Fri, Dec 31, 2010 - Page 9 News List

New US healthcare act reignites an old constitutional debate

The necessary-and-proper clause’s potential to concentrate power in the national government has always caused consternation among anti-federalists

By Kevin Sack  /  NY Times News Service, NEW YORK

The legal challenge to US President Barack Obama’s healthcare act has invigorated a dispute as old as the Constitution about the framers’ most nettlesome grant of power, which gives the US Congress treacherously broad authority to pass laws “necessary and proper” to carrying out its assigned responsibilities.

The cases, which are presumed to be headed to the Supreme Court, center on whether Congress’ power to regulate interstate commerce is so expansive that it can require citizens to buy health insurance, but as the litigation advances, the “necessary and proper” clause is taking on greater prominence in briefs and oral arguments, with the Obama administration asserting that it shelters the insurance mandate and state officials arguing that it buries it.

Because the facts are novel — the courts have never addressed whether US citizens can be penalized for not buying something — each side has managed to glean what it wants from the Supreme Court’s most recent guidance.

A spirited debate broke out in legal blogs this month after Judge Henry Hudson of US District Court in Richmond, Virginia, invalidated the insurance requirement in part by rejecting the administration’s necessary-and-proper defense. As that case and others move into the appellate courts, academics are submitting friend-of-the-court briefs that focus on the meaning of necessary and proper.

Some forecast that by the time it gets to the Supreme Court, a case that seemed to be about the commerce clause may be fought largely on necessary-and-proper grounds.

“I think it’s going to be crucial,” said Randy Barnett, a Georgetown law professor who recently filed a brief, in the US Court of Appeals for the Sixth Circuit, that assails the insurance mandate with a necessary-and-proper argument. “The necessary-and-proper clause is always lurking in these commerce clause cases.”

The necessary-and-proper clause sits at the end of Article I, Section 8, after 17 paragraphs that enumerate the powers delegated to Congress, ranging from the establishment of post offices to the declaration of war. It conveys authority “to make all laws which shall be necessary and proper for carrying into execution the -foregoing powers.”

The clause’s potential to concentrate power in the national government — it became known as the “sweeping power” — caused consternation among anti-federalists during ratification and the Supreme Court has struggled since to define its limits, in decisions from McCulloch v Maryland in 1819 to the US v Comstock last May.

The next refinement could well come when the Supreme Court considers the healthcare law, probably two years down the road. Three US District Court judges so far have ruled on the merits of the case, with two upholding the insurance mandate and Hudson invalidating it, but not blocking it pending appeal. A fourth judge is expected to rule next year.

The US Department of Justice, which represents the Obama administration, argues that the insurance requirement is constitutional under the commerce clause and allowed under the necessary-and-proper clause as a rational means to an appropriate end. It points to a series of Supreme Court precedents that interpret those provisions as allowing the regulation of “activities that substantially affect interstate commerce.”

The act of not obtaining health insurance, the federal government’s lawyers contend, is effectively a decision to pay later rather than up front in a market that consumers cannot avoid. Such decisions, they say, have a substantial impact on the market because many of the uninsured cannot afford their care and shift costs to governments, hospitals and the privately insured.

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