Legal Commentary

The Significant Error in Judge Hudson?s Opinion

By Orin Kerr

I?ve had a chance to read Judge Hudson?s opinion, and it seems to me it has a fairly obvious and quite significant error. Judge Hudson assumes that the power granted to Congress by the Necessary and Proper Clause ? ?To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers? ? does not expand Congress?s power beyond the Commerce Clause itself. The key line is on page 18:

If a person?s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Judge Hudson does not cite any authority for this conclusion: He seems to believe it is required by logic. But it is incorrect. The point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I. If you say, as a matter of ?logic? or otherwise, that the Necessary and Proper Clause only permits Congress to regulate using means that are themselves covered by the Commerce Clause, then the Necessary and Proper Clause is rendered a nullity. But that?s not how the Supreme Court has interpreted the Clause, from Chief Justice Marshall onwards. Indeed, as far as I know, not even the most vociferous critics of the mandate have suggested that the Necessary and Proper Clause can be read this way.

Given that existing Supreme Court caselaw gives the federal government a fairly straightforward argument in support of the mandate under the Necessary and Proper clause, Judge Hudson?s error leads him to assume away as a matter of ?logic? what is the major question in the case. That is unfortunate, I think.

Full post as published by The Volokh Conspiracy on December 13, 2010 (boomark / email).