An applicable individual shall[,] for each month beginning after 2013[,] ensure that the individual and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month…. If an applicable individual fails to meet the requirement…for [one] or more months during any calendar year beginning after 2013, then…there is hereby imposed a penalty with respect to the individual [per year, up to $695 for individuals and $2,085 for families]…
There were several media highlights during last week’s three days of oral arguments at the Supreme Court over ObamaCare (the Patient Protection and Affordable Care Act). For one, Justice Samuel Alito got laughs suggesting U.S. Solicitor General Donald Verrilli, who defended ObamaCare, would argue that although the “penalty is not a tax[,]…the penalty is a tax.” Also, Justice Anthony Kennedy, who Supreme Court observers believe could approve ObamaCare, asked Verrilli such tough questions as “Can you create commerce…to regulate it?” And Justice Antonin Scalia asked Verrilli the following questions: [W]hat happened to the Eighth Amendment[, which prohibits cruel and unusual punishment]? You really want us to go through these 2,700 pages [of ObamaCare]?
As discussed during oral arguments, especially on Day 2, Article 1, Section 8, of the Constitution, which lists Congress’s few enumerated powers, reads in part as follows:
Congress shall have power…[t]o regulate commerce…among the several states [“interstate commerce”]
Listed after the interstate commerce power and all of Congress’s other few powers is the following grant of slightly more power:
[The power] [t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers.
As expected, throughout oral arguments Verrilli defended the Individual Mandate as “necessary and proper” for Congress to implement the rest of ObamaCare, which regulates health care purchases under Congress’s power to regulate interstate commerce. However, as legal scholars Gary Lawson and David Kopel have shown in their recent article “Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate,” the original meaning of the Necessary and Proper Clause commands that a “necessary and proper” law be “‘less worthy’ [or less significant] than the enumerated powe[r] that it purportedly implements.” Lawson and Kopel continued with their condemnation of the Individual Mandate’s constitutionality:
The power to compel the purchase of a commercial product [as the Individual Mandate does with forcing purchases of health insurance] is…an extraordinary power of independent significance…that would be enumerated as a principal power if it were granted at all to the federal government…It is a power at least as significant…as the power to regulate [interstate commerce].
And so we get what I call the ObamaCare Absurdity: The Individual Mandate, the “necessary and proper” law, is a greater or equal exertion of congressional power than the enumerated power to regulate “interstate commerce,” which in this case the rest of ObamaCare exercises.
I wish the conservative justices, for the media and official record, better highlighted the ObamaCare Absurdity. On Day 2 of oral arguments, Scalia got close when he said “…so [if] you define the market as food [as opposed to health care],[can] you can make people buy broccoli[?]” However, Scalia only highlighted a further abuse of the interstate commerce power. What about possible future abuses by Congress, through the Necessary and Proper Clause, of Congress’s other enumerated powers, such as the powers to “establish post roads,” “coin money,” and “regulate commerce with…the Indian Tribes”? I wish conservative justices asked Verrilli if Congress could engage in such a parade of absurdities as the following:
- To necessarily and properly “establish post roads,” Congress can conscript Americans to build roads.
- To necessarily and properly “coin money,” Congress can prohibit Americans from bartering.
- To necessarily and properly “regulate commerce with…the Indian Tribes,” Congress can force Americans to buy Indian Tribes’ products.
What’s an easy way to create new congressional powers? Call them “necessary and proper.” If the Supreme Court upholds ObamaCare, Americans will surely see such future absurdities.
 As a back-up argument, Verrilli argued Congress could issue the individual mandate as an exercise of Congress’s tax power.