When judging the past, recall we were not born yesterday, we come from different places; we are in a bad as well as a good sense a “nation of immigrants."
My colleague Ilya Somin has penned a good piece on “The Individual Mandate and the Proper Meaning of ‘Proper’,” arguing that Chief Justice John Roberts’ opinion in NFIB v. Sebelius has “moved our jurisprudence closer to the proper meaning of proper.” Moreover, the Chief was right to conclude that the notorious individual mandate flunks a proper “proper” test. I agree with that assessment and much else in Ilya’s instructive article, though perhaps for somewhat different reasons.
The basic proposition is that “proper” in the Necessary and Proper Clause must have some independent meaning (independent, that is, from “necessary”). A “minimalistic” reading of “proper,” Ilya writes, holds that Congress may not pass laws that imply a limitless understanding of congressional powers, or which would render large parts of the Constitution redundant. (In other words, a constitutional interpretation that can’t handle broccoli must be wrong.) A broader reading, advocated by a scholars’ amicus brief in NFIB v. Sebelius [2012 WL 484061] and suggested twice in Chief Justice Roberts’ opinion, picks up John Marshall’s M’Culloch suggestion that the Necessary and Proper Clause encompasses “incidental” powers but not “great substantive and independent” ones. A power to impose mandates (the argument concludes) flunks that test.
I’m not entirely happy with either formulation. The “minimalistic” reading simply restates the principle of limited and enumerated powers, which would control (and since at least Gibbons v. Ogden has controlled) even without “proper.” And the broader reading rests on a distinction that to my mind was suspect the day it was announced. (Nobody ever incorporates something for its own sake, the Chief wrote in M’Culloch; the power didn’t have to be enumerated because it is incidental. But nobody ever taxes for the heck of it, either; yet that power is enumerated.) So here is a different take, or maybe it’s simply a different way of saying the same thing:
“Necessary” is a means-ends test: legislation must be necessary (convenient, useful) to a constitutionally provided-for end. “Proper,” in contrast, can’t be a means-ends test, at least not exclusively: if it were, it would be swallowed by ”necessary” and judicial deference canons. It’s best read (to my mind) as shorthand for the proposition (Marshall’s proposition) that legislation must be consistent with the letter and the spirit of the Constitution—not its ghost but its structural principles, including principles that (unlike the principle of limited and enumerated powers) aren’t immediately obvious.
The principle here at issue is the distinction between a prohibition and an affirmative command. That distinction is better than the (admittedly, related) distinction between regulating “activity” (okay) and “inactivity” (not okay) because the Constitution itself makes it: explicit powers to command (like the Militia Clauses and, by conventional—though not unassailable—understanding the Supremacy Clause, as to state judges) are exceedingly few and, moreover, institutionally cabined. Whence we (or at least I) infer that unless the power to command is provided for (textually or by unmistakable inference, as with military conscription) it’s excluded.
An exotic proposition? Hardly. The distinction is so fundamental, it’s been discussed and almost unfailingly observed, in a wide range of settings, in cases from Martin v. Hunter’s Lessee (1816) to Schechter Poultry (1935) to Printz v. United States (1997).
A good case can be made that the Chief’s opinion in NFIB rests on precisely the same distinction between prohibition and affirmative command. The best evidence, as it happens, is a passage in the much-maligned tax portion of the opinion (boldface added):
If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the severe burden that taxation—especially taxation motivated by a regulatory purpose—can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.
Congress may prohibit, and it may tax. What it may not do (without a special, clear constitutional warrant) is to eliminate a lawful choice by means of an affirmative, “do this” command. Legislation to that effect is inconsistent with the spirit and the structure of the Constitution. You could say that it isn’t proper.