Necessary and Proper

The hysteria regarding the “individual mandate” portion of the Health Care Reform Act is not surprising. The right becomes hysterical prior to every liberal advance. Don’t believe me, click here.

What interested me today is the following argument articulated by the Attorney General of the Commonwealth of Virginia – If Congress has the power to force individuals to purchase a product from a private vendor, then it can force individuals to do anything it wants and freedom is thereby destroyed.

Let me put this argument, in all its various versions, to bed. Under the Commerce Clause, Congress has the authority to regulate activities “substantially affecting interstate commerce.” The first thing to note about this phrase is that each of its elements limits Congress’ regulatory power. “Substantially,” “affect,” “interstate,” “commerce.” An activity has to fit each of these four criteria for Congress to have Commerce Clause jurisdiction over it.

(“Jurisdiction,” by the way, comes from two latin words – “Juris” which means law, and “Dicta” which means speech. Taken literally, “jurisdiction” is the power to say what the law is).

The “Necessary and Proper” clause expands Congress’ commerce clause jurisdiction to any activity, commercial and noncommercial, interstate and intrastate, even to activity that has no affect on interstate commerce – but only if the activity being regulated is part of a broader regulatory scheme and is necessary to effectuate legitimate commerce clause ends.

In other words, Congress has no power to regulate activities unless these activities substantially affect interstate commerce. The Supreme Court, for example, has struck down congressionally enacted laws banning firearms within 500 feet of schools, and granting federal civil remedies to victims of domestic violence, because these laws were too attenuated from, and had too little affect upon, interstate commerce.

However, if an activity (such as insurance companies denying people coverage, or pricing individuals out of the market, or capping lifetime benefits) substantially affects interstate commerce – and no one denies that these practices substantially affect interstate commerce – the “Necessary and Proper” clause allows Congress to regulate any activity what so ever – including forcing individuals to purchase health insurance - but only if that regulation is necessary to effectuate the desired commercial reforms (which, as I explained yesterday, the individual mandate clearly is).

That’s quite a sentence – but I’m going with it.

Anyway, all this talk about the government forcing you to purchase and eat vegetables or to buy a car from Chevrolet is nonsense. The government mandating our purchase of a private product is novel – but, in this case, it is well within established Constitutional jurisprudence limiting congressional power.

Your freedoms are safe. Enjoy your weekend.

Joe H.