Like my co-conspirators, I believe the Necessary & Proper Clause provides the strongest basis for the constitutionality of the individual mandate. I“m inclined to agree with Ilya nad Randy, rather than Orin, but I believe it’s a close call.
The constitutional argument, as has been rehearsed in this space before, is that that mandate is a “necessary and proper” means of facilitating some of the regulations of health insurance markets contained in the recent health care reform legislation that are themselves constitutional exercises of the commerce power. But is the individual mandate, as enacted, really a “necessary” part of health care reform? I am not so sure.
An individual mandate is intended to mitigate the economic effects of other regulatory measures contained in the health care reform legislation, such as the prohibition on insurers excluding coverage for preexisting conditions, and prevent insurance premium increases due to adverse selection. The fear is that healthy people will rationally decline to purchase coverage until they are sick, and that this will cause health insurance premiums to increase, which will cause more health people to opt out, and so on. By requiring all Americans to purchase health coverage, the mandate prevents adverse selection and keeps healthier (and cheaper to ensure) people in the insurance pools. At least that is how it works in the theory.
A sufficiently stringent individual mandate could well eliminate the adverse selection problem, but that is not what Congress enacted. Instead, Congress enacted a mandate that does not solve the adverse selection problem. For many Americans, the penalty for failing to purchase health insurance will remain substantially below the cost of purchasing a federally approved health insurance policy. This is one of the reasons no one expects health care reform to achieve universal coverage. This is also why the individual mandate is expected to generate substantial revenue from the imposition of the penalty — which is convenient for those who wish to argue that the mandate is a proper exercise of the taxing power. This is also a reason why the health care reform legislation will not be as effective at controlling health insurance costs as some hope.
What this means is that it is hard to argue that the individual mandate Congress adopted is really “necessary” to the success of health care reform. If Congress believed eliminating adverse selection were absolutely essential to the success of reform, it could have adopted a tougher mandate. It did not. Instead it adopted a mandate which helps on the margin, but does not eliminate the economic consequences of other measures, such as the bar on excluding preexisting commissions, and adverse selection will continue.
Does this matter in the current litigation? The Necessary & Proper Clause has rarely (if ever) been interpreted by federal courts to limit Congress only to those measures which are truly necessary to carry into execution other powers. So even if the mandate is not “necessary,” it may still be “necessary and proper,” and thus constitutional. But if the mandate is not truly necessary for health care reform to work — that is, if (as enacted) it cannot hope to fix the problem it was ostensibly adopted to fix — I think that the argument for its consitutionality is, on the margin, somewhat weaker.
Jon Shields says:
“For many Americans, the penalty for failing to purchase health insurance will remain substantially below the cost of purchasing a federally approved health insurance policy.”
This does not necessarily mean that people still won’t get insurance. If they pay the penalty, they get nothing in return. Whereas if they get insurance, they get insurance in return.
Regardless, I find it hard to believe that this would be unconstitutional at a low value, but constitutional at a higher value. I also find it hard to believe that any court would get into the business of modeling how many people will get insurance because of the mandate at various values (like the CBO did). They do not have the institutional competence to do so. They will judge the constitutionality of the mandate, and leave it to Congress to set the penalty.
Using this logic, could many other laws relying on the necessary and proper clause be ruled unconstitutional if courts view the penalties as too weak for enforcement purposes?
October 14, 2010, 11:14 pmOrin Kerr says:
Jonathan,
Do you have any citations in support of your view, or do you agree with Ilya that there are no relevant precedents on the meaning of “necessary” because the Supreme Court just hasn’t gotten around to looking into that in the last quarter of a millennium of caselaw?
[UPDATE: Oops, ignore the part about Ilya, as Ilya takes the view that there are no cases on “proper” but acknowledges that there are in fact some cases on “necessary,” although Ilya does not agree with them. My apologies for commenting in haste...]
October 14, 2010, 11:15 pmCrazyTrain says:
Although I appreciate Orin’s sarcasm, the precedent you must deal with is McCulloch v. Maryland which assuredly does NOT interpret the Necessary & Proper Clause in the manner Prof. Adler would interpret it. If you want to argue that John Marshall was wrong in McCulloch, then do so. But don’t pretend that the N&P clause has not been interpreted since the beginning of the Republic in a much different way than Prof. Adler would interpret it in this post.
October 14, 2010, 11:20 pmIlya Somin says:
do you agree with Ilya that there are no relevant precedents on the meaning of “necessary”
I think I made it extremely clear in several prior posts that I think there are many precedents on the meaning of “necessary.” I just don’t think there is much on the meaning of “proper,” which is a distinct issue. A law can be “necessary” without being “proper,” and vice versa. Jonathan’s post also acknowledges that existing precedent defines “necessary” broadly. I suspect, however, that he — like me — believes that that precedent is flawed.
October 14, 2010, 11:21 pmOrin Kerr says:
Ack, Ilya, you’re right — you thought there were no cases on “proper,” although you ackowledged the case law did in fact interpret “necessary.” My apologies, just an oversight on my part from commenting too quickly...
October 14, 2010, 11:24 pmSteve says:
Not only is it difficult to imagine a court saying “this penalty isn’t tough enough to be constitutional,” it’s difficult to imagine a court saying “this law isn’t constitutional because it fails to prevent people from violating it.”
October 14, 2010, 11:27 pmJ. Aldridge says:
Would it be Necessary & Proper for Congress to issue a health care mandate for citizens of Mexico since they can claim to have the power to regulate commerce with foreign nations? If such an mandate would be unconstitutional, the question is why and how is it different with independent states or Indian tribes?
October 14, 2010, 11:33 pmRicardo says:
I agree. What is the precedent for a court saying a regulation was not necessary and proper because the penalties were not harsh enough to change people’s behavior? The court is competent to judge matters of law rather than to examine different highly speculative models of consumer behavior to predict how many will purchase health insurance given a penalty of X.
Prof. Adler may well be right that the penalty is much too low to lead to universal insurance. However, I don’t see any evidence that the penalty was enacted under false pretenses — the actual goal appears to be to lead to universal insurance. If it is the case that Congress screwed up and got the penalty wrong, that seems to be a matter for Congress rather than the courts to fix. I don’t think even Scalia could be convinced to buy this argument — it seems to me he has always been willing to defer to Congress on technocratic matters.
October 14, 2010, 11:44 pmGuy says:
Necessary doesn’t mean “absolutely essential”, it means “needed”.
It’s the same use as in “you are authorized to use as much force as necessary”, or “you may use the bathroom if necessary”. You know, expedient, convenient, needed. This was settled in McCulloch and there is no narrow-tailoring requirement.
October 15, 2010, 12:03 amThe Liberal says:
Adler,
You apparently are not familiar with basic Supreme Court precedent if you think your point about “necessity” has any relevance at all:
From McCulloch v. Maryland:
“If a certain means to carry into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance.”
October 15, 2010, 12:12 amThe Liberal says:
Ilya,
Is it your view that McCulloch v. Maryland was wrongly decided?
October 15, 2010, 12:14 amThe Liberal says:
Oh, btw, McCulloch gives us a clue about the meaning of proper. Something is proper if it is “not prohibited by the Constitution.”
So, it would not be proper for Congress to, for example, grant titles of nobility based on the perceived necessity of doing so to better regulate the armed forces. That is, the purpose of the word “proper” is to prevent attempts by Congress to avoid that which is explicitly prohibited by the Constitution using the necessary and proper clause.
Notice that here Marshall is endeavoring to provide objective meaning to the word “proper” rather than turning it into an unlimited license for judicial discretion. It would defeat the purpose of giving Congress broad discretion into the “degree of necessity” if the Court had a huge amount of discretion to decide what was “proper.”
October 15, 2010, 12:22 amAllan Walstad says:
It’s a close call if you accept all the court precedents as legitimate.
Doesn’t that call into question the legitimacy or propriety of previous jurisprudence?
Huh?? How can it be necessary and proper if it’s not necessary?
October 15, 2010, 12:29 ambacchys says:
The Tenth Amendment seems to prohibit Congress from more than what is expressly written.
The individual mandate is an exercise of a police power, and its connection to an enumerated power is rather tenuous. This is Wickard getting fined for not growing wheat.
October 15, 2010, 12:30 amWill J. Richardson says:
I wish everyone would stop using the word “insurance” to describe a system designed to preclude real medical insurance. Real medical insurance is priced according to the relative medical costs incurred by actuarially segregated risk pools based on demographic factors such as age. As an example, consider the premium charged for your teen age driver’s motor vehicle insurance relative to yours.
The whole purpose of Health Care Reform is getting rid of medical insurance and converting “Insurance” Companies into conduits for expropriating money from the young or healthy to pay the medical bills of the old or sick. The irony here is that the old are relatively rich compared to the young and so are better able to pay for medical care than the young, who will incidentally will be poorer through their entire lives than the old who were not subjected to the additional expropriation contemplated by this ill conceived legislation.
Regards,
WJR
October 15, 2010, 12:33 amThe Liberal says:
Allan Walstead,
Please check out McCulloch v. Maryland if you would like an answer to your question.
October 15, 2010, 12:40 amGuy says:
Adler’s in denial, he insists on reading the word “necessary” out of context rather than in it. Depending on context, it can express varying degrees of needfulness, but out of any context, it expresses the idea of an essential accompaniment to something else. But in the context of the Constitution, it is more naturally (I think) read to mean something roughly equivalent to “Congress has all the powers it shall need to do its job” so it’s a more permissive sense of “necessary”, like in the examples I gave above.
October 15, 2010, 12:50 amSuperSkeptic says:
“But if the mandate is not truly necessary for health care reform to work — that is, if (as enacted) it cannot hope to fix the problem it was ostensibly adopted to fix — I think that the argument for its consitutionality is, on the margin, somewhat weaker.”
I take this point of Adler’s regarding the mandate’s marginal constitutional weakness (that is, if it’s not necessary — not McCulloch “necessary,” but dictionary “necessary”) to be realpolitik moreso than anything else. (feel free to correct me if I am mistaken...)
It’s reminiscent of how they say the NIRA was easier to strike down once it was considered a failure.
October 15, 2010, 12:52 amSuperSkeptic says:
I recall something about proper not violating “the spirit of the Constitution” — quite a bit of discretion for judges there...
October 15, 2010, 12:54 amJon Shields says:
As distinguished from the “letter” of the Constitution? Doesn’t seem like a lot of discretion to me. Titles of nobility in furtherance of military regulations would violate the letter. Titles of nobility in everything but name might violate the spirit. The word spirit wasn’t used in a vacuum; it was used in contrast to “letter,” indicating that something that violates the Constitution cannot be saved by a hypertechnical argument that ignores substance. Not that judges can strike laws down willy nilly that are otherwise necessary for an enumerated power.
October 15, 2010, 1:09 amRicardo says:
Sure and within the next 20 years or so, it will be possible to do genetic testing on infants or young people to determine their future risk of diseases and effectively price large numbers of people out of the market because they lost the genetic lottery. That’s “real medical insurance.”
What isn’t clear is why “real medical insurance” is more desirable than a system that covers people regardless of whether they won the genetic and early childhood development lottery or not. If your point is that some people should die because they cannot afford treatment for chronic conditions, that’s one thing. But if you think people should not die because of lack of funds, you are essentially in favor of social insurance of one kind or another.
October 15, 2010, 1:11 amRicardo says:
No it isn’t. We already have that system and it is called Medicare. Insurance companies are explicitly allowed to price policies based on age so your claim that the young will wind up subsidizing the older doesn’t hold up. Additionally, subsidies that are means-tested on income are provided to help people pay insurance premiums — the wealthy will pay full-fare while the poor and lower-income will either qualify for Medicaid or for hefty subsidies.
It is true that the healthy will subsidize the sick but that’s kind of the point of insurance. Nobody who is healthy today can say with certainty that they will be healthy one year from now.
October 15, 2010, 1:15 amSuperSkeptic says:
Of course, of course. Yes, the letter and the spirit, that’s right. I’m thinking of the Court’s federalism cases where they policed the line by citing vague notions of “state sovereignty” and such. I was just quibbling in that it’s much easier for a judge to find a propriety violation of the spirit than the letter.
October 15, 2010, 1:20 amSteve says:
I wonder, incidentally, why Prof. Adler believes the Democrats included the individual mandate in the bill, if it’s so weak that it can’t possibly hope to do the job it’s designed for. Did they do it just for fun? Does Prof. Adler, in geokstrlike fashion, believe that liberals derive glee from increasing the power of the state purely because they can? Was it a giveaway to the health insurance companies, who are rewarding the Democrats by donating by an 8–1 margin to the party which promises wholesale repeal of the bill? I have my own theories, but in his mind, I wonder what he believes is going on.
October 15, 2010, 1:26 amJon Shields says:
You bring up an excellent example. In Printz, their citation of a “state sovereignty” principle was independent of the necessary and proper clause. Because of this independent reason for why the law violates the Constitution, the necessary and proper clause could not save the law. This independent reason was not an artifact of the word “proper” — it would have held true even the plaintiffs waived any enumerated powers claims below.
In this case, there is no independent justification for throwing out the law (other than people who don’t like the law as a policy matter, who would generally prefer the Lochner era to the current era). The “spirit” of the Constitution does not create new, otherwise absent reasons for throwing out laws.
October 15, 2010, 1:28 ambacchys says:
It’s certainly not mine. But the Tenth certainly implies that there is more prohibited to Congress than what is expressly prohibited (such as titles of nobility), which would certainly impact a consideration of whether or not a law is “proper” under the formulation you cited from McCulloch.
October 15, 2010, 1:54 amMillard says:
How do you figure?
October 15, 2010, 2:00 ambadlaw says:
How anyone who paid attention to the health care reform debates and statements made by Obama and various Congressional Dems can think this was intended to be anything more than a penalty is beyond me. It’s obvious that calling it a tax is meant to be a post-hoc rationalization. I wonder why no one will take on the idea that Congress might be misusing its Taxation power. Can Congress tax to “coerce” behavior? I think this has come up before (by me), but if the main point of this surtax is to coerce more costly economic behavior, wouldn’t that be constitutionally suspect?
And also, why does it seem like most of what this bill does is shift certain economic and policy pathologies from the private sector to the public sector? Sure, under a federal plan, people with preconditions can’t be denied. But it seems like “reform” is more an ideology than an attainable goal under this bill.
October 15, 2010, 2:34 amJon Shields says:
So what? There is literally no functional difference between the current law and the current law with the word “tax” in it. None. Every person will owe the government the same number of dollars and the same number of cents, and would pay no other penalty at all. This would be valid under Congress’ power to tax even if there were angry floor speeches throughout the record saying that it was not a tax. Despite what the judge did, this is not about determining which of two different interpretations of the law is valid. They are the same interpretation.
During the Lochner era, they did make distinctions between regulatory taxes and revenue-raising taxes. These have long been repudiated by later courts, and the Supreme Court has specifically said that a tax is no less a tax and no more suspect even if it definitively deters the activity being taxed.
October 15, 2010, 2:59 amD.O. says:
John Shields has nailed it in his first comment. Under ACA, if you buy insurance for the price that is larger that you are willing to pay now it actually buys you insurance (that is something) + buys you out of penalty. Insurance itself might not be worth it (in your view), but with penalty consideration might be a good deal. By paying penalty, you contribute something to the insurance system without getting any benefits, only for the right to get affordable insurance later, when (maybe) sick. It’s quite logical and maybe workable, and clearly is much more than “rational basis” would require.
October 15, 2010, 3:06 amIAdmitIAmCrazy says:
There is probably a lot to your third question, i.e. the giveaway to insurance companies — but by far not enough. Insurance companies would be a lot better off with a stiffer penalty, as that would corral more customers into their plans.
The sad truth probably is that people think that it is always possible to meet half-way when you are trying to work out a deal. But it is not, i.e. if you have people who strongly believe in Keynesian stimuli and others who abhor incurring debt, the compromise then is a weak stimulus. You met half-way but you most probably have rendered the stimulus ineffective.
The Patient Protection and Affordable Care Act is result of a “deal” where the anti and pro-forces met at close to the do-nothing point. First, it is foremost a health insurance, not a health care bill, second, it is neither single-payer nor public choice, and — as Prof. Adler correctly points out — not even a total coverage bill. May I leave it at this: I don’t think that there are easy political answers to health care reform as almost all existing systems struggle with finances and (mostly indirect) rationing.
As regards the constitutionality — a completely different matter altogether — I guess precedent would allow for an individual mandate. After all, the Second Militia Act of 1792 mandated that
But then, I think there is no individual mandate in this bill, all there is, is a tax to cover the usage of emergency rooms of hospitals, with those whose insurance pays for it, exempted from the tax. However, I admit the wording that has come out of the sausage making may facilitate a constitutional challenge.
And to preempt those who argue this to be a state issue, the McCarran-Ferguson Act of 1947 forbids interstate sale of insurance. Also, one of the solutions by Congressional Republicans (e.g. Ron Paul’s “Private Option Health Care Act”) offer for combating rising rates is to withdraw such limitations.
How could Congress have enacted such a law if it is not within its constitutional powers, and how could Republicans suggest to “meddle” in such a way in state matters? Actually, the McCarran Ferguson Act was Congress’s reaction to “United States v. South-Eastern Underwriters Association” wherein the Supreme Court ruled that under the Commerce Clause the Federal government may regulate the insurance business.
For reasons unknown, setting the links for the Paul proposal and the SCOTUS decisions trunkates the text. Here are the addresses:
October 15, 2010, 4:53 amhttp://www.campaignforliberty.com/blog.php?view=35801 http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=322&page=533
cboldt says:
I think framing the law as a tax measure here has a similar quality as framing the law as enabled by the commerce clause. What other inactivity is subjected to a tax?
October 15, 2010, 6:27 amThose who carry qualified health care / insurance plans are not “taxed.” What becomes taxed is abstinence from the federally mandated personal financial conduct.
Jonathan H. Adler says:
Orin, The Liberal, et al. –
I wrote in the original post: “The Necessary & Proper Clause has rarely (if ever) been interpreted by federal courts to limit Congress only to those measures which are truly necessary to carry into execution other powers. So even if the mandate is not “necessary,” it may still be “necessary and proper,” and thus constitutional.” I certainly read McCulloch more narrowly than most contemporary commentators — and I don’t believe McCulloch proves the constitutionality of the mandate — but I accept that McCulloch does not require that something to be “necessary,” as in “essential” or “required,” in order to be constitutional. The problem here is that if the mandate is “necessary and proper” then Congress’ power to once it has entered a field, is unlimited — but that’s a subject for another post.
In any event, in case I was not clear, my aim in this post was not to argue that the mandate is unconstitutional because of its inability to solve the problem it was ostensibly designed to fix. Rather, it was to counter the conventional framing of the mandate as something absolutely essential to the workability of the legislation. [UPDATE: See, e.g., the White House talking points Randy blogged this week.] An individual mandate could solve the adverse selection problem, but the one Congress actually enacted does not — indeed, cannot — and everyone knows it. As I also noted in my post, I think this only influences the constitutional question on the margin.
Steve –
I believe the primary impetus for the mandate was twofold: 1) it may have helped with the scoring of the bill (which, at the end, was all that mattered), and 2) it bought some insurance industry support (though the industry wanted a much higher penalty). As for why the health insurance industry is now giving to Republicans, I think that a) they (like manay industries) like to back a winner, and they believe Republicans will do well in the coming election, and b) there is a degree of buyers remorse as they (like some of the pharmaceutical industry) are realizing that whatever deals they made to enact health care reform do not protect them from additional measures.
I would also add, based upon my decade in Washington, that there are tremendous principal-agent problems with corporate representation in D.C. Industry trade associations and lobbyists are often far more eager to be “at the table” and cut deals than one would expect given the interests of specific industries or corporations, so it is not surprising to me that an industry may give to politicians who oppose legislation that the industry’s lobbyists helped negotiate. I’ve seen companies hire lobbyists thinking they were buying protection when the lobbyists saw their job as negotiating the best terms of surrender.
JHA
October 15, 2010, 6:47 amnyccine says:
Are you serious? “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” What is unclear about this? How do you derive an interpretation differing from bacchys? It could not be clearer; if the Constitution has not granted authority the federal government, then they cannot lay claim to those powers. Whether a given power falls under the grant of the Constitution is certainly up for debate, but not the notion that Congress (or any federal branch) can simply assert it has that power.
October 15, 2010, 7:17 amAnderson says:
If Congress believed eliminating adverse selection were absolutely essential to the success of reform, it could have adopted a tougher mandate. It did not.
* * * An individual mandate could solve the adverse selection problem, but the one Congress actually enacted does not — indeed, cannot — and everyone knows it.
First, I’m not sure how “everyone knows” what will happen in the future.
Second, Prof. Adler’s argument proves too much. Does Congress have the power to set the death penalty for federal crimes? Because “everyone knows” deterrence doesn’t work.
But the more amusing refutation is the prospect of a criminal defendant’s opposing his sentence of, say, five years for a federal crime ... because the sentence is TOO LOW, and thus ineffective, and thus outside Congress’s powers under the Necessary & Proper Clause.
I hope he gives Prof. Adler credit for this argument, as the court will doubtless be wondering where it came from.
October 15, 2010, 7:21 amjrose says:
If that wasn’t your aim, then you shouldn’t have argued:
and simply said your post has no relevance to the constitutional question.
October 15, 2010, 7:29 amjrose says:
I disagree because Lopez, as persuasivley interpreted by Scalia in his Raich concurrence, raises the McCulloch bar when the Necessary and Proper Clause is appplied to the Commerce Clause.
A regulation of something other than economic activity must be essential to an overall regulatory scheme of interstate commerce. Thus, “necessary” no longer means “useful”. On the other hand, deference is still given to Congress as to whether a regulation is essential, and even with your objections, it is rational to conclude the mandate is essential.
October 15, 2010, 7:37 amJonathan H. Adler says:
jrose –
There is no contradiction between my post and my comment. In the OP I said that this argument only makes the argument for the constitutionality of the mandate “on the margin, somewhat weaker.”
As for Scalia’s Raich opinion, while analytically satisfying, it is deeply problematic, for reasons I address in this article.
JHA
October 15, 2010, 8:02 amAnderson says:
What other inactivity is subjected to a tax?
Failure to buy a house with a mortgage ... do you perchance rent, Cboldt?
October 15, 2010, 9:13 amJoe says:
Are all these posts “necessary”? There are lots of threats to liberty, some directly happening now, not involving I’m sorry token ones that will kick in years from now, but this issue is the new white whale of VC.
I’m glad the CA marijuana ballot measure was cited, but it seems to me — particularly since it has a chance of kicking in immediately with real effects — several posts discussing the value aspects of the issue is a better use of time. But, it’s not my blog.
October 15, 2010, 9:42 amAllan Walstad says:
Prof. Adler
So if the federal courts defy logic, then so much the worse for logic? Shouldn’t the salient question be “What does the Constitution itself say, and what do we clearly know the Framers intended to accomplish by those words?” If the courts have made a hash of the Constitution, shouldn’t we be pointing out that the courts have made a hash of the Constitution? If the emperor is wearing no clothes, will the fact will be altered by the pronouncements of fashion experts?
McCulloch is not the Constitution. If Marshall came out and said something doesn’t have to be necessary to be necessary-and-proper, then so much the worse for Marshall and his opinion. The real issue here is that the feds have already violated their Constitutional bounds with the complicity of the federal courts. That is a situation that needs to be rectified, not accepted as a foot in the door for still further violation.
October 15, 2010, 9:44 amPierre Corneille says:
Mr. Adler (or anyone else),
I’m curious to know your thoughts on what being “absolutely essential to the workability of the legislation” implies for the constitutionality of the entire health insurance law. What I mean is, if the mandate is ruled unconstitutional, does that mean the entire law will be ruled unconstitutional, or just the “mandate” portion?
October 15, 2010, 9:47 amAnderson says:
Are all these posts “necessary”? There are lots of threats to liberty, some directly happening now, not involving I’m sorry token ones that will kick in years from now, but this issue is the new white whale of VC.
I was wondering the other day whether Prof. Barnett, for instance, receives any remuneration for his work on briefing these cases.
But “liberty” is not a particular interest at the VC, and never has been. Compulsion to buy health insurance = TYRANNY! Torture = Zzzzzzzzzzzzzzzzzzz.
October 15, 2010, 9:48 amAnderson says:
McCulloch is not the Constitution. If Marshall came out and said something doesn’t have to be necessary to be necessary-and-proper, then so much the worse for Marshall and his opinion.
Mr. Walstad, may I safely infer that you are not a lawyer?
The words “necessary and proper” are not defined in the Constitution. Their definition is for the courts. That is how law works.
... The Court’s opinion in McCulloch, btw, was unanimous. And it’s peculiar to see the usual suspects who oppose “judicial activism” hating on that decision.
Jean Edward Smith, in his bio of Marshall:
Marshall’s decision emphasized judicial restraint. In upholding Congress’s power to charter the bank, he reaffirmed the limited conception of judicial review that he had announced sixteen years earlier in Marbury v. Madison. Discretion in policy matters rested with Congress; the Supreme Court would not presume to judge “the degree of necessity” that had motivated the legislative branch.
Do y’all REALLY want the Court able to strike down legislation because it’s not quite necessary enough? Have you decided that the Court will be Republican forever?
October 15, 2010, 9:58 amMalvolio says:
Why do some people assume that since they cannot personally imagine a solution to a problem (or a solution other than their preferred one), such a solution doesn’t exist? Perhaps at some point, prospective parents will purchase insurance against the possibility of their future offspring losing “the genetic lottery”.
Insurance covers uncertainty. Every improvement in medical testing reduces the need for medical insurance.
Obviously, if you think of insurance not as a hedge against uncertainty but as a money fountain to pay off high medical bills — that is, if you think of insurance inaccurately — reducing the scope of medical insurance is a bad thing.
Why do some people assume that since they cannot personally imagine a solution to a problem (or a solution other than their preferred one), such a solution doesn’t exist? Perhaps instead of some variant on socialized medicine, we will return to the old solution of charity hospitals and fraternal organizations.
October 15, 2010, 10:08 amCalderon says:
Prof. Adler — as I and other commenters pointed out at the time the actual language for the bill was passed, the so-called “individual mandate” is even weaker and less effective than your post indicates. A provision of the health care reform act prevents the government from levying or putting liens on any property to collect the penalty for not buying health insurance.
The only enforcement mechanism I’ve seen suggested so far is that the IRS will take the penalty out of people’s tax refunds, but of course you can avoid that by not having a refund (and you shouldn’t have a refund anyway, since it’s a 0% interest loan to the government). Possibly there will be other enforcement mechanisms, but it’s not clear how much the government can do consistent with the law.
October 15, 2010, 10:25 amA. Criminal says:
The fear is that healthy people will rationally decline to purchase coverage until they are sick, and that this will cause health insurance premiums to increase, which will cause more health people to opt out, and so on. By requiring all Americans to purchase health coverage, the mandate prevents adverse selection and keeps healthier (and cheaper to ensure) people in the insurance pools. At least that is how it works in the theory.
Why not just repeal the 13th? As is it now, They’re going to have to write thousands of pages of shiny new laws to cover each situation where those pesky citizens get uppity and try to make their own decisions.
October 15, 2010, 10:31 amCalderon says:
To follow up on my last comment, the post below discusses the language limiting liens and levys under the health care reform act, as well as potential arguments for how the IRS can still enforce the mandate:
http://taxprof.typepad.com/taxprof_blog/2010/03/the-irs-administrative.html
October 15, 2010, 10:36 amjrose says:
I disagree with your analysis of Scalia’s opinion. You concluded all that Scalia required was a “connection with a more comprehensive scheme of regulation.”
Scalia does say the power “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,” but goes on to say, “Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” (my emphasis) its regulation of interstate commerce.”
I conclude a mere connection is not sufficient.
October 15, 2010, 10:38 amAllan Walstad says:
Anderson
I am not a lawyer–to which, at times like these, I feel impelled to add “Thank God.” It does not matter one whit what definitions one assigns to the words “necessary” and “proper” — something cannot be necessary and proper unless it’s necessary. It can’t be green and big unless it’s green. It can’t be flat and rough unless it’s flat. This is completely elementary.
Right, and suppose the framers HAD offered a definition — then shyster lawyers could take the next step and point out they hadn’t defined all the words used in the definition. Etc. If courts can re-define words any way they like, then there is no Constitution at all; there’s just power in the hands of whoever can get it. One is reminded of Animal Farm, in which “All animals are equal” did not preclude “But some animals are more equal than others.”
Activism, schmactivism — I want the government to obey the Constitution, and I want the courts to enforce the Constitution, rather than pick at it for loopholes in the clearly intended limits to federal power. The issue here is extremely straightforward, one that you do not have to be a lawyer to understand (and indeed it seems being a lawyer may actually get in the way). The Constitution delegates only limited, enumerated powers to the federal government, and for anyone who didn’t get the point the first time around, the 10th amendment nails it down. Madison, who was at the very center of the framing of both the original Constitution and the first 10 amendments, later as president noted that the federal government did not have the power to build a national highway, without an amendment. Later, it was done anyway. But now you think somehow that the commerce clause or the necessary-and-proper clause, or the taxing power gives the feds the authority to intrude into the lives of every person in this country and require them to purchase (government-approved) health insurance? It’s simply preposterous on its face, all rhetorical machinations of pols, judges, and lawyers notwithstanding.
October 15, 2010, 11:06 amRicardo says:
Vague speculation is not an argument or a concrete policy proposal. I’m not sure if you are aware that children get their genes from their parents: a company offering such a service would want to test the parents first before deciding on the premium which surely negates much of the benefit of the insurance. It could lead to a privatized form of eugenics.
And what happens if you are unlucky enough to not have such forward-thinking parents?
October 15, 2010, 11:14 amzuch says:
Prof. Adler:
Even if we assume arguendo the facts as you state them, your conclusion is still not supported. There’s other expenses that need to be factored in (for example, diagnostic tests and such just to find out you’re sick and need to sign up for insurance), and other “prices” to pay, such as any increased risk from delayed diagnosis due to lack of covered screenings, etc.
And cost of the number of people that choose to “free ride” even were it to their advantage at the present penalty rate may be less than the costs of no such penalty or the costs of a very large penalty. I’m not saying it is, but it’s hardly clear on the facts that it isn’t.
Cheers,
October 15, 2010, 11:18 amcboldt says:
– cboldt: What other inactivity is subjected to a tax?
October 15, 2010, 11:19 amAnderson:Failure to buy a house with a mortgage ... –
One could make the same sort of “a deduction or exclusion is a tax” argument with regard to charitable donations, having dependents, renting a safe deposit box, paying into a qualified health care/insurance plan, paying more than a certain fraction of income as medical expenses, and so on. In each of those cases, Congress has used a carrot in the form of a reduction in taxes due, if a person undertakes the favored activity.
Ones tax burden is not increased for failure to mortgage a primary residence, or any of the other examples I noted.
At any rate, my point was only that the same “action=inaction”, “reduction=increase” dichotomy persists, regardless of viewing the legislation as under tax power, or under commerce clause power.
millard says:
Yes.
Baccy claimed that the 10th Amendment establishes implied prohibitions on Congressional authority. But the Constitution defines the positive scope of Congressional power and then places some express limits that authority (e.g., “no law respecting an establishment of religion,” “No Title of Nobility shall be granted by the United States”). The 10th Amendment merely says that where authority is not delegated to the federal government, it’s reserved to the States or People. How does that impose additional, unstated restrictions on the authority of the federal government?
October 15, 2010, 11:23 amcboldt says:
– And what happens if you are unlucky enough to not have such forward-thinking parents? –
October 15, 2010, 11:26 amAssuming the parents follow the doctors advice, you’re never born. See routine tests for Down syndrome, with the rationale being to abort rather than give birth to a defective human.
zuch says:
Actually, you don’t even buy (or “not buy”) the right to get affordable insurance later, AFAIK. That’s always there, whatever you do, so you’re not adding that by choosing any course.
Cheers,
October 15, 2010, 11:26 amzuch says:
... and before they get it, they’ll be required to submit their own DNA for risk analysis....
Cheers,
October 15, 2010, 11:30 amDan Lavatan says:
The insurance mandate is the equivlent of mugging someone and then giving them a free shopping free to your store.
If I were coerced into having insurance by the mandate my medical expenses would go from less than $100/yr to more than $30,000/yr. Since I find the mandate depressing, I might as well see a psychatrist every week since I have to waste the money anyway. I’ll also have no reason to avoid risky behavior like motorcycle racing and use every “preventive” test available.
After the mandate there will be no young and healthy, just a bunch of people trying to get our money’s worth and raising health costs to 50% of GDP. If congress is too stupid to see this, than congress is irrational and the courts should strike down their laws.
October 15, 2010, 11:36 ammillard says:
Isn’t this prohibited under GINA?
October 15, 2010, 11:39 amB-Rob says:
I think you frame this much too narrowly. One other purpose of the mandate is to address and eliminate the CURRENT problem of uncompensated care extended by hospitals. Under the various federal statutes, hospitals must give emergent care to all comers. To use an example you would know, Prof. Adler, University Hospital has an emergency room and trauma center extending care to all comers because Mount Sinai and St. Luke’s are no longer with us. The Cleveland Clinic doesn’t “do” trauma for the same reason. What killed Mount Sinai and St. Luke’s hospitals? Uncompensated care, in large part.
No matter who rolls into the UH ER, they get care without regard to insurance coverage. So UH gets stuck with the $347,590.37 bill after an auto accident injures an uninsured person. With the mandate, it is hoped and expected that there will be fewer and fewer uncompensated care situations for the hospitals; that is why the hospital lobby supported the bill. Combine that with the insurance company support (because it will induce younger, more healthy now-uninsured people into the risk pool, and add bucks to their revenue line, too) and the “necessary” argument becomes much stronger.
One other thing: those who argue that there is some “constitutional right” to go without health insurance (and, therefore, force the rest of us to eat the expense if their uninsured self gets astruck by a bus) ignore the externalities they impose on society. How do you address those externalities without a law compelling them to do something, i.e., buy insurance? A law prohibiting you from walking around with no showing of financial responsibility for your own health care is similar, in some respects, to a law prohibiting you from burning down your house. Yes, you would be the primary “loser” if you set your house on fire; but that fire has sometimes-dire consequences for your neighbors (fire spreading and decreasing property values), property tax and liability implications for the city, and risk of injury or death for the fire fighters rushing to fight it and put it out, etc. Just because you own a house doesn’t mean you get to destroy it without regard to the implications of those actions on others; likewise, you do not have a right to foist the cost of your health care on others, which is what an uninsured person does when they get run over by a thresher.
There are, of course, two logical answers to the question of “what to do” in the event that a court overturns the mandate and the GOP is in control of the Congress. The principled conservative answer SHOULD be to permit hospitals to withhold care to any person who is uninsured. But that is not politically tenable, so the GOP will most likely take the route of least resistence — do nothing. This will expand the insurance companies’ burdens (adult children of insureds added on, no pre-existing conditions, and no lifetime limits) without the countervailing benefit of a larger, younger base of insureds. And this will only serve to drive up insurance rates even further for those of us who have insurance.
The other temptation, though, would be to expand Medicare/Medicaid eligibility to everyone who lacks their own insurance. This approach has the benefit of building on an existing structure and might justify an increase in Medicare/Medicaid payroll taxes to solve the immediate solvency issues. But it is ungodly “socialism” (extending health insurance coverage and health care to all without regard to their means to pay) and the GOP doesn’t like that, either.
In short, the GOP better hope that the hated but necessary individual mandate is upheld.
It should be interesting to see what the judge does in the end. But if I were in control of the Obama administration’s litigation team, I would not file for summary judgment; just go to trial. This is not a principled constitutional disagreement with Obamacare; it is purely political, thus the reddish hue of all the AGs pushing for a litigation solution to their previous legislative failure. So make the other side put their plaintiff’s under oath and have them explain why they should be permitted to continue gravy-training on those of us who have insurance. Have the states explain why they declined to AVOID THE INDIVIDUAL MANDATE for their citizens by declining to offer their own coverage plan. Have the states explain why this is not “necessary” because they have a better plan for universal coverage. The absence of other approaches to solve the problem makes the “necessary and proper” argument stick.
October 15, 2010, 11:47 amMark Field says:
Because that worked so well? Because coming down with Alzheimers — the care for which could bankrupt 99% of Americans — is a moral flaw?
October 15, 2010, 11:56 amAnderson says:
Well, Mr. Walstad, in our system of government, the courts say what the law means.
I’m sorry if you find that presents difficulties, and I’m not sure whom you trust more than the courts to fulfil that role.
Somehow we have muddled through with McCulloch’s reading of the Constitution for some 200 years now.
October 15, 2010, 12:00 pmMark Field says:
I’m always amazed that people today can think something is “so clear” when those who were actually there, like John Marshall, disagreed (along with a unanimous Court).
A little humility on claiming to know the minds of people dead for over 200 years would seem to be in order.
October 15, 2010, 12:00 pmB-Rob says:
@ Dan — if you are uninsured and you or your kid gets hit by a bus tomorrow, what happens to you? You get taken to a hospital and they fix you up. When the $167,049.33 bill comes for your care, you surely don’t have the ability to pay $167,049.33 because you did not have the $30k to buy insurance. So you will not pay your bill, the hospital will get stuck, and they will pass the bill on to me. It is YOU who are lying in wait to mug ME because you refuse to take full financial responsibility for your prospective health care costs.
The mandate, in that sense, is my unconcealed weapon, intended to keep the uninsured (muggers)and their families from sucking more dollars out of my wallet. Just because they think they have better things to do with their dollars than provide for their own financial security does not entitle them to mooch free medical care at my expense. In other words, uninsured muggers, stop trying to socialize your health care costs to the rest of us. Take some personal responsibility and get your own coverage.
October 15, 2010, 12:21 pmJustice Kagan's neck dolly says:
There’s nothing more intellectually craven than trotting out the “are you a lawyer? If you’re not a lawyer just shut up” authority card. It’s a pathetic clutch. I cringe whenever I feel tempted to use it — indeed, I feel ashamed for even considering it — because it signals that I’ve failed to make a compelling argument to the layman I’m having the discussion with, so I have to browbeat him with the fact that he isn’t a lawyer.
October 15, 2010, 12:43 pmSuperSkeptic says:
Not exactly; it was not “independent of the necessary and proper clause.”
Scalia in the majority said:
“The dissent of course resorts to the last, best hope of those who defend ultra vires congressional action, the Necessary and Proper Clause. [...] What destroys the dissent’s Necessary and Proper Clause argument, however, is not the Tenth Amendment but the Necessary and Proper Clause itself. [n.13] When a “La[w] . . . for carrying into Execution” the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions we mentioned earlier, supra, at 19–20, it is not a “La[w] . . . proper for carrying into Execution the Commerce Clause,” and is thus, in the words of The Federalist, “merely [an] ac[t] of usurpation” which “deserve[s] to be treated as such.”
October 15, 2010, 12:52 pmSuperSkeptic says:
I think the logic of this type of point for the mandate is somewhat compelling; however, and what is most funny to me when I read this type of argument, is that it leaves out the fact that you instructed the mugger to rob you in the first place by law because of your own moral code. You don’t want to see him go without (and neither do I). So you pass a law that says he can’t. Then you turn around and get angry at him for externalizing his costs on you. You’ve externalized them onto yourself, really.
[edit: regarding my previous post, hat tip to jrose for reminding me of printz last time i was wondering aloud if the court had ever defined “proper”. Incidentally, Printz could just as easily have been conceptualized as a violation of the “spirit” than purely the “letter” i.e. improper.]
October 15, 2010, 12:58 pmSeaDrive says:
1) Is it rational to decline to purchase coverage if you are not sick?
2) How many people who can afford coverage fail to buy it just because they think it’s the rational choice?
On the first question, some of the requirements of the new law (e.g. mandated issue of coverage to people with existing conditions) will nudge the needle from no in the direction of yes, I suppose, but will there be a insurance agent stationed between the ER and the OR so you can enroll on a just-in-time basis. Anyone can walk into a doctor’s office healthy save for a symptom or two, and walk out with a dire diagnosis. I know, I’ve been there.
On the second question, the only survey I ever saw said “not a lot.”
October 15, 2010, 1:05 pmbacchys says:
By expressly stating that what is not delegated is reserved by other entities (the states and the people). Contra the view expressed upthread that Marshall disagreed with the Tenth as affirming a Federal government of limited powers, Marshall expressly affirms it. Congress’s powers are limited to those enumerated and such other powers as are reasonably derived from them as “necessary and proper” to make them effectual. The bank was upheld in McCulloch not as some strange, unmentioned authority of Congress, but because establishing it was reasonably derived from the powers delegated to Congress.
“This Government is acknowledged by all to be one of enumerated powers” (McCulloch v. Maryland).
The Tenth, albeit in general terms, tells us there are things the national government may not do.
October 15, 2010, 1:29 pmbacchys says:
I’m just a dumb steelworker. If it makes someone feel superiour to inform me he is a lawyer and I am not, I am glad to have provided that small service.
October 15, 2010, 1:31 pmmillard says:
No, other provisions of the Constitution tell us that there are things the national government may not do. The 10th says only who else has the authority to do those things.
October 15, 2010, 1:56 pmzuch says:
How so? Please be specific.
How so? Please be specific.
Cheers,
October 15, 2010, 1:57 pmJon Shields says:
In terms of McCulloch, I think the issue isn’t that the court went beyond the bounds of the Constitution, but that we are just accepting it because it is precedent. I think rather, the issue is that McCulloch was correctly decided (and would be correctly decided if the same decision were made today). In other words, a decision construing the necessary and proper clause more narrowly than McCulloch would be incorrect, not correct.
So you are correct that McCulloch is not the Constitution per se, but it does correctly interpret the Constitution (as opposed to making a “hash” of the Constitution, which you suggest). I think that’s what others are getting at here.
October 15, 2010, 1:58 pmB-Rob says:
Let me explain why the guarantee of emergency care is, in fact, a good idea. My daughter, God love her, is 14 years old. Great kid, but she sometimes loses things. If she happened to have a car run up the curb and hit her while she walks down the street, I want her treated at the hospital, not denied care if she can’t show proof of financial responsibility.
We as a society have a compact that says “everyone gets emergency health care” without regard to insurance status, just as you get police protection regardless of your taxpayer status, and you get fire protection regardless of whether you have paid your property taxes . . . er, on second thought, BAD example! Our agreement in this country is that you get the care now, then we worry about payment later. This ensures that the insured without an insurance card gets care, and the billionaire hobo and the poor hobo both get the same care. This, of course, creates a HUGE free rider problem, one that the mandate starts to solve.
I have yet to have any anti-mandate commenter address this; they usually skip over their societal responsibility to pay for the services they consume and go right to their “constitutional right” to mooch off the rest of us with impunity. Hopefully the courts will find no such right to a continued free lunch because it will only lead to a more socialistic response to solve the uninsured services problem — or lead to the need for my comotose 14 year old to have an insurance group number encapsulated in her hip, like in “The Bourne Identify.”
October 15, 2010, 2:09 pmB-Rob says:
I agree to some extent. But there is a frustration lawyers have in dealing with people saying what they THINK the law is when that opinion evidences a fundamental misunderstanding of the law. I mean, how do you respond to someone who claims they have no responsibility to respect a federal court because they are “a free person,” or because “that flag has fringes and this is not an admiralty court”? Likewise (not saying this happened here) but how do you respond to someone with an simply erroneous, patently wrong and politically motivated reading of what the Founding Fathers (all of them?) meant when they drafted the clause?
October 15, 2010, 2:14 pmDilan Esper says:
I understand this view. I really do. And it’s not totally without merit– obviously, you don’t have to be an expert about something to have an opinion, and we need the voices of outsiders partly because people “in the club” can develop their own ideosyncratic traditions and miss the forest for the trees.
That said, the problem I have with many outsiders who comment about the law (especially from the right, but I sometimes see this on the left as well) is the assumption that the reason why we talk about precedent and current doctrines and pragmatic issues is because we are a bunch of corrupt unprincipled douchebags who don’t give a crap about the actual meanings of the texts or the original intent or understanding. It simply assumes that anyone who doesn’t talk about the law in the exact way that Justice Thomas does in his most extreme moments (and note, even Justice Thomas will sometimes follow precedents he doesn’t agree with) must not care at all about text and history.
The fact of the matter is that interpretation of vague texts is hard. It isn’t easy to read minds, history is often very selectively read, and you are often applying words to problems that the authors never even considered. And you can’t simply tear down everything that has been built up over two and a quarter centuries just because you don’t agree with it. Not only are you upsetting a lot of settled expectations, but you are also assuming that all these smart people who sat on our courts for so long developing this doctrine must be wrong and we must be right.
So while I don’t think it is productive to be asking “are you a lawyer” whenever someone offers an oversimplistic legal interpretation, non-lawyers– especially those who constantly argue that the Constitution is being ignored– need to understand why legal interpretation is complicated and why text and history may begin the inquiry but don’t necessarily end it.
October 15, 2010, 2:21 pmMorat20 says:
One would think the lawyer is your superior in understanding the law, just as you are his superior in working with steel.
It’s not just the fact that it seems to be standard to believe experts know less about their own field than laymen, but to somehow distrusts them because they ARE experts in that field.
What’s that physicist’s game? Why does he think he knows more about relativity than me, just because it’s the focus of his life’s work and study? He’s just trying to screw me!...
A weird rallying cry.
October 15, 2010, 2:23 pmDilan Esper says:
I think you oversell Marshall a bit. Marshall did not believe that there were no limits to federal power or that Congress’ powers were not limited to those enumerated (including in the necessary and proper clause). And the Tenth Amendment is explicit that powers not granted to the federal government are reserved to the state.
Marshall believed that federal powers are extremely broad and need to be given a broad construction. He never said unlimited and, as far as I know, never believed that they were unlimited.
October 15, 2010, 2:24 pmGuy says:
The point of Adler’s statement is that, as near as I can tell, he thinks the reading of “necessary” in McCulloch is wrong. So he was just poking at it.
October 15, 2010, 2:33 pmDanube of Thought says:
It’s the income that’s taxed. If you pay mortgage you get a deduction; if you don’t, you don’t.
October 15, 2010, 2:36 pmGuy says:
Congress can tax anything they want, the only question is whether it’s an income tax and freely imposed, a direct tax and subject to apportionment, or an indirect tax and subject to uniformity.
October 15, 2010, 2:50 pmThe Ghost of Spalding Smails' Booger says:
You realize under your definition that the individual mandate is out, right?
October 15, 2010, 2:54 pmmillard says:
Please explain.
October 15, 2010, 3:09 pmAnderson says:
There’s nothing more intellectually craven than trotting out the “are you a lawyer? If you’re not a lawyer just shut up”
Concur, which is one reason I didn’t say “just shut up.”
But when people act like we’re supposed to tear up 200 years of case law and just read the Constitution the way God meant for it to be read, then I kinda *hope* they aren’t lawyers. Because they don’t know what “law” is or how it works.
Law is fundamentally conservative. It works by accretion, precedent, analogy to the past.
So you don’t, for instance, look up “necessary” in a dictionary, compare it to McCulloch, and decide to overrule McCulloch. Not how it works.
People who *aren’t* lawyers can learn something from listening to lawyers, just like I can learn from people who do stuff I’m ignorant about. I just hope I don’t tell, say, steelworkers what’s better, welded plates vs. riveted.
October 15, 2010, 3:11 pmcboldt says:
– Congress can tax anything they want ... –
October 15, 2010, 3:29 pmWasn’t always so. The Supreme Court ruled, in US v. Miller, that it was against the 2nd amendment to tax the sale or transfer of a firearm that has some reasonable relationship to the preservation or efficiency of a well regulated militia, is any part of the ordinary military equipment or that its use could contribute to the common defense.
I think that the courts have ruled that Congress can’t tax the privilege of voting, either.
Mark Field says:
I absolutely agree that he thought there were limits on on federal power and that Congress was restricted to the enumerated powers. My point was that those who contest his decision in McCulloch seem awfully sure that they’re right in circumstances where they should be a little more humble.
October 15, 2010, 3:55 pmGuy says:
I meant the tax power has no internal constraints on what can be taxed, external constraints are another issue.
October 15, 2010, 4:04 pmbacchys says:
The Tenth expressly says the powers of the national government are those “delegated.” Which means that all powers not delegated are prohibited to the national government, being reserved to the states or the people.
So, no, the Tenth does not “just say who else has the authority to do those things.” It’s not a “who else,” but a “who may.”
October 15, 2010, 4:41 pmSeaDrive says:
Here we have examples of why you need to be a lawyer, perhaps why you need to be a Constitutional lawyer, to make sense of it. For example, where does the term “necessary” come to bear? Necessary to have universal coverage? Necessary to have a mandate if one is to have universal coverage (which, in itself may not be necessary)? Necessary to have a mandate in the absence of some suitable state action? Necessary to have a mandate in lieu of some less appropriate taxation?
October 15, 2010, 4:51 pmAnderson says:
I continue to be curious about the origins of the phrase “necessary and proper.”
It appears in the 1774 Quebec Act enacted by Parliament, for instance.
It’s also interesting how often “unnecessary and improper” appears in Madison’s notes on the Debates.
October 15, 2010, 5:14 pmAnderson says:
... Okay, not to beat a dead horse, but this book addresses The Origns of the Necessary and Proper Clause.
In Chapter 4, Professor Natelson offers his evidence for locating the origins of the clause in agency law. Professor Natelson first shows that the founding generation almost uniformly viewed government through the lens of agency law: Public actors were seen as fiduciaries, subject to the same kinds of restrictions on their power as private fiduciaries such as executors, factors, and guardians. He further shows founding-era familiarity with the doctrine of principals and incidents, in which agents were understood to have power to exercise authority not expressly granted by the instruments of agency if that authority was subsidiary to the accomplishment of the specified ends. He concludes that the language “necessary and proper for carrying into Execution” neatly incorporates these two large principles of agency law: A “necessary” law is one that conforms to the doctrine of principals and incidents, and a “proper” law is one that conforms to fiduciary norms appropriate for public actors.
Interesting stuff. I was sure that the phrase was not newly-minted at the Convention.
October 15, 2010, 5:25 pmFreddy Boisseau says:
I am not a lawyer nor do I pretend to be one. Instead I am a person that deals with computers and as such when I read things I tend to focus on syntax and structure of what is written. When I look at the following, I read it based on my understanding of syntax and structure.
First Congress is given the power to tax and raise money. We then get to the reasons why Congress can raise taxes, to pay debts, to defend the country, and provide an environment that promotes the general welfare. We are then informed that all taxes should be uniform across the country, this was modified by the 16th amendment.
The next section of this text outlines the power that are given to Congress so that they can defend the country and provide environment that promotes the welfare of all the people. This is a positive list of power that were given to Congress, it is not a negative list like the Bill of Rights. From my understanding this is on purpose, the Founders wanted to limit the power of Government, and this is best done by telling Congress what they can do. If you tell some what they can not do, then you have to list everything you can think of that they might want to do. If you leave something out, it the same as telling them that they can do it. Think of your children, if you tell them that they can watch TV or read a book. If they want to play video games or go to a friends house they must come back and ask you if they can, because you did not authorize it. If on the other hand you tell them that they can not play video games, but forgot to tell them not to go to the friends house, logically they are allowed to go.
We finally get to the “Necessary and Proper” clause that seems to be the focus of this discussion. The way I read this is that is limited by the phrase “Execution the foregoing Powers” to the powers listed above. If it was not for this phrase and the one that follows it, I would have to agree with those that state that this clause allows Congress to do whatever it wants. It just seems to me that it is very clear that those two phrases limits what Congress can do to what is necessary and proper to effect the enumerated powers above it.
To summarize my thoughts on this subject, I like to propose this example. Let say you and your neighbors belong to a home owners association and you decide to contract with a company to provide emergency services to your community. If the contract was worded as follows:
If ACME Security then started making rules requiring that you take down blinds and curtains so that they can see any suspicious behavior that occurs in your house. I suspect most of us would say that based on the above contract they do not have that power, because while they can patrol the streets, that authority stops at your door. If they told you that you had to purchase a specific fire extinguisher or a specific alarm system, even if you were not going to purchase one. Would you not agree that they had overstep their bounds, because while they are allowed to fight a fire, they are not allowed to try to prevent one? Or if they required you fill in your pool or provide them your medical information. Would you have a problem with that, since they are only authorized to treat you if you have a medical issue, again not to try to prevent it?
Now I would agree that they could make a rule stating that the community must provide them with equipment, such as patrol cars, firefighting and medical equipment. I would even say they could require you to have lights in the front yard to increase visibility, or limit the cars and other vehicles parked on the street, to increase the access for emergency vehicles. But those would be logically be necessary and proper, so that they can provide the services contracted for.
October 15, 2010, 5:42 pmGuy says:
Thanks for the link, looks like a good read.
October 15, 2010, 5:44 pmDilan Esper says:
Actually, if he had put that in the Constitution, it would probably result in even more deference to Congress; Congress seems to consistently meet that standard.
October 15, 2010, 7:13 pmAndrew says:
Interesting blog post. The idea seems to be (as John Marshall might have said) that the “means” (i.e. a paltry penalty for not complying with the individual mandate) are not adapted to the “ends” (i.e. preventing people from abusing the ban on denying coverage to people with pre-existing conditions). I had not seen that argument made elsewhere.
October 15, 2010, 8:24 pmElliot says:
If the law says I can pay X if I choose not to buy insurance for 4X, wouldn’t it make sense to offer me a policy for X? I can’t get one for X now because government demands policies cover so much stuff it can’t be sold for X.
October 16, 2010, 12:51 amB-Rob says:
The Constitution’s “necessary and proper” clause would permit Congress to establish laws that are “necessary and proper” to “provide for the . . . general Welfare of the United States”. It would be akin to the security company in your example having a “cooperation” clause in the contract where you agree to cooperate with reasonable requests to decrease burglary risks. Taking down all your curtains is a bridge too far; but requiring you to trim your bushes and install lights would not be so intrusive, now would it? At any rate, there is wiggle room built into the Constitution. That is why the question “Can government require you to eat vegetables” is so silly when discussing health insurance. Health insurance is nothing more than a signal of financial respnsibility for your own health care; requiring insurance it is not the same as ordering you to go get a stress test or a pap smear. In addition, there is a much more tenuous connection to “the general Welfare” from an order to eat your veggies than an order to take financial responsibility for your health care so that those costs are not borne by society as a whole.
October 16, 2010, 2:01 pmyankee says:
I’m trying to imagine how this would work. First, I suppose, the judge rules as a matter of law how effective the mandate would have to be at reducing adverse selection in order to be “necessary and proper.” Then a trial on the merits, where competing experts opine on how many people would decline to get health insurance anyway and how much impact that degree of adverse selection would have on the efficacy of the legislation. They speculate about who will be President in 2014 and how this will impact how well-publicized the exchanges and penalties are. Will President Palin make sure everyone knows the mandate is all-but unenforceable in order to make the legislation fail? Or will President Obama make sure people know about the mandate, but not how unenforceable it is? How many plans will be offered, and how much of an effect will choice paralysis have? Will the economy have improved, and how will this impact household budgeting for health insurance?
Making a finding of “fact” about how effective the mandate is going to be seems completely beyond the capacity of any court.
October 16, 2010, 5:22 pmFreddy Boisseau says:
B-Rob,
The question does get back to where in the list of enumerated powers does the Congress get the power to require me to purchase insurance. This is like the security company in my example, saying I have to purchase a gym membership and attend, because I will be healthier, and thus less likely to need their service to treat a heart attack or stroke.
The Congress was given the power to regulate commerce to protect the Free Market. Instead they have gone the other way, and restricted the free market. Just look at the history of Health Insurance in this country. Prior to the 1940’s health insurance was not very common and typically covered only major medical. The insurance that was provide, mainly came from non-profit groups whose members came together to help each other. In the 1940’s FDR imposed wage controls, and the businesses needed something to attract good employee’s started providing health insurance as a benefit. This fit FDR plans as he wanted government health care at some point, and thus he allowed it. Congress then started regulating these plans, and among these regulation, they kept insurance companies from offering plans that crossed state lines. This limited competition and so insurance companies had less desire to offer a plan that provide quality service at the lowest cost. The companies that were purchasing these plans, only desire was to provide what seemed to be the most services, at the least cost to them. No one is really concerned about providing the best service possible at the least cost, because the people paying for the service are not using the service. All these steps, which are continued in the current health care bill, had the effect of limiting competition and choice instead of increasing it.
So we get back to the original question, where does the Constitution say that Congress has the right to regulate the health care system? Keep in mind the commerce clause only cover commerce between the states, other countries and the indian tribes. It does not allow congress to regulate commerce between people and/or corporations. That came from a Supreme Court ruling which could be argued was made under duress, as FDR was threatening to pack the court in order to gain control over it. The court either had to side with FDR or have the court would become just a tool of the President.
This idea of twisting the purpose of the commerce clause to limit freedom, is common in both parties and Congress use propaganda to promote this idea. If you go to the new visitor center for Congress, you will notice that portion of the Constitution that was engraved in stone, have been modified to suggest an increase power for Congress, by replacing certain words with “...”. The words removed intentionally changes the meaning of that section of the Constitution. We need to get back to where Congress is promoting the Free Market, instead of Crony Capitalism by picking winners and loser. Because when they do pick the winners, we the people tend to be the losers.
October 18, 2010, 10:25 amPCSO Lotto Draw Results : says:
of course health insurance is very much essential for your own sake.~‘
October 28, 2010, 2:26 pmFreddy Boisseau says:
PCSO
Why is it necessary? Could I not pay for my medical care out of pocket if I wanted to, and if I could not afford it forgo the treatments (by the way I do this with my dental care). Let us take the worst case scenario of cancer. The treatment for that could be hundreds of thousands of dollars, correct? Now if I did not have insurance, I could pay for that out of pocket or I could not pay and die from cancer. The choice would be mine to make, and even if I could not afford it, did I made the choice to not have insurance.
There is two things that people who are pushing this idea of insurance on society tend to forget. One is “freedom” of choice, we each have or should have the freedom to make choices, and either prosper or suffer because of those choices. I believe that if I make a good choice then I should reap the rewards of that choice, and if I make a bad choice I should suffer those consequences. Now I have no problem and actual encourage people to “choose” to help those less fortunate then themselves, and if the statistics are to be believed most of the conservative population believes the same. They tend to give more to charity directly to those in need, then the progressive population.
The second thing that, I believe is lost in this discussion is that insurance is by it very definition is gambling. Insurance is something that you purchase to protect you for a lost due to unforeseen circumstances. Take home insurance for example, you pay several hundreds of dollars each month in case you lose your home worth several hundred of thousand dollars over that period of time. You are placing a bet that you will lose your home, a bet that you do not want to win and the insurance company is betting that you will not lose your home.
In case of medical insurance there are two types. One that pays for doctor appointments and routine care. There is no doubt here that you will go to the doctor office and you will have routine care, just like their is no doubt that you will have to paint your house and fix minor damage. Since the chance is high that you will make a claim, the insurance company has to cover those cost and the cost to track all the treatments. The other part covers major medical expenses, such as surgery and emergency care. This is a bet that you are making, just like above with your homeowners insurance. You are betting that you will need surgery or emergency care, again a bet you do not want to win and again the insurance company is betting that you will not.
Now taking this further, in both cases if I was money wise, and could count on myself to make the deposits and not spend it. I could take all the money I pay to insurance companies and have a good chance that I would end up ahead. Now the truth of the matter most of us are not like that and we know it. That is why we buy insurance and in the cases where our action could cause others loses are required to have it, for example liability on autos and home insurance required by the mortgage company. Medical insurance does not fall into this category, because if I get sick or injured, my lack of insurance should not effect anyone else. The only reason it does is because the government, in the belief it is being compassionate, has taken on that responsibility for those who can not pay and since that money comes from us, the lack of insurance by another does effect us. I have not problem with that model, if I entered into it willing, but in this case I did not. Instead these decision were made by others and the forced on to me.
October 28, 2010, 2:58 pmsparky anderson says:
I think the logic of this type of point for the mandate is somewhat compelling; however, and what is most funny to me when I read this type of argument, is that it leaves out the fact that you instructed the mugger to rob you in the first place by law because of your own moral code. You don’t want to see him go without (and neither do I). So you pass a law that says he can’t. Then you turn around and get angry at him for externalizing his costs on you. You’ve externalized them onto yourself, really.
[edit: regarding my previous post, hat tip to jrose for reminding me of printz last time i was wondering aloud if the court had ever defined “proper”. Incidentally, Printz could just as easily have been conceptualized as a violation of the “spirit” than purely the “letter” i.e. improper.]
November 6, 2010, 12:31 am