But I'm back at the point of confusion I wrote about in December and this ruling has thrown it into even starker relief. As we all know, the Constitution grants Congress the power "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."
I'm certainly not a lawyer but the interpretation of this provision seems to me to be fairly well-established. As Madison wrote in Federalist 44:
No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. Had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility; and the real inconveniency would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the Union
Similarly, in 1819 the Marshall Court concluded the following in McCulloch v. Maryland:
We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.
And, more to the point I'm going to come to in a moment, Antonin Scalia summed up the current understanding of the Necessary and Proper clause's application to the Commerce Clause just a few years ago:
As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, “it possesses every power needed to make that regulation effective.” 315 U.S., at 118—119. [...]
Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce 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. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce.
Now let's switch gears for a second. It seems to be the case that both the federal judges who ruled against the ACA and even the plaintiffs who brought the lawsuits to them largely accept the insurance market regulations in the ACA, except for the individual mandate, of course. I quoted from the Virginia judge's ruling in December:
The Commonwealth does not appear to challenge the aggregate effect of the many moving parts of the ACA on interstate commerce. Its lens is narrowly focused on the enforcement mechanism to which it is hinged, the Minimum Essential Coverage Provision.
And, similarly, the ruling out of Florida this week concedes:
In light of United States v. South-Eastern Underwriters, 322 U.S. 533, 64 S. Ct. 1162, 88 L. Ed. 1440 (1944), 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."
As I've pointed out on here before (and opponents of the law have been eager to point out all along), the ACA is a big law. It's a lot of pages. It's a lot of words. It's a lot of policy. The charge from disgruntled liberals that the ACA is merely "health insurance reform, not health care reform" is, I think, misguided. Certainly one can imagine more sweeping, immediate, and fundamental reform frameworks than that offered by the ACA. But that's not the same as implying the ACA addresses only health insurance. Indeed, the law contains ten titles:
TITLE I--QUALITY, AFFORDABLE HEALTH CARE FOR ALL AMERICANS
TITLE II--ROLE OF PUBLIC PROGRAMS
TITLE III--IMPROVING THE QUALITY AND EFFICIENCY OF HEALTH CARE
TITLE IV--PREVENTION OF CHRONIC DISEASE AND IMPROVING PUBLIC HEALTH
TITLE V--HEALTH CARE WORKFORCE
TITLE VI--TRANSPARENCY AND PROGRAM INTEGRITY
TITLE VII--IMPROVING ACCESS TO INNOVATIVE MEDICAL THERAPIES
TITLE VIII--CLASS ACT
TITLE IX--REVENUE PROVISIONS
TITLE X--STRENGTHENING QUALITY, AFFORDABLE HEALTH CARE FOR ALL AMERICANS
The reforms of the private insurance market are contained entirely in Title I. The individual mandate (also, of course, contained in Title I) is in there because of those Title I provisions. No one wants the individual mandate to be in the law, it's not favored as a policy unto itself. Obama the candidate sure didn't like it. It remains virtually the only major, visible component of the law that the majority of Americans dislike; it's not much of a stretch to think that the negative impression of the ACA lingering in the minds of 50-60% of Americans is due in large part to the presence of the individual mandate. Assuming politicians are self-interested and wish to avoid shellackings at the polls, one might think that if they could reliably further their health reform agenda without it, they would.
The mandate's presence in the law isn't aesthetic and it isn't ideological, it's functional. Preventing insurers from turning people away and forbidding them from charging the sick higher premiums gives the healthy among us license to drop out of health insurance pools until we get sick (at which point we can opt back in without any penalties or negative repercussions for our irresponsibility), a phenomenon known as adverse selection. Enabling this free-riding threatens to destabilize health insurance markets. For a taste of this, we need look no further than another piece of the ACA itself. The ACA instituted guaranteed issue rules immediately for one very small segment of the population: children obtaining insurance independently from their parents. Insurers offering child-only policies can no longer turn away kids with pre-existing conditions. The result of this small gesture--which opens the door to adverse selection, even though some tools for fighting it, like charging sick kids more than healthy kids, are still available to insurers--has, in many states, been market destabilization.
So let's get back to Vinson's ruling. In throwing out the individual mandate as unconstitutional, he signals that he accepts it's essential for making the rest of the insurance reforms work:
In other words, the individual mandate is indisputably necessary to the Act's insurance market reforms, which are in turn, indisputably necessary to the purpose of the Act.
He has to accept that if he's going to take the extreme step of concluding that overturning the mandate requires overturning the entire law. And he does just that, suggesting that the individual mandate cannot be severed from the rest of the law ("This conclusion is reached with full appreciation for the 'normal rule' that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute, but non-severability is required based on the unique facts of this case and the particular aspects of the Act.").
Now, you might say, even if the mandate can't be severed from the insurance market reforms it was included to protect, i.e. Title I of the ACA, can't it be severed from Titles II-X of the law? I had the same thought and the answer seems to be "presumably." But Vinson doesn't stop at Title I even though the mandate's effect is entirely restricted to directly affecting the provisions of Title I because, in his estimation, if Congress had known that the individual mandate would get thrown out, they might not have enacted any of the provisions in the law, even the parts of the law that have nothing to do with the private insurance market reforms, i.e. all of the parts outside of Title I--at the very least, he can't be expected to sort out the parts they would have enacted anyway from parts they wouldn't ("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, and the able-to-stand-alone from the unable-to-stand-alone.").
But it seems to me that now we're in an odd place. The insurance market reforms (aside from the individual mandate) are accepted by everyone to be an appropriate exercise of Congress's power under the Commerce Clause. And Vinson accepts that the mandate is "indisputably necessary to the Act's insurance market reforms" because that's the first link in the logical chain he tries to build to justify tossing out the entire law, which he acknowledges is a departure from the "normal rule" that would oblige him to nullify only the individual mandate.
Referring back to the quotes explaining the Necessary and Proper Clause I posted above (particularly Scalia's succinct summation of where it stands in relation to Commerce Clause powers), it seems to me that accepting it's "indisputably necessary" for implementing a Commerce Clause-sanctioned insurance regulatory scheme ought to be enough for it to pass constitutional muster. In fact, it seems to me that, as a matter of logic, any argument that nullifying the mandate must require throwing out the rest of the reform law because the two cannot be functionally disentangled itself implies that the mandate is constitutional under the Necessary and Proper Clause.
Despite accepting the "necessary" half of the Necessary and Proper argument for the individual mandate, Vinson ultimately rejects the N&P argument for the mandate's constitutionality for reasons that appear to me to be more ideological than logical: the mandate "cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be 'proper.'"
The thought process here hinges on the notion that if the individual mandate is allowed through this argument, then effectively the federal government's power becomes limitless. In that sense, it's similar to the argument that if the mandate is constitutional, then the federal government can require you to purchase anything: vegetables, tea, cars, whatever. To argue this point, Vinson draws upon a case decided by the Supreme Court in 1997, Printz v. United States. This case revolved around a challenge to a provision of the Brady gun control law that essentially drafted state officials to handle the background check component of the law until the feds were prepared to take on that responsibility:
Brady Handgun Violence Prevention Act provisions require the Attorney General to establish a national system for instantly checking prospective handgun purchasers' backgrounds, note following 18 U.S.C. § 922 and command the "chief law enforcement officer" (CLEO) of each local jurisdiction to conduct such checks and perform related tasks on an interim basis until the national system becomes operative
In the Supreme Court's decision it held that forcing state officials to act as agents of the federal government to conduct those background checks wasn't "proper" under the N&P clause:
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." The Federalist No. 33, at 204 (A. Hamilton). See Lawson & Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 297-326, 330-333 (1993). We in fact answered the dissent's Necessary and Proper Clause argument in New York: "[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. . . . [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments' regulation of interstate commerce." 505 U.S., at 166 .
In quoting this passage in his ruling, Vinson truncates the phrase "violates the principle of state sovereignty reflected in the various constitutional provisions we mentioned earlier" to "[violates other Constitutional principle]." Clearly he's taking it for granted that the principle of "limited government of enumerated powers" can easily be substituted in here for the principle that states retain sovereignty in our federal system and can't be compelled to do the bidding of federal law. Assuming that notion is beyond reproach, the argument still falls apart if allowing an individual mandate under the N&P clause doesn't actually offer the government near limitless power.
Consider again Scalia's point that a power sanctioned by the N&P Clause "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." That sounds about right to me. What that reminds us is that a N&P power (whatever it might be in a given circumstance) is always Robin to some other policy's Batman. It can't exist in isolation. So, for example, if you introduced a piece of legislation that consisted of one sentence instituting an individual mandate to buy insurance, it wouldn't work under this argument. It must be part of a package deal; it has to be included because it's necessary and proper for something else to function effectively. And that something else has to be plainly constitutional under one of the enumerated powers.
For the same reason, accepting this line of argument doesn't afford the federal government the power to require you to, for example, buy tea. In order to pass an individual mandate for the purchase of tea using the argument that the provision is justified under the Necessary and Proper Clause, you'd have to pass it as part of a package. And the rest of that package must 1) be plainly constitutional (say, under the Commerce Clause) and 2) dysfunctional without the tea mandate. Can you think up a regulatory scheme authorized by the Commerce Clause that plainly--without logical leaps, extreme contortions, or other indefensibles--requires the purchase of tea in order to function and achieve its goals? Perhaps I'm short on imagination but I can't.
Insurance regulations that institute guaranteed issue and community rating laws (i.e. prohibitions on turning people away or charging them differently based on health status or medical history) are 1) constitutional under the Commerce Clause and 2) potentially fatally undermined by adverse selection. That's why a remedy--a deterrent to adverse selection--would be allowed under the N&P clause. That remedy would be both necessary and proper for implementing those insurance reforms without risking that market destabilization I mentioned above. But adverse selection is, I believe, a relatively unique phenomenon and one limited to special markets like insurance markets. I think finding an equivalent phenomenon created by a particular regulatory structure in a more traditional market, like the market for tea, would be difficult. And yet without it you can't pass an individual mandate to purchase tea. So I don't buy the argument that accepting the legitimacy of the individual mandate for health insurance in this particular (rather unique) instance necessarily does away with the principle of "limited government of enumerated powers."
So, as I said, I'm back at the point of confusion I've been at all along: since the N&P argument for the constitutionality of the individual mandate in the ACA tracks perfectly with the actual policy reasons it's in the law in the first place (despite its political unpopularity, it's actually necessary to ensure that the insurance market reforms work properly) and doesn't supply the federal government with limitless powers, why is this argument not enough to give the individual mandate the green light? And if for some reason it doesn't fly, why doesn't that failure automatically insulate the rest of the law from the mandate's nullification by severing it?
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