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Reaching beyond health care: The real significance of Judge Hudson’s decision and reasoning…

Reflecting on yesterday’s very surprising decision in Virgina regarding health care….

One of the more enjoyable (for me at least) lectures I give in my basic American government course focuses on the “necessary and proper clause” — also known as the “elastic clause” for reasons that are central to my talk. Specifically, we are talking about Article I, Section 8, paragraph 18 of the US Constitution, and how its interpretation has shaped the power of the federal government, especially in relation to the states (i.e., federalism).

The stage for the clause is set in the previous 17 paragraphs, each articulating a power of Congress. A laundry list of sorts, those powers seem to run the range from the narrow and mundane (“to fix the Standard of Weights and Measures”) to the most general of authorizations (“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”). While we do not know much of the details of the give-and-take at Philadelphia in the summer of 1787, the arrangement of those 17 paragraphs gives the impression that the Framers were at some point engaged in a discussion of all the shortcomings of the Articles of Confederation that they wished to correct by empowering this newly formed congressional body. And one can imagine that, at some point, they realized that the list could go on and on if they were to bother elaborating all those powers that would be needed to fulfill those already listed. It is therefore possible to imagine that the “necessary and proper” clause was the result: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department of Officer thereof.”

Great debates over the bill of rights and constitutional treatises notwithstanding, I regard paragraph 18 as THE key provision of the US Constitution — and I spend a great deal of time and effort in my introductory courses (and textbook chapter) making that quite clear, not only for its expansive impact on the powers of Congress (and thus of the national government as a whole), but also because it provides the primary example of a constitutional provision that cried out interpretation.

The words are quite clear — to a point. It is how they are read or spoken that makes the difference. Consider, if you will, how the words of the clause can be approached, especially the key phrase “necessary and proper”. On one reading, the clause can be read as restrictive — that is, the Congress “shall” be limited to pass laws that are needed and appropriate to carry out those enumerated powers — and nothing more. It is not “do whatever is necessary and proper,” but rather “do only what is necessary and proper”. The alternative reading — “do whatever” — is obviously more expansive.

A great deal of political life in the first years of the republic centered on the difference in those phrasings, typically personified in the contentious and heated relations between Jefferson and Hamilton and their respective allies. For those of us who teach and write about American government, the watershed and decisive historical moment for settling the dispute was the Supreme Court’s 1819 decision in McCulloch v. Maryland — a case cited in almost every textbook along with Marbury v Madison as the foundational decisions of the country’s early years. My argument is that without that particular decision and its expansive interpretation (by John Marshall) standing as a core precedent, the US constitutional system would have developed quite differently.

This is not to say that the decision in McCulloch and the expansive view has not been challenged. In fact, a case can be made that US constitutional history is one extended narrative involving constant efforts to both restrict and expand the use of the necessary and proper clause. The McCulloch decision, for example, did not settle the substantive issues of the national bank which took on even greater political importance during the 1820s. Nor can one ignore the role that the expansive interpretation played in the debate over slavery and the national government’s power to abolish (or severely limit it) legislatively. The last great debate along this lines took place in the 1930s as part of the battles FDR fought with a Supreme Court that would not buy into the argument that some delegations of authority by Congress went beyond what was “necessary and proper”. But after 190 years, the McCulloch precedent is generally accepted as the central standard, to the point that our attention often focuses elsewhere when constitutional challenges are raised.

Which leads me to my reaction to Judge Henry Hudson’s decision in ruling that the requirement (mandate) for individuals to purchase health insurance (or be penalized, in the form of a tax) was unconstitutional. While the New York Times has opined that is “was no great surprise” that a Bush appointee would render such a decision, the fact is that it is quite a surprise given his use of the necessary and proper clause to rationalize his decision. Let’s put aside, for the moment, the substantive details of the case and that it involved a very controversial provision of a hotly contested law. What is surprising — even shocking — is that a sitting federal judge has returned to a restrictive view of the necessary and proper clause that runs directly counter to settled historical precedent.

The implications of the reasoning in this decision — should it be upheld on appeal –would involve a radical alteration of the the basic constitutional principles under which we have been operating for nearly two centuries (if not longer, if you consider the actions of Hamilton in establishing the national bank, etc.).

That said, given the current turmoil in judicial thinking (and the growing influence of The Federalist Society), it is not out of the question that this narrower view of the clause might have a chance of gaining the support of a Supreme Court majority, thus returning us at least to the more restrictive views of national power held by the courts in the first half of the 1930s. We have seen some movement back to state-centered views of federalism in recent SCOTUS decisions, and the restrictive view of the necessary and proper clause would fit into that trend. Such a move to limiting national authority would not be illegitimate, but it would be transformative given the history of the past eight decades.

December 14th, 2010 Posted by | accountabilitybloke | no comments