The flames of controversy leap higher each day as the American public waits for the U.S. Supreme Court to decide whether the Affordable Care Act’s individual mandate–which requires individuals to buy health insurance or pay a penalty–is constitutional.
Many have blasted the mandate as egregiously violating the Constitution and its principles, but they’re mistaken. The individual mandate may be an unwise government overreach, but it’s perfectly constitutional under the Necessary and Proper clause of the Constitution.
The Commerce Clause gives Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” while the Necessary and Proper Clause empowers Congress “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Throughout the years, scholars have debated the meaning of the phrases in both of these clauses, and have arrived at both narrow and broad interpretations. In McCulloch v. Maryland, Chief Justice John Marshall cited the Necessary and Proper Clause and set the precedent for a broad interpretation of the clause.
Regarding the Commerce Clause, the Supreme Court took a restrictive view of the government’s power in the years preceding the New Deal era, but when that era dawned, the Court shifted gears and interpreted both the Commerce and Necessary and Proper Clauses broadly. In later years, the Rehnquist Court would limit some of Congress’s power under the Commerce Clause.
Even with all of these different interpretations, however, the Supreme Court can still legitimately interpret the individual mandate to be constitutional under the Commerce Clause–if attended by the Necessary and Proper Clause.
To understand why, the phrases of the clause must be understood. Scholars note that regulations involve rules, and sometimes requirements, while “commerce” has historically been interpreted to mean “market-oriented activity,” according to some Constitutional scholars.
Furthermore, some scholars observe that “among,” of course, is quite different from “between,” and thus doesn’t limit Congress’s powers to regulate interstate commerce. With these historic interpretations in mind, the mandate can easily be analyzed.
If there were no Necessary and Proper Clause, then the mandate would clearly be unconstitutional. Yes, the government could require people to purchase something under the Commerce Clause, but only if it’s oriented to activity in the market.
In this case, those who aren’t buying health insurance aren’t actually in the market for health care, so they aren’t engaging in activities geared toward that market.
It’s important to realize health care services are (for most people) occasional, and the only way Congress could legitimately regulate the market under the Commerce Clause is if it regulates the activity when it’s actually oriented toward the health care market, because when people aren’t actually receiving or paying for health care services, they aren’t in that market.
Thus, if only the Commerce Clause were to be considered, the government could not regulate activity because it isn’t oriented to the specific market that they seek to regulate.
But, the Necessary and Proper Clause throws a wrench into the whole debate. If Congress believes that the mandate is necessary and proper for executing other provisions of the Affordable Care Act, then they have the power constitutionally to do so.
One could argue that the mandate isn’t actually necessary and proper, but clearly Congress determined that it is in order to execute other provisions of the law, which do, in fact, regulate commerce.
Since that clause is used in relation to Congress’s powers, Congress has the power to determine what’s necessary and proper, not the Supreme Court. (The President could veto it if he disagrees, but he didn’t in this case.)
So if the Supreme Court invalidates this provision of the health care legislation, they will have indeed turned the Constitution into, to use Jefferson’s words, “a mere thing of wax.” It wouldn’t be the first time they have done such a thing.
Leonardo Poareo is a senior journalism major and contributing writer for the Daily 49er.
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