One Giant Leap for a Liberal

Part II of ACA Court Case Post


Necessary and Proper

The argument here is that Congress has the authority to regulate the health care market.  More specifically, it has the power to require insurance companies to accept all potential insurees.  To do this however, it needs to force all citizens to obtain insurance.  Otherwise people will wait until they need medical care and get insurance for it.  Therefore, Congress has the authority to force all citizens to obtain insurance.

Let's start with a clear example of the Necessary and Proper clause that few would argue with.  The Constitution explicitly grants the federal government the power to print and coin money.  Obviously, to print and coin money, the government needs equipment, therefore Congress is authorized to purchase such equipment.

There are a few distinctions to make between these two situations. First, the government needs to be granted a clear power.  The power to coin money is enumerated in Article 1 Section 8. Couldn't be clearer. The power to regulate the health care sector is much less clear.  Healthcare is never mentioned in the Constitution. I (and strict constructionists) would debate this power, but it has by now been presumed by most, so we'll go with it.

Now, is the questionable law "necessary and proper?"  In the case of coinage, I can't imagine another way to coin money than to purchase the equipment that does so.  So I would say it's necessary.  Is it proper? There's little in the Constitution that might be construed to argue otherwise.

Is an insurance mandate necessary?  If it doesn't exist, can the remainder of the law function?  I would have to say yes, but not well.  Can you still force insurers to accept all customers? Yes.  However, prices will likely increase greatly.  I'd say it's an extremely helpful but not necessary law.

Is it proper?  There's really nowhere in the Constitution that I know of that makes it improper. I don't think it is explicitly outlawed anywhere else, so I would have to say it is proper.

I recognize that this is probably the hardest issue to argue because I'm up against decades of precedents and laws that I believe are illegal but have built a defense that won't go down without continuous relentless debate.  We're nowhere near that yet.


He concludes by discussing the implications of an unconstitutional finding on these grounds, that then the EPA and private Social Security Accounts would be illegal.  Environmental issues are clearly interstate issues as it's impossible to confine problems of one state to that state only.  Maybe it's not enumerated, but this is exactly the kind of issue the federal government is supposed to address.  Social Security Accounts, however, are more interesting.  The government already forces everyone to contribute to a retirement account. Private accounts would just enable these citizens to direct their funds to certain investments.  I think this issue could be debated.