Legal Commentary

Consider the following train wreck of Necessary & Proper reasoning contained in Judge Vinson's opinion striking down the individual mandate:
(1) It is a legitimate end for Congress to regulate the insurance industry to prevent "insurers from excluding or charging higher rates to people with pre-existing conditions" (pages 60-61);
(2) The Individual Mandate in the ACA is "necessary" to enable Congress to regulate the insurance industry in this manner (page 63). Yet...
(3) "[T]he individual mandate falls outside the boundary of Congress? Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers."

Huh? How can a means that is conceded to be necessary for a legitimate end not be within Congress' implied powers to pursue that end? Judge Vinson never presents even the simulacrum of an argument: Instead, he engages in hand-waving. He states that "[t]he Necessary and Proper Clause cannot be utilized to 'pass laws for the accomplishment of objects' that are not within Congress? enumerated powers (page 62)." Yes, of course -- but, just a page earlier, Judge Vinson had conceded that the end of regulating the insurance industry is an "object" within Congress' enumerated powers! Judge Vinson follows this non sequitur with another: He quotes Printz's statement that, "[w]hen a 'Law . . . for carrying into Execution' the Commerce Clause [violates other Constitutional principles], it is not a 'Law . . . proper for carrying into Execution the Commerce Clause....'" (page 62). But his very quotation requires Judge Vinson to point to some "other Constitutional principle" besides the doctrine of enumerated powers to justify his opinion. Judge Vinson never does so: He brandishes the language of enumerated powers, even though the language is wholly non-germane to the task at hand.

What is responsible for this egregious muddle of McCulloch? As the quotation from Printz suggests, Judge Vinson is extending Printz's an anti-commandeering principle from states to private persons. The problem, of course, is that Printz's anti-commandeering principle is rooted in the idea that Congress can conscript private persons -- a power which Congress has routinely exercised to force us private folk to serve on juries, testify as witnesses, and register for the draft. That's the whole gist of the Court's contrast in New York v. United States between the Articles of Confederation (under which states could be commandeered to raise troops for Congress) and the the U.S. Constitution (under which Congress has to conscript soldiers directly using its own powers): Congress does not need to force the states to draft us, the New York Court reasoned, because Congress can draft us itself.

This is not to say that there is not a place in the U.S. Constitution for an anti-commandeering principle to prevent the government's commandeering of private persons. That place is, however, the Bill of Rights and the Civil War Amendments, not Article I. By using Article I doctrines to advance a libertarian agenda, Judge Vinson (and his chief handler, Randy Barnett) risks discrediting the former by not defending the latter plainly and coherently.