Legal Commentary

Kurt Lash on Judge Hudson and the Necessary and Proper Clause

By Randy Barnett

My friend, University of Illinois law professor Kurt Lash, has written a comment on yesterday?s decision by Judge Hudson that was inspired by Orin?s critique. I am happy to post it here on his behalf.

Critics of Judge Henry E. Hudson?s decision invalidating the health insurance mandate have accused him of failing to consider the independent effect of the Necessary and Proper Clause. The criticism is based on a single passage in which Judge Hudson states that the same reasons that render the insurance mandate beyond Congress?s Commerce powers also place it beyond the reach of the Necessary and Proper Clause. When this particular passage is viewed in the context of his larger argument, however, it is clear that Judge Hudson did not ignore the Clause or dismiss the concept of implied congressional power. Instead, he simply noted that assertions of unlimited federal power are invalid under either the Commerce Power or the Necessary and Proper Clause.

Here is the criticized passage:

?Because an individual?s personal decision to purchase?or decline to purchase?health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary. This clause grants Congress broad authority to pass laws in furtherance of its constitutionally-enumerated powers. This authority may only be constitutionally deployed when tethered to a lawful exercise of an enumerated power. As Chief Justice Marshall noted in McCulloch, it must be within ?the letter and spirit of the constitution.? The Minimum Essential Coverage Provision is neither within the letter nor the spirit of the Constitution. Therefore, the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce.?

If viewed alone, this passage could be read to suggest that the Necessary and Proper Clause adds nothing to those powers expressly granted in the Constitution. This, in turn, seems to violate the standard understanding of implied federal power contained in canonical decisions like McCulloch v. Maryland. In McCulloch, Chief Justice John Marshall defended the doctrine of implied authority to use whatever means are necessary and proper to advance an enumerated end. Thus, even if one concludes that Congress has no express authority to take a particular action, it remains a separate question whether its action can be justified as an implied power under the Necessary and Proper Clause.

A closer look at Judge Hudson?s opinion, however, shows that he did not conflate the concepts of express and implied powers, nor did he deny the concept of implied federal power under the Necessary and Proper Clause. In fact, Judge Hudson clearly embraced the standard understanding of the Clause. According to Hudson, ?[a]lthough the Necessary and Proper Clause vests Congress with broad authority to exercise means, which are not themselves an enumerated power, to implement legislation, it is not without limitation.?

This is a key assertion in Hudson?s opinion?one that he makes in regard to both the Commerce Clause and the Necessary and Proper Clause. If upholding the individual insurance mandate required an interpretation of federal power that removed all serious limits on federal authority, then such an interpretation could not be correct under a Constitution of limited federal power. According to Hudson, ?the same reasoning,? which supported the mandate ?could apply to transportation, housing, or nutritional decisions. This broad definition of the economic activity subject to congressional regulation lacks logical limitation.? Any interpretation of federal power that has no logical limit cannot be correct, regardless of the textual source of such power. As Hudson puts it, [the Necessary and Proper Clause] is not unbridled.? In support of this standard reading of the Clause, Judge Hudson quotes John Marshall?s declaration in McCulloch that all claims of federal power must fall ?within the letter and spirit of the constitution.? According to Hudson, claims of unlimited power cannot fall within the document?s ?letter and spirit,? whether by way of the Commerce Clause or by way of the Necessary and Proper Clause.

In short, Judge Hudson did not ignore the Necessary and Proper Clause, nor did he reduce the Clause to a nullity. He simply concluded that assertions of unlimited power fall beyond any reasonable interpretation of congressional power, whatever its purported source.

I plan to address this issue soon, but I need to get some exams graded before I head to Pensacola to attend the argument in the 20 AG?s challenge. Yesterday?s excitement knocked me a bit off schedule. As did writing my comment for the New York Times? ?Room for Debate? feature, which you can read here here.

Full post as published by The Volokh Conspiracy on December 14, 2010 (boomark / email).