Yesterday the Supreme Court decided Comstock v. United States, the case I wrote about here. Relying on the “necessary and proper” clause of the Constitution, the Court upheld by a 7–2 margin the federal government’s authority to detain sexually dangerous prisoners after the conclusion of their sentences. The breadth of the Court’s opinion, written by Justice Breyer, makes it more likely that other exercises of federal power will be upheld, including the newly enacted mandate requiring individuals to purchase health insurance.
The framers of the Constitution split authority between the states and the federal government. Denying Congress a general power to legislate in all areas, they granted it a set of specific powers and reserved all remaining powers to the states. The limited nature of the federal government was by constitutional design a specific protection of individual liberty.
Included in the powers granted Congress was the power to enact all laws that are “necessary and proper” to perform its other constitutional powers. Of course, how one defines what is necessary and proper has a large bearing on how limited federal power is.
The scope of this authority was the major question in Comstock. Graydon Comstock, a detained inmate, argued that that the government’s power over him ceased at the end of his sentence. The Court disagreed, holding that the continued detention was necessary and proper to carrying out the purpose of Comstock’s original prison sentence.
In upholding the law, the Court adopted a lenient standard for reviewing laws under the necessary and proper clause. Under this standard, Congress may enact any laws that are rationally related to any of its specific powers. The Court suggested that the closeness of this relationship is a matter of congressional determination. Justice Thomas’s dissent, joined by Justice Scalia, argued that such an expansive view of the necessary and proper clause “comes perilously close” to granting Congress the general legislative authority that everyone, including the Court, agrees that the Constitution does not authorize.
So what does this have to do with the individual mandate? Supporters of the mandate argue that it can be upheld under Congress’s power to regulate interstate commerce, noting that the Court’s opinions have interpreted the necessary and proper clause to allow Congress to regulate activity that substantially affects interstate commerce.
In the past, the Court has refused to accept this reasoning when the law was too far removed from the actual regulation of interstate commerce. Opponents of the mandate argue that an individual’s nonactivity in the insurance market is too tangentially related to the activity of commerce to be a “necessary and proper” regulation. After yesterday’s ruling, this argument will be more difficult to maintain. If it is up to Congress to decide whether a piece of legislation has the required connection to an enumerated power, challenges to the mandate will almost certainly fail.
Of course, in future decisions, the Court may retreat from the broad view it announced in Comstock. The Court’s opinions setting the confines of federal power have been mercurial for several decades. In fact, four justices, including two who voted to uphold the detention law, specifically refused to embrace the majority opinion’s broad reasoning. But, until we see signs to the contrary, it appears that congressional self-restraint is the primary, or maybe the only, limit on federal power.
Ryan Lirette is a research associate at AEI.