Category Archives: Necessary and Proper Clause

Does That Blow Your Mind?

As a former student of law, it sure blows mine.

What, you ask?

President Obama’s claim that if the United States Supreme Court judicially strikes down Obamacare, this would be an “unprecedented, extraordinary step.”

Since 1803, the United States Supreme Court’s main job is to strike down unconstitutional laws.

Oh, but this case would be unprecedented and extraordinary.  /please read italicized words in the most sarcastic manner possible/

This is what happens when we keep ceding public opinion to the so-called experts.

How about a second opinion?  How about another expert’s opinion?

Judge Jerry E. Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?

Dana Lydia Kaersvang (DOJ Attorney): Yes, your honor. Of course, there would need to be a severability analysis, but yes.

Smith: I’m referring to statements by the President in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed – he was referring, of course, to Obamacare – what he termed broad consensus in majorities in both houses of Congress.

That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.

Hoo, boy, that just happened.

If the typical uninformed voter doesn’t understand why Obamacare is unconstitutional, we can understand why.  The Constitution has been creatively interpreted to accommodate federal programs for a very long time, after all.

But that’s what makes the President’s statements so shameful.  As a former student of law, he should know better than to stretch beyond the bounds of judicial interpretation.

If he does know better, then he is not upholding the document he swore to uphold.  Do you know what that means?  “Under the laws of a state it may be considered treason or a high crime to betray a sworn oath of office.”

Just sayin’.

Is That The Sound of Croaking Frogs I Hear?

So . . . with a hot mic, the President accidentally proves how comfortable he is with the idea of telling the voters he’ll do one thing, when he really intends to do something else.


In a sane world, this revelation would create more of an uproar than that Casey Anthony acquittal did.

Alas, we don’t live in a sane world.  Outside the conservative blogosphere, mostly we just hear crickets chirping and frogs croaking.

Speaking of frogs, I recently checked out a collection of Aesop fables.  One of the fables is called The Frogs Who Desired A King.  Are you familiar with that one?

Here is Caxton’s original translation, circa 1484.  It’s my favorite version, but man oh man that’s some crazy Olde Englishe.  Let me rephrase:

There were once some frogs who lived in liberty, but they wanted a king.  They asked Jupiter to give them a king.  They asked in one voice–no dissent, so it was all democratic and everything.   Now, Jupiter knew these frogs weren’t the smartest bunch.  So to placate them, he sent a piece of wood which splashed loudly in the pond.

This commotion scared the frogs at first.  They approached their king cautiously, to make obeisance to him.  When they realized their new ruler was just an ineffective lump of wood, they weren’t happy.  They went back to Jupiter and asked for a better king.  Jupiter was like, fine.  And he sent a Heron to be their king.

The Heron flew down and began to eat the frogs, one after another.  The frogs began to cry, and they begged Jupiter to deliver them from the throat of this tyrant.  Jupiter replied, tough.  The king which you demanded shall be your master.

Today, I was over at Disrupt the Narrative, watching footage of demonstrations in front of the Supreme Court building.  A group of folks were chanting “We . . . love . . . Obamacare” to the beat of a tambourine, and boy.  They sure sounded like Aesop’s frogs.  I just hope that Jupiter does not give them what they are asking for.

Caxton’s version is my favorite because of the way he phrased the moral of the story.  I don’t think the Olde Englishe needs much updating to be understood:

For when men have that which men oughte to have, they ought to be joyeful and glad. And he that hath lyberte ought to kepe it well.  For nothyng is better than lyberte.  For lyberte should not be well sold for alle the gold and sylver of all the world.

More On That Vinson Ruling (Updated)

I spent so much time commenting on another blog, that I’m going to post it here too.  Seems a waste of time otherwise. 

Mahablog is a long-running and well-established blog, so I keep running into links to it.  I’ve followed the links enough times to become a sporadic reader.  For whatever reason, I find her blanket right-wing insults, well, less insulting than most.  I cannot even begin to fathom why.  Maybe it’s that whole serene buddhist vibe.  So, when I’m in the mood to see what the left is saying, chances are good that I’ll start with Barbara O’Brien.

Because this post began as a comment, it is less formal and polished than I prefer, but oh well.  I’m outta time.  Here it is:

The reason the health insurance mandate is not considered a tax is because the bill was crafted in a manner to avoid being considered a tax.  This was to help sell the bill to the American people.  I remember the Pres telling Stephanopoulos the mandate is not a tax.

Judge Vinson did not ignore the Necessary and Proper Clause.  He did not argue that Congress can’t make laws generally.  They just have to do so within constitutional constraints. 

He interprets the N & P Clause differently from you, and relies on case law in doing so.  It appears you interpret that clause to be a blanket law-making ability, above and beyond the enumerated powers.  Judge Vinson’s treatment of the N & P Clause begins on page 56 of his opinion.  He analyzes the use of N & P for the mandate with the recent case of US v. Comstock’s 5 considerations.  He concludes that it fails at least 2 considerations.  He points out that Comstock is not a complete reversal of prior Sup Ct precedents. 

As Vinson explains, “The Supreme Court has repeatedly held, and the emphasized text makes clear, that the Clause is not an independent source of federal power.”

Vinson did not ignore precedent.  He analyzed the case under Maryland v. McCullough.  You see, the idea of implied powers is not the same as a blanket ability to write any law Congress thinks is good for the country. 

Under McCullough’s famous quote, a law must still be “appropriate,” and “not inconsistent with the letter and the spirit of the Constitution.”  Vinson concluded that the mandate is inconsistent and inappropriate.

I understand you disagree with that analysis, but disagreement does not make Judge Vinson’s ruling absurd, or stupid, or tortured, or a train wreck, or the mistake of a man who doesn’t know the Constitution from refrigerator mold.

Your best argument is through the Orin Kerr post that you linked above, The Weak Link In Judge Vinson’s Opinion.  His point is not exactly a ringing endorsement of the mandate, though. 

Basically, Kerr points out that Judge Vinson relied too heavily on the dissent and concurrence in the Raich case.  Since Raich is recent, binding precedent, perhaps Vinson should have said something along these lines: 

“Well, the Supreme Court majority ruled in Raich that the Commerce Clause has unlimited elasticity.  Therefore I am forced to rule against the plaintiffs, but I want the Supreme Court to know that they should use the following analysis to limit Raich in the future . . . .”

I have an honest, completely un-rhetorical question for all readers.  If this health insurance mandate is not the limit of congressional power under the Commerce Clause, what will the new limit be?

Any thoughts on this are appreciated.  What, to your mind, is the best meaning of the phrase “interstate commerce?”

P.S. My first post on the Vinson ruling is here.

UPDATE:  Once again, if I don’t post my comment here, then it is likely a waste of time.  So here is the latest:

Thanks for your quick feedback. You say Con Law experts who conclude Vinson is wrong are “armies” and “truckloads.” And yet you quote Lawrence Tribe, Amar, and this ACS Lazurus guy.

These few don’t qualify as truckloads or armies, me thinks. A pointless exercise anyway, since for every legally trained person you could name in favor of Obamacare, I could find one constitutionally opposed.

Your latest comment seems like a muddling of two separate issues: 1) whether the insurance mandate is constitutional, and 2) whether the district court judge strayed from binding legal predecent. We’ve both established that Kerr makes a valid point regarding #2, but we seem to be making little headway regarding #1.

Maha  tells me, “I don’t have time to write the Cliff’s Notes synopsis for you if you’re too lazy to read the stuff.”

No, I read the stuff but I’m not impressed by them, except for Kerr. I wonder though, are you too lazy to read Vinson’s opinion thoroughly yourself and base your opinion on your own reading?

The thing is, Tribe and the rest don’t matter to me. I’ve read the opinion myself and it is thorough and convincing, in light of Sup Court jurisprudence on the Commerce Clause and the Necessary and Proper Clause.

Raich is certainly relevant here, but not necessarily dispositive. The facts are different enough for me to reiterate my earlier point:

“This mandate is a new issue, never before adjudicated. So to a certain extent, the district courts are fumbling in the dark, and have to do a little of their own critical thinking. Hence the fact that two have said yes it’s constitutional, and two have said no.”

Maha wants to rely on experts here, because:

“I’m not a lawyer, and neither are you. These issues are not simple to understand. I took courses in constitutional history and principles a long time ago, and so I understand a lot of this better than most non-experts, but I don’t presume to have perfect knowledge without doing some studying first. I was showing you the research I had already done.”

But at this point, it is simple. Either the federal gov’t powers are limited, or they are limitless. Either the federal gov’t powers are enumerated, or they are innumerable. And so I ask again, if we are governed by a limited government, then what is its limit under the Commerce Clause if it can mandate that we buy a product or service?

You don’t have to be an expert to ask or answer that question critically. You don’t have to be a lawyer. You don’t even have to be legally trained. It sounds like you want me to discount my analysis because I’m “not a lawyer.”

Ah, but if I confess to a prior legal career, you’ll then simply dismiss my opinion as swiftly as you’ve dismissed Vinson’s, even though his legal training is not in dispute.

In other words, I reckon, why am I bothering to argue?

FINAL UPDATE (I hope):  Really it’s been a rather fun debate.  It would be better if the Maha could resist the temptation to continually insult me, but oh well.  I guess that’s how it is when someone finds you completely contemptible.  Here’s my last comment over at hers:

Ah ha, I get it now, your experts are better than mine.  Of course.  Ha.

I think I’ll borrow a sentence of yours now:  This has already been discussed several times, but I’ll state it again, even though “I despair that you will understand any of this.”

I do get the principle of implied powers.  Saying that Congress’ powers are enumerated, ie, limited, is not the same as saying “there is no such thing as implied powers.”

Yes there are implied powers.  I just don’t think the mandate is one of ’em.  Under McCullough v. Maryland, even a law passed with implied powers still has to be appropriate and not inconsistent with the letter and spirit of the Constitution.

This is the point where our analyses diverge.  You find it to be appropriate and consistent with your view of the Constitution.  I do not.  Logic dictates that there must be a limit to Commerce Clause at some point, and so I really wish someone could hazard an answer to that question I keep asking:

If this health insurance mandate is not the limit of congressional power under the Commerce Clause, what will the new limit be?

Because if the answer is as I suspect–there is no limit–well then the Constitution can be used to support virtually any law that any Congress could conceive.  You know, in a few years when the teabaggers have taken over the House, Senate, and Presidency, that fact may worry you a bit.


I’ll finish by borrowing one more quote from you:

“But you don’t understand what those things mean. Vinson’s arguments are [not] persuasive to you because you don’t know enough about these constitutional principles to understand [how wonderful] Vinson’s decision is. Your saying what a [pile of crap] decision it is means absolutely nothing.”

Huh, that goes quite nicely both ways.

Judge Vinson’s Healthcare Ruling: The Cliffnotes

If you are a regular reader, you’ve probably noticed I’ve been phoning it in lately.  Humblest apologies.  I’ll spare you the excuses and the boring details of my everyday life (which form the basis of said excuses). 

Instead I’ll bore you with legal stuff.

I finally got around to reading Judge Vinson’s opinion in Florida v. The United States Department of Health and Human Services.  You know, the one that ruled Obamacare entirely unconstitutional.  If you haven’t read it yet, consider starting with the quotes and snippets below.  It’s a cliffnotes version, done purely as a public service of course.  All bolding is mine.

The biggest issue is whether Congress can regulate interstate commerce by making you buy something.  Obviously, Congress thinks it can:

The defendants contend . . . that despite the inarguable presence of activity in every Supreme Court case to date, activity is not required under the Commerce Clause. See Def. Mem. at 31 (maintaining that “there is no ‘activity’ clause in the constitution”). In fact, they go so far as to suggest that to impose such a requirement would be bold and radical. According to the defendants, because the Supreme Court has never identified a distinction between activity and inactivity as a limitation on Congress’ commerce power, to hold otherwise would “break new legal ground” and be “novel” and “unprecedented.” See Def. Opp. at 1,2, 16. First, it is interesting that the defendants — apparently believing the best defense is a good offense — would use the words “novel” and “unprecedented” since, as previously noted, those are the exact same words that the CRS and CBO used to describe the individual mandate before it became law.

Ha.  Isn’t this a common leftist tactic?  When arguing absolutely any political point whatsoever, they typically claim that the conservative side is guilty of whatever the left is actually doing.  Anyhoo, next comes the part where Judge Vinson says STFU.  Okay, I’m paraphrasing:

Furthermore, there is a simple and rather obvious reason why the Supreme Court has never distinguished between activity and inactivity before: it has not been called upon to consider the issue because, until now, Congress had never attempted to exercise its Commerce Clause power in such a way before.

Next, he discusses the point which simply cannot be logically refuted:  there has to be a limit to government control.  If there is no limit, then the federal government is totalitarian.  If this insurance mandate is not the limit, then what is?

If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power”[Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended. See id. at 592 (quoting Hamilton at the New York Convention that there would be just cause to reject the Constitution if it would allow the federal government to “penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals”) (Thomas, J., concurring).

The defendants argued that being uninsured for healthcare is “activity” under current Commerce Clause jurisprudence.  Their argument was partially based on the following logic:  living humans are always susceptible to unpredictable illness and injury, therefore no one can“opt out” of the health care market.  Judge Vinson points out the natural conclusion to this argument:

First, it is not at all clear whether or why the three allegedly unique factors of the health care market are Constitutionally significant. . . . After all, there are lots of markets — especially if defined broadly enough — that people cannot “opt out” of. For example, everyone must participate in the food market. Instead of attempting to control wheat supply by regulating the acreage and amount of wheat a farmer could grow as in Wickard, under this logic, Congress could more directly raise too-low wheat prices merely by increasing demand through mandating that every adult purchase and consume wheat bread daily, rationalized on the grounds that because everyone must participate in the market for food, non-consumers of wheat bread adversely affect prices in the wheat market.

So there you have it.  Why not?  If they can make you buy health insurance, why not make you buy wheat bread?  Or broccoli?  Or a house?

The defendants also argued that the failure to get insurance is an activity because it is an “economic decision” to pay for medical expenses later rather than now.  This is the argument that won the day for Obamacare in the Liberty University and Thomas More Society cases.  All Judge Vinson has to do in order to disprove this argument, is carry the logic a bit further down the road:

The problem with this legal rationale, however, is it would essentially have unlimited application. There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort. The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that — when aggregated with similar economic decisions — affect the price of that particular product or service and have a substantial effect on interstate commerce. To be sure, it is not difficult to identify an economic decision that has a cumulatively substantial effect on interstate commerce; rather, the difficult task is to find a decision that does not.

And in a footnote:  “As was discussed at the hearing, even personal decisions about whether to marry, whom to marry, or whether to have children could also be characterized as ‘economic decisions.'”

The important distinction is that “economic decisions” are a much broader and far-reaching category than are “activities that substantially affect interstate commerce.” While the latter necessarily encompasses the first, the reverse is not true. “Economic” cannot be equated to “commerce.” And “decisions” cannot be equated to “activities.” Every person throughout the course of his or her life makes hundreds or even thousands of life decisions that involve the same general sort of thought process that the defendants maintain is “economic activity.” There will be no stopping point if that should be deemed the equivalent of activity for Commerce Clause purposes.

As to the argument that the insurance mandate is a “necessary and proper” element to Obamacare, Judge Vinson explains:

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.

Once the insurance mandate was found to be an unconstitutional abuse of legislative power, the next question was whether this invalidates the whole law or just part of it.

At this point comes a morsel of delicious comedy:  the defendants unwittingly argued against severing the insurance mandate and upholding the rest of Obamacare.  You see, the defense argued that the mandate is both necessary and proper by asserting “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,” Judge Vinson responded before getting to the severability issue.


So, if the mandate is really so crucial to the law, then the whole law is gonna have to go in the round file.

Ha, ha.

Anyway, reasonable folks like me kept saying that the Obamacare bill was just too dang long, but nobody wanted to hear it.  Well, what do you think about your long-ass bill now, statists?

Going through the 2,700-page Act line-by-line, invalidating dozens (or hundreds) of some sections while retaining dozens (or hundreds) of others,would not only take considerable time and extensive briefing, but it would, in the end, be tantamount to rewriting a statute in an attempt to salvage it, which is foreclosed by Ayotte, supra. Courts should not even attempt to do that.

A thorough and excellent opinion, this is.  I do have one criticism, though.  The judge seems remarkably naive when he writes about

a long-standing presumption “that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction.” See Comm. on Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir.2008); accord Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n.8 (D.C. Cir.1985) (“declaratory judgment is, in a context such as this where federal officers are defendants, the practical equivalent of specific relief such as an injunction . . .since it must be presumed that federal officers will adhere to the law as declared by the court”) (Scalia, J.) (emphasis added). There is no reason to conclude that this presumption should not apply here.

Uh, there is too a reason to not presume things, Judge:  these people are completely drunk on power.