Neccessary and Proper: How to Justify Federal Penalties for Inactivity?
The legal challenge to the Obama health care act has invigorated a dispute as old as the Constitution about the framers’ most nettlesome grant of power, which gives 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’s 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 Americans can be penalized for not buying something — each side has managed to glean what it wants from the Supreme Court’s most recent guidance.
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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 United States v. Comstock last May.