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Posted by on Jun 28, 2012 in At TMV | 5 comments

(Im)Proper Constitutionalism: Roberts’ Revenge?

Now that the original frenzy over the ACA ruling has died done (a little), folks are starting to dig a little deeper into the opinions (particularly Roberts’) to figure out what it means for the next case (incidentally, you can read the opinions here). Chief Justice Roberts’ formulation is that the individual mandate does not lie within Congress’ commerce clause power (nor the necessary and proper clause), but functions effectively as a tax and thus is part of Congress’ taxing power. Now that I’ve quickly read over the commerce/N&P parts of the opinions (well, Roberts, Ginsburg, and the joint dissent), I have a few thoughts on them as well. Short version — in trying not to uphold the ACA under the Commerce Clause, Chief Justice Roberts might have opened the door the most unconstrained constitutional activism the nation has ever seen: Laws are unconstitutional if judges think they’re not “proper”.

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  • CStanley

    It is a fuzzy word but Roberts did address this, i think….and several justices did in oral arguments, asking what limit would still remain if this was to be found proper.

    Fuzzy as it is, the word has to mean something and that means there must be some govt actions that would be found improper. If the advocates of a particular action can’t explain why this action wouldn’t set a precedent for nothing being out of bounds in the future, then clearly there’s an issue with that.

  • merkin

    I suppose we could ask Justice Scalia. Justice Ginsberg believes that he holds many of the answers to that. From her concurrence.

    The Necessary and Proper Clause “empowers Congress to enact laws in effectuation of its [commerce] powe[r] that are not within its authority to enact in isolation.” Raich, 545 U. S., at 39 (Scalia, J., concurring in judgment). Hence, “[a] complex regulatory program . . . can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal.” Indiana, 452 U. S., at 329, n. 17. “It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test.” Ibid. (collecting cases). See also Raich, 545 U. S., at 24–25 (A challenged statutory provision fits within Congress’ commerce authority if it is an “essential par[t] of a larger regulation of economic activity,” such that, in the absence of the provision, “the regulatory scheme could be undercut.” (quoting Lopez, 514 U. S., at 561)); Raich, 545 U. S., at 37 (Scalia, J., concurring in judgment) (“Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. The relevant question is simply whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power.”

    Girl’s got game.

  • Well not necessarily, CStan. For the past 200-plus years, we’ve read “necessary and proper” as a single clause, granting Congress the power (N&P is a grant of power in Art. I Sec. 8, not a restriction on power in Art. I Sec. 9) to take actions it deems useful or expedient to the pursuit of its other enumerated powers. To find that a congressional statute is in fact essential to a valid object of congressional regulation (the healthcare market) but nonetheless not “proper” is something we’ve literally never seen in the history of American jurisprudence.

  • Dr. J

    So where should one draw the line, David? On the one hand, everything affects interstate commerce. Even non-things (such as non-existent health insurance policies) can plausibly be argued into Congress’s remit, on the grounds that they’re convenient to interstate commerce regulation.

    On the other hand, a Congressional license to regulate everything that exists and many things that don’t clearly goes against the spirit of the Constitution.

    So I can appreciate the argument that the constitution gives no clear basis for drawing a line at this particular spot. But where does that leave us?

  • Well, one place it leaves us is in the specific prohibitions the Constitution does provide (e.g., no laws abridging freedom of speech).

    One could also follow Lopez and Morrison and say that for the full force of commerce clause regulation the subject of the regulation has to be economic in nature (which the national health insurance market is, but, say, violence against women [Morrison] is not). I’d even have been fine with some form of heightened judicial scrutiny for regulation of economic mandates — as Justice Ginsburg points out, the connection between the individual mandate and regulation of the health insurance market is unusually strong and the need for regulation of this form unusually pronounced (which is where I thought Justice Kennedy was going at oral argument).

    But the final, most important place it leaves us is with the democratic process, which generally has proven quite adept at not passing broccoli mandates. Constitutionalization of problems should generally only occur when there is reason to suspect systematic democratic failings at solving a problem (e.g., minority rights). Where that isn’t the case, there should be a strong presumption in favor of letting the people govern themselves. As Justice Ginsburg notes, any power can be dangerous if taken to its outer limit, but a democracy can’t function if it doesn’t trust the people not to enact utterly boneheaded laws.

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