What the Solicitor General Should have Said to Justice Scalia

March 30, 2012
Guest Post

By Rebecca L. Brown, Newton Professor of Constitutional Law at the USC Gould School of Law


During Tuesday’s argument, Justice Scalia asked whether the individual mandate, even if “necessary,” was also “proper.” He may well have had good reasons to focus on this language, and the Necessary and Proper Clause, to which it refers.

In 2005, Justice Scalia wrote separately in a Commerce Clause case to emphasize that conduct can be regulated if it is “an essential part of a larger regulation of economic activity….”  He added, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” The question in the case, Gonzales v. Raich, was whether the federal drug laws could reach the cultivation and possession of marijuana for personal use as authorized by state law. Justice Scalia wrote that, when the federal government puts in place a comprehensive regulatory scheme that falls within the power to regulate interstate commerce (such as the interstate drug laws) then it may also impose additional requirements, even over matters that it could not regulate in isolation (such as wholly intrastate, non-commercial activity, like the growing of marijuana)—if those additional requirements are “necessary and proper” to effectuate the larger federal scheme.   

Many of us read that plausible analysis to suggest an analogous approach to the Affordable Care Act. Congress has unquestioned authority to regulate the interstate and commercial matters of health care and insurance. In turn, as Justice Scalia made clear in Raich, additional rules that are necessary and proper to the functioning of the overall system of regulating those markets can be constitutionally adopted by Congress-- even if those additional rules might be of questionable validity if passed in isolation. 

There is no dispute that the individual mandate is necessary, even essential, to effectuate the congressional policy of requiring insurers to offer coverage without regard to pre-existing conditions. Without the individual mandate, people would be free to wait to buy insurance until they needed expensive medical care, which would undercut the role of insurance as a pooling of risk. Assuming, then, that Justice Scalia would maintain consistency with his prior views, many thought that he could be counted on as a vote to uphold the individual mandate.

But, apparently realizing the import of his prior opinion, Justice Scalia on Tuesday laid the groundwork for backing away from it. While conceding that the individual mandate is “necessary” to the federal scheme, he questioned whether it is also “proper.” Why might it not be proper? In an exercise of utterly circular reasoning, Justice Scalia suggested that it might not be “proper” because it goes beyond the limits of Congress’s limited powers.   

“Proper” has a very different — non-circular -- meaning, as applied by Justice Scalia in Raich, where he invoked the famous quotation from Chief Justice Marshall on the meaning of “proper”:  “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.”  “Proper,” then, refers to the measure’s efficacy in achieving the end, as well as ensuring that it does not run afoul of the Bill of Rights or other prohibitory provisions in the Constitution. 

Justice Scalia now suggests that there may be such a prohibitory provision, not express but implied, “that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government.”  In other words, if a law does not qualify as a valid exercise of the commerce power it is necessarily also not “proper”, even if essential to effectuate a valid federal program.    

This reading would make the Necessary and Proper Clause completely superfluous.  For that reason, the Supreme Court chose not to endorse a related argument in 1819, when it emphasized that the Clause purported to be “an additional power, not a restriction on those already granted.”  

This reading would also conflict with Justice Scalia’s analysis in Raich. Both the individual mandate and the marijuana case involve a claim that a federal law falls short of satisfying the requirements of the Commerce Clause:  for the individual mandate, the claim is that the law does not regulate commerce because it requires entry into commerce; in the marijuana case, the claim was that the law regulated behavior that was neither commerce nor among the states.  In both cases, the claim is that an element of “regulate commerce among the states” is missing. 

Seven years ago, Justice Scalia thought that the Necessary and Proper Clause authorized the federal government to regulate in support of a larger statutory scheme, even if an element of commerce power authority is missing.  On Tuesday, the Solicitor General should have urged Justice Scalia not to allow his grumpiness with the individual mandate to cloud his memory of that principle and the important reconciliation of constitutional values that it represents.