was rather cursory, occupying only one paragraph (on p. 24 of the opinion).

Here is what Judge Hudson says, in full:

"Because an individual's personal decision to purchase--or decline to purchase--health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary. This clause grants Congress broad authority to pass laws in furtherance of its constitutionally-enumerated powers. This authority may only be constitutionally deployed when tethered to a lawful exercise of an enumerated power. As Chief Justice Marshall noted in McCulloch, it must be within 'the letter and spirit of the constitution.' The Minimum Essential Coverage Provision is neither within the letter nor the spirit of the Constitution. Therefore, the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce." (citations omitted)

It is not entirely clear what this means. On one reading, it seems to say that, if Congress cannot regulate the conduct directly with its commerce power, then it cannot reach it with the Necessary and Proper Clause, either. But that would seem to render the Necessary and Proper Clause surplusage. One would think that there are at least some instances (as Justice Scalia discusses in his Raich concurrence) that the Necessary and Proper Clause makes a difference. Comstock would seem to be one, for instance.

Another understanding is that Judge Hudson's categorical rule--that Congress can never regulate inactivity--applies just as much to the commerce power as augmented by the Necessary and Proper Clause as it does to the commerce power standing alone. This makes more sense structurally. But if this articulates Judge Hudson's view, it is not particularly well spelled out in the opinion.

This may be much ado about nothing. But it also might be quite important down the road. For the United States's strongest argument in defense of the individual mandate is that, even if one  characterizes the regulated conduct as "inactivity," its regulation is "appropriate" (that is, necessary and proper) to the effectuation of the ACA's broader regulation of the health insurance market--regulation that, when taken as a whole, is plainly within the commerce power.

UPDATE: Professor Orin Kerr makes a similar point at the Volokh Conspiriacy, which you can read here. Professor Kerr reads Judge Hudson as making the first of these two moves. And I wholly agree that, if that is what he meant, it really cannot be right. A fundamental point that Marshall makes in McCulloch--regardless of how one otherwise understands that opinion--is that the Necessary and Proper Clause expands Congress's legislative powers.