On first read, the most striking aspect of Judge Vinson’s ruling today is not its remedy — striking the Affordable Care Act in its entirety — but the impression one gets that the opinion was written in part as a Tea Party Manifesto. At least half of the relevant part of the opinion is devoted to discussing what Hamilton, Madison, Jefferson and other Founding Fathers would have thought about the individual mandate, including the following remarkably telling passage (p. 42):
It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.
As I’ve written elsewhere, the same Founders wrote a Constitution that allowed the federal government to take property from unwilling sellers and passive owners, when needed to construct highways, bridges and canals. But Judge Vinson dismissed those and other examples with the briefest of parenthetical asides: “(all of [these] are obviously distinguishable)” (p. 39). Instead, he twice cites and quotes the lower court opinion inSchechter Poultry (pp. 53, 55), which struck down the National Industrial Recovery Act, at the height of the Great Depression and the pinnacle ofLochner jurisprudence.
Still, it’s fair enough to conclude, absent controlling precedent, that being uninsured might not constitute interstate commerce. What’s harder to swallow is the judge’s rejection of the Necessary and Proper Clause. In refusing to sever the individual mandate, he not only concedes the mandate “is indisputably necessary to the Act’s insurance market reforms, which are, in turn, indisputably necessary to . . . what Congress was ultimately seeking to accomplish,” he astonishingly devotes about ten pages (63-74) to hammering home the mandate’s necessity, explaining, for instance, that:
this Act has been analogized to a finely crafted watch . . . . It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions — which, as noted, were the chief engines that drove the entire legislative effort — for me to try and dissect out the proper from the improper
So if the mandate is so clearly necessary, why is it not “proper.” The answer, as in Virginia’s Judge Hudson’s opinion, is a virtual tautology: because the Commerce Clause does not permit it. Here are critical excerpts:
the Clause is not an independent source of federal power (p. 58) . . . Ultimately, the Necessary and Proper Clause vests Congress with the power and authority to exercise means which may not in and of themselves fall within an enumerated power, to accomplish ends that must be within an enumerated power. (p. 60)
In light of [United States v. South-Eastern Underwriters], the “end” of regulating the health care insurance industry (including preventing insurers from excluding or charging higher rates to people with pre-existing conditions) is clearly “legitimate” and “within the scope of the constitution.” But, the means used to serve that end must be “appropriate,” “plainly adapted,” and not “prohibited” or inconsistent “with the letter and spirit of the constitution.” . . . The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers. (p. 62)
The defendants have asserted again and again that the individual mandate is absolutely “necessary” and “essential” for the Act to operate as it was intended by Congress. I accept that it is. Nevertheless, the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be “proper.” (p. 63)
My full rebuttal is here, but in brief: none of this is consistent with Comstock, which allows the federal government to commit mentally ill former prisoners to civil treatment, despite the clear absence of any general federal civil commitment power. And this is inconsistent with Lopez and with Justice Scalia’s concurrence in Raich, which note that regulation, otherwise forbidden, of local noneconomic activities, can be justified when this is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Thus, we still await a convincing explanation of why rejecting the “necessary and proper” defense is consistent with recent Supreme Court opinions, authored or joined by most of the conservative justices.
Another good discussion was just posted, this time at the ACS Blog: http://www.acslaw.org/acsblog/node/18213.
Judge Vinson’s opinion striking down the Affordable Care Act was remarkable for the ease with which it jettisoned two centuries of settled law. Ever since McCulloch v. Maryland, the Supreme Court has held that the Necessary and Proper Clause gives Congress the authority to reach matters otherwise beyond the strict confines of Congress’s enumerated powers. Yet Judge Vinson – like Judge Hudson in the Virginia decision several weeks ago – effectively reads the Necessary and Proper Clause out of the Constitution.
Vinson’s logic goes like this. The minimum insurance requirement, he says, falls outside of Congress’s power to regulate “commerce . . . among the several states” because it regulates inactivity, rather than activity. Of course, nowhere in the text of the Constitution is Congress’s authority limited to regulating activity, but ignore that for the moment. Because Congress doesn’t have power under the Commerce Clause to require taxpayers to purchase insurance, the Necessary and Proper Clause can’t be used to justify the law either.
The judge’s decision can’t deny that the insurance requirement is necessary. Indeed, it is so central to this comprehensive health insurance regulation that he held the whole law had to be struck down. The problem, he says, is that the minimum coverage provision isn’t “proper” because it falls outside of Congress’s powers under the Commerce Clause.
If Vinson’s tautology were applied to past Necessary and Proper Clause cases, they would come out the other way. InMcCulloch, the law chartering a federal bank would be invalidated because Congress doesn’t have any explicit power to charter a bank. In Gonzales v. Raich the Court upheld a federal ban on homegrown marijuana because, Justice Scalia’s influential concurring opinion explained, it was an essential piece of a comprehensive regulation of a market – even though the growing of marijuana for personal use was beyond the reach of the Commerce Clause. Vinson’s reasoning would mandate the opposite result. And just last term, the Supreme Court held in United States v. Comstock that the Necessary and Proper Clause empowered Congress to detain certain sex offenders even though, again, doing so was outside of any other enumerated powers.
The basic purpose of the Necessary and Proper Clause is to give Congress the choice of means it can use to make a regulation of, say, interstate commerce effective. That is exactly what the minimum coverage requirement does. There’s no doubt that the Affordable Care Act is a broad, comprehensive regulation of the health insurance market. Requiring individuals to finance their own medical expenses is closely and directly tied to the viability of that broader regulation. That’s why it is both necessary and proper, however those terms are defined.