Legal Commentary

Preliminary Thoughts on Comstock

By Randy Barnett

I just finished reading the opinions in Comstock. While I disagree strongly with the majority?s analysis, and am disappointed that Chief Justice Roberts joined Justice Breyer?s opinion, the case has little or no import for the constitutional challenges to the individual health insurance mandate. The reason for this is simple. Comstock involved whether ample connection existed between the law incarcerating sexual predators after their federal criminal sentence had been completed and an enumerated power. The majority and concurring opinions found such a connection. Justice Thomas, joined by Justice Scalia, did not. In particular, the dissent contended that this law was not justified by its connection to any enumerated power. 

With the challenges to the individual mandate, however, Congress is explicitly asserting that the individual mandate is ?necessary and proper? to execute its power under the Commerce Clause. Moreover, the argument for ?necessity? is reasonably straight-forward: it is necessary to compel all uninsured persons into the insurance pool to pay for the increased costs being imposed on insurance companies by the Act. Under the Court?s normal deferential approach, finding ?necessity? won?t be hard.

The problem with the mandate is whether it is a ?proper? means to achieve a constitutional end. The Court has previously held that mandating state legislatures (in New York v. U.S.) and executive officials (in Printz v. U.S.) is an ?improper? commandeering of states and therefore violates the Tenth Amendment?s reservation of powers ?to the states.? The challenges to the individual mandate raise the issue of whether mandating all persons to enter into a contract with a private company is ?improper? commandeering of the people and therefore violates the Tenth Amendment?s reservation of powers ?to the people.? Because such a commandeering has never been previously been attempted, the Court will have to address whether it is an ?appropriate? (McCulloch) means to achieving an enumerated end, however ?necessary? it may be. Deciding this question return the Court to the scope of the Commerce Clause.

In Comstock, nothing about the incarceration of sexually dangerous persons was alleged to be an ?improper? means of pursuing an enumerated end. The issue was whether or not the statute was enacted pursuant to an enumerated power. The majority held it was?all the enumerated powers for which the original criminal incarceration was the means?while the dissent disagreed.

One encouraging aspect of the case was Justice Kennedy?s denial that the Commerce Clause required only the sort of rational basis scrutiny described in the Due Process case of Lee Optical. But even this has no bearing on the challenge to the individual mandate as the mandate would likely satisfy even heightened scrutiny for necessity or means-ends fit. Once again, the issue is not necessity, it is propriety. In this regard, it is very encouraging to see Justice Scalia joining Justice Thomas?s dissenting opinion in which Justice Thomas reiterates Justice Scalia?s characterization in Printz of the Necessary and Proper Clause as ?the last, best hope of those who defend ultra vires congressional action.? 

As I said at the beginning, these are very preliminary thoughts. I may well revise them after reading the analysis of others.

Full post as published by The Volokh Conspiracy on May 17, 2010 (boomark / email).