By Anthony W. Hawks

During the recent Supreme Court oral arguments on the Obamacare individual mandate, Chief Justice John Marshall was invoked no less than three times: once by Justice Sotomayer to suggest that Marshall’s opinion in Gibbons v. Ogden allowed Congress to police itself with respect to the Commerce Clause; once by Solicitor General Verrilli to assert that Congress’s reliance on an individual mandate was well within the broad discretion over choice of means that Marshall upheld in McCulloch v. Maryland; and once by the challengers’ attorney, Paul Clement, who argued that the “great Chief Justice” would never have extended McCulloch so that Congress could force people to make deposits in the disputed Second Bank of the United States.

My purpose here is not to argue whose side Marshall would have chosen, but rather to show how Obamacare illustrates the ease with which the Supreme Court can “amend” the text of the Constitution with imprecise language that attempts to interpret that text. (For a compelling argument that Marshall would indeed have struck down the individual mandate, read Federalism & Separation of Powers – ‘Health Laws of Every Description’: John Marshall’s Ruling on a Federal Health Care Law by Robert G. Natelson & David B. Kopel.)

The imprecise language here is from McCulloch itself, and it can be found in what is perhaps the most iconic statement of law ever written by the “great Chief Justice”:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

For nearly two centuries now, this language has been the lodestar for interpreting the Necessary & Proper Clause, which empowers Congress “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers” that are specifically enumerated in Article I, Section 8 and elsewhere in the Constitution.

Now look closely again at the beginning of Marshall’s quote and notice that he said the “end” should be legitimate, even though the Necessary & Proper Clause refers only to executing an enumerated power and nothing about using those powers to achieve legitimate “ends”. By using an amorphous word like “end” instead of the specific textual word “power”, Marshall created a precedent that later enabled the Supreme Court to substitute “end” for “power” in the context of Commerce Clause cases that arose during the New Deal.

The “end” to which Marshall was referring was the execution of an enumerated power itself, not any goal or purpose that Congress might want to attain through an enumerated power. But this changed in Commerce Clause cases following the 1937 decision in N.L.R.B. v. Jones & Laughlin Steel Corp. Now the Necessary & Proper Clause was no longer tethered to “means” that actually “execute” the power to regulate interstate commerce; henceforth it would authorize any “means” that might achieve the goal or purpose that Congress was hoping to accomplish through the Commerce Power.

If you accept this linguistic sleight of hand – where Marshall’s notion of a legitimate “end” is magically transformed from the execution of an enumerated power to any permissible policy goal that Congress wants to achieve – then the argument for upholding the individual mandate is easy to make, reducible to a simple syllogism:

1st Premise: The primary goal or “end” of Obamacare’s Patient Protection and Affordable Care Act (Public Law No. 111-148 ) is to expand health insurance coverage for individuals to the greatest extent practicable.

2nd Premise: The principal means for achieving this goal are the so-called “guaranteed issue” (no denials for pre-existing conditions) and “community rating” (no higher premiums for medical condition or history) reforms of the health insurance market. The effectiveness of these reforms, however, creates an “adverse selection” problem (foregoing insurance until medical care is needed) that undermines the effectiveness of the statute as a whole by bankrupting insurers who must implement the guaranteed issue and community rating reforms.

3rd Premise: The individual mandate counteracts the adverse selection problem by requiring virtually all individuals, but especially healthy ones, to buy health insurance before they need medical care.

Conclusion: The individual mandate is constitutional because it is a necessary secondary means for ensuring that the primary means of guaranteed issue and community rating achieve the legitimate end of expanding health coverage because.

Leave aside the startling fact that this argument gives Congress an unlimited power to fix any problem that Congress itself creates in trying to realize a constitutional goal; look instead at what Marshall actually meant to say in McCulloch:

“Let the [power] be legitimate, let it be [an enumerated power] within the scope of the constitution, and all [direct means and incidental powers] which are appropriate, which are plainly adapted to [the execution of that enumerated power], which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

How do we know that this is what the “great Chief Justice” meant to say? Because he told us in his public defense of McCulloch presented in a series of 11 essays published in the spring and summer of 1819, shortly after McCulloch was decided. These essays, and how Obamacare would fare under this corrected reading of the Necessary & Proper Clause, will be the subject of the next post.

Copyright © 2012 Anthony W. Hawks. All rights reserved.

About Radnor Reports

Ken Feltman is past-president of the International Association of Political Consultants and the American League of Lobbyists. He is retired chairman of Radnor Inc., an international political consulting and government relations firm in Washington, D.C. Known as a coalition builder, he has participated in election campaigns and legislative efforts in the United States and several other countries.
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