Legal Commentary

More on the Constitutionality of the Individual Mandate

By Orin Kerr

I appreciate Ilya?s reply to my post on the constitutionality of the individual mandate. Three points in response:

1) Ilya suggests that the Supreme Court has never answered what makes legislation ?proper,? and he suggests a first-principles argument for why there may be limits on what is ?proper? that would permit the Supreme Court to say that the individual mandate is unconstitutional because the Justices do not see it as ?proper.? He writes:

[The Supreme Court] has said very little about what ?proper? actually means. Under the text and original meaning of the Constitution (which the Court is more likely to resort to in cases where there is little or no relevant precedent), ?proper? at the very least means that the federal government cannot claim virtually unlimited power (we cite to works discussing some of the relevant evidence in the amicus brief). Otherwise, it would render all or most of Congress? other enumerated powers completely superfluous, making a hash of the text. And the logic of the government?s position does indeed lead to virtually unlimited federal power.

But of course the Supreme Court has said a lot about what kind of power is permitted under the Necessary and Proper Clause ? that?s the point of McCulloch, Sabri, Comstock, and the like. And those cases seem to reject Ilya?s approach. Just a few months ago in Comstock, the Supreme Court quoted this passage from Burroughs v. United States , 290 U. S. 534, 547?548 (1934), as the correct statement of the law:

If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone. 

If the Supreme Court has said that ?the extent to which [statutes] conduce to the [constitutional] end, [and] the closeness of the relationship between the means adopted and the end to be attained, are matters for congressional determination alone,? what room is there under current Supreme Court precedent to start from scratch with a first-principles conceptualization of the meaning of ?proper?? 

2) I don?t find myself persuaded by Ilya?s reading of Comstock. It?s true that Comstock held that the relevant program questioned in that case was constitutional after considering five factors. But I don?t think the opinion is best read as holding that the constitutionality of federal programs is henceforth answered by applying a five-factor test. To see why, I think it?s helpful to realize how far divorced was the law in Comstock from any actual enumerated power in the Constitution. Comstock considered a federal civil-commitment statute that authorized the federal government to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released. The Supreme Court held that this was a ?necessary and proper? law within the power of Congress:

[T]he statute is a ?necessary and proper? means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. The Constitution consequently authorizes Congress to enact the statute.

Notably, the Comstock opinion didn?t even bother to link that means with an actual enumerated power, such as regulating interstate commerce. Rather, the civil commitment law was ?necessary and proper? because under the five factors it was a necessary and proper part of the federal criminal justice system as a whole ? and the federal criminal justice system as a whole was itself an unquestioned part of the means of enforcing the actual enumerated powers in the the Constitution. It?s in that context that the Court looked to the five factors. 

If I?m right about that, then no such gymnastics such as the five-factor analysis would seem to be needed when assessing whether the individual mandate is ?necessary and proper? to carry out an actual enumerated power in the Constitution. The connection between a law requiring persons to purchase health insurance and regulating interstate commerce is much more direct than the connection between a law requiring the civil commitment of sexual predators who have finished a federal prison term and regulating interstate commerce. 

3) Finally, much of Ilya?s reply is addressed to whether my tentative view is a ?slam dunk.? But that?s not the question I?m considering. I?m only trying to identify the most faithful application of current doctrine, not classify that faithful application as merely ?right? versus a ?slam dunk.? To use a sports betting metaphor, I?m trying to figure out which team should win rather than debate the spread. 

Full post as published by The Volokh Conspiracy on October 06, 2010 (boomark / email).