Health Care Decision: Necessary and Proper

Here is a bit more for you. A bit redundant, but a little more detail.

I want to focus on the Necessary & Proper Clause and its application to the Individual Mandate decision. Chief Justice Roberts made clear that it is not enough that some action on the part of Congress is "necessary" to its Commerce Power, it must also be "proper." Consider this passage from his opinion:

As our jurisprudence under the Necessary and Proper Clause has developed, we *2592 have been very deferential to Congress's determination that a regulation is “necessary.” We have thus upheld laws that are “ ‘convenient, or useful’ or ‘conducive’ to the authority's ‘beneficial exercise.’ ” Comstock, 560 U.S., at ––––, 130 S.Ct., at 1965 (quoting McCulloch, supra, at 413, 418). But we have also carried out our responsibility to declare unconstitutional those laws that undermine the structure of government established by the Constitution. Such laws, which are not “consist[ent] with the letter and spirit of the constitution,” McCulloch, supra, at 421, are not “ proper [means] for carrying into Execution” Congress's enumerated powers. Rather, they are, “in the words of The Federalist, ‘merely acts of usurpation’ which ‘deserve to be treated as such.’ ” Printz v. United States, 521 U.S. 898, 924, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997) (alterations omitted) (quoting The Federalist No. 33, at 204 (A. Hamilton)); see also New York, 505 U.S., at 177, 112 S.Ct. 2408; Comstock, supra, at ––––, 130 S.Ct., at 1967–1968 (KENNEDY, J., concurring in judgment) (“It is of fundamental importance to consider whether essential attributes of state sovereignty are compromised by the assertion of federal power under the Necessary and Proper Clause ...”).

Applying these principles, the individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of the insurance reforms. Each of our prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. For example, we have upheld provisions permitting continued confinement of those already in federal custody when they could not be safely released, Comstock, supra, at ––––, 130 S.Ct., at 1954–1955; criminalizing bribes involving organizations receiving federal funds, Sabri v. United States, 541 U.S. 600, 602, 605, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004); and tolling state statutes of limitations while cases are pending in federal court, Jinks v. Richland County, 538 U.S. 456, 459, 462, 123 S.Ct. 1667, 155 L.Ed.2d 631 (2003). The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power.

This is in no way an authority that is “narrow in scope,” Comstock, supra, at ––––, 130 S.Ct., at 1964, or “incidental” to the exercise of the commerce power, McCulloch, supra, at 418. Rather, such a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority. No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal regulation. Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it. Even if the individual mandate is “necessary” to the Act's insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.