One of the amicus curiae briefs illustrates how using the Necessary and Proper Clause in the manner as suggested by the defendants would vitiate the enumerated powers principle (doc. 119). It points out that the defendants are essentially admitting that the Act will have serious negative consequences, e.g. encouraging people to forego health insurance until medical services are needed, increasing premiums and costs for everyone, and thereby bankrupting the health insurance industry--unless the individual mandate is imposed. Thus, rather than being used to implement or facilitate enforcement of the Act's insurance industry reforms, the individual mandate is actually being used as the means to avoid the adverse consequences of the Act itself. Such an application of the Necessary and Proper Clause would have the perverse effect of enabling Congress to pass ill-conceived, or economically disruptive statutes, secure in the knowledge that the more dysfunctional the results of the statute are, the more essential or "necessary" the statutory fix would be. Under such a rationale, the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause. This result would, of course, expand the Necessary and Proper Clause far beyond its original meaning, and allow Congress to exceed the powers specifically enumerated in Article I. Surely this is not what the Founders anticipated, nor how that Clause should operate.
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If Congress is allowed to define the scope of its power merely by arguing that a provision is "necessary" to avoid the negative consequences that will potentially flow from its own statutory enactments, the Necessary and Proper Clause runs the risk of ceasing to be the "perfectly harmless" part of the Constitution that Hamilton assured us it was, and moves that much closer to becoming the "hideous monster [with] devouring jaws" that he assured us it was not.
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."
Legislation often has unintended consequences so I agree with the sentiment here insofar as any decision upholding the mandate on N&P grounds would have to do a good job thinking through some tests or conditions for understanding the word "necessary" in future applications to similar cases. As I said in the last post, however, I don't think it should be absurdly difficult to boil down to basics what separates this application to a law involving health insurance markets from future silly attempts to apply this logic to tea or car markets.
All that aside, the argument here seems to be: "Yes, the mandate is necessary but only because the rest of the law makes it so! Therefore, by [my] definition, it must be improper!"
Is he saying here that the very fact that the rest of the law makes the mandate necessary is itself the very thing that makes the mandate improper? That is, if a provision is necessary for a law to function effectively (i.e. without self-imposed negative consequences), it is by definition improper.
Is it just me, or is that absurd?
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