Attorney General Eric Holder isn’t exactly viewed as a champion of individual rights for all. His latest attempt to defend the Patient Protection and Affordable Care Act—commonly called ObamaCare because it is, after all, the president’s signature cause—is to turn to the ‘Necessary and Proper’ clause in the U.S. Constitution.
Most Americans would probably go blank if asked to explain that clause, so here it is in fairly simple English from Cornell University Law:
“Under Article I, Section 8 of the Constitution, Congress has the power ‘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 any Department or Officer thereof’.”
Holder and his allies assert that the mandate—I prefer the word, ‘diktat’—is necessary because that is the only means of carrying out other provisions in the health insurance/tax revenue bill.
The Hill explained why this is important:
“Justice has aggressively defended the mandate as its own regulation of economic activity, but is now stepping up a separate argument emphasizing that the mandate is part of a broader regulatory scheme.
The shift moves the focus of Justice’s argument from the Commerce Clause of the Constitution to the Necessary and Proper Clause, which says Congress can make laws that are necessary for carrying out its other powers.”
Supporters of the diktat point to previously unsuccessful attempts to reform or expand health insurance coverage.
If you want to make yourself dizzy, check out the comments appended to a discussion of this matter at The Volkh Conspiracy.
I’m not an attorney, but it strikes me that the Democrats who passed this bill and subsequently admitted they didn’t read it first had ample opportunity to structure the bill so that if the mandate/diktat fell, the entire bill would not come unglued.
Democrats who passed the bill via a procedural gimmick chose not to structure the bill that way. Therefore, we can assume that is how those Democrats wanted the bill to function.
Holder’s argument holds about as much water as a sieve.
Aside from that, specific language in the Necessary and Proper clause references “foregoing Powers” in Article I, Section 8 and also “all other Powers vested by this Constitution in the Government of the United States…”
Nowhere in the entire Constitution is there any language suggesting the federal government require U.S citizens to purchase a product.
Oral arguments before the U.S Supreme Court begin March 26.
(Analysis by Kay B. Day/March 16, 2012)