Is Obamacare Necessary and Proper?
I certainly agree with John Yoo’s post arguing that the decision in Virginia v Sibelius demonstrates that Obamacare’s weak spot is the Commerce Clause. But I hasten to add that the battle will probably not center on the word “commerce” which is now nearly meaningless in Constitutional law, but rather “Necessary and Proper.” There's a debate going on -- which Orin Kerr has stoked over at Volokh, and which has the Washington Post jumping for joy -- that Judge Hudson made a huge mistake by failing to address the "Necessary and Proper" clause of the Article I. According to Kerr:
The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of Article I powers to achieve the ends listed in Article I.
This is one of those fundamental errors that has become embedded in post-New Deal jurisprudence: the idea that the Necessary and Proper Clause transforms the Commerce Clause into the Whatever-Congress-Wants Clause. Constitutional scholar Robert Natelson has done exhaustive research on this clause and has (IMHO) demolished the conventional wisdom. In fact, “necessary and proper” was eighteenth century legal boilerplate used in powers of attorney – and its purpose was to restrict the scope of activities that the agent could perform on behalf of the principal.
The Founders often referred to government as “agents” (or servants) of the People, and they borrowed from agency law to reinforce the concept that Congress must stick faithfully to the enumerated powers. And then they stuck in the Tenth Amendment to make it absolutely beyond-all-doubt clear that the powers not delegated to the federal government remain with the States and the People. Or so they thought.
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Jul '10
Re: Is Obamacare Necessary and Proper?
By 2050, the first amendment will be interpreted to mean that Congress can pass any other law it damn well pleases, as long as it doesn't establish religion, restrict speech, etc. The tenth amendment will be interpreted to mean "Blah, blah, blah."
Re: Is Obamacare Necessary and Proper?
If the Necessary and Proper clause was intended to provide an end-run around the enumerated powers, why bother enumerating them in the first place? And why bother having a 10th Amendment? Even a truck driver can figure this out.
Aug '10
Re: Is Obamacare Necessary and Proper?
Umm... Obamacare necessary? No.
Proper?... No.