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December 14, 2010


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Hi, Calvin. Interesting (and I'm certainly with you on the tax analysis), but I think you've got the N&P analysis wrong. This is an easy case.

As the statute says, the goal was to provide for no discrimination by insurers against people with pre-existing conditions. That's obviously regulation of commerce. But the health care system collapses if you do that without a mandate. That's why the mandate is necessary, and that's why it's proper.

Everything else is just people blowing smoke to obscure that, IMHO.

Kurt Lash

BDG--We are long past the point where a claim of necessity was sufficient to establish the constitutionality of federal power. The forced ownership provisions in New York were probably "necessary" to solve the collective action problems relating to the disposal of low-level hazardous waste (congress continues to grapple with the issue to this day). But the court nevertheless struck down the provision as unduly intruding upon powers reserved to the states. The claim is no different for the insurance mandate--even if necessary for the proper functioning of a congressional program, such necessity cannot itself resolve whether the power nevertheless remains beyond national authority.

Calvin--You seem to agree with the thrust of a number of commentators who emphasize a distinction between "necessary" and "proper." I remain agnostic on this point, if only because my reading of the historical evidence suggests the terms were never disaggregated. Still, I think it can be useful to consider the possible meanings of "proper." How do you think we should go about determining the meaning of that particular term?

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