Introduction

Gary Lawson and David Kopel’s Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate1 purports to reply to my essay defending the constitutionality of the health care mandate.2 Surprisingly, however, most of my claims about the scope of the commerce and taxing powers attract little of their attention.3 And even with respect to the Necessary and Proper Clause, which is the focus of Lawson and Kopel’s essay, these authors do not defend—or even mention—the principal target of my attack: the reasoning of the federal district courts that have agreed with them that the mandate is unconstitutional.

The really big surprise is their account of the Necessary and Proper Clause. Relying on a new book coauthored by Lawson, The Origins of the Necessary and Proper Clause,4 they argue that the Clause incorporates norms from eighteenth-century agency law, administrative law, and corporate law, and that the mandate (and perhaps much else in the U.S. Code, though they are coy about this5) violates those norms. The book is a valuable contribution, an original and enlightening exploration of the contemporaneous meaning of the Clause. The book is, however, careful to take no position on how the Clause should be interpreted today.6 Bad News for Professor Koppelman is bolder. It is, to my knowledge, the first piece of modern scholarship that has ever proposed that these eighteenth-century norms become the master concepts for determining the scope of congressional power today.7

Because what they offer is new news, it seems harsh to reproach me for not taking the limits they offer into account in my own consideration of congressional power. How could I have known? Nor am I alone in my innocence. For nearly 200 years, the federal government has taken on ever larger responsibilities without reference to these limits, which had been forgotten. From now on, Lawson and Kopel tell us, everything will have to be different. Any question of congressional power must ignore all of this history and be resolved solely with reference to “careful study of the Clause’s origin, purpose, and meaning.”8

The Necessary and Proper Clause, as they understand it, tightly limits the scope of implied powers to those that are less “worthy” or “dignified” than the principal powers to which they are subsidiary. Their logic implies the greatest revolution in federal power in American history. (And as I shall shortly explain, this would decidedly be a revolution from above.) The stakes go way, way beyond health care reform. Lawson and Kopel do not merely want to burn the house to roast the pig. They are ready to torch the whole city.

I. The New (Original) Necessary and Proper Clause

Lawson and Kopel raise two constitutional objections to the mandate. First, “a law enacted under the Clause must exercise a subsidiary rather than an independent power.”9 The mandate does not satisfy this requirement, because “the power to order someone to purchase a product is not a power subordinate or inferior to other powers.”10 Second, an exercise of power must treat citizens impartially, “with an eye toward the interests of all affected persons.”11 This requirement is violated by a mandate that requires people to buy insurance “in order to subsidize other people.”12 These are, Lawson and Kopel acknowledge, unfamiliar rules of law, “perhaps strange-sounding to modern ears.”13 I will consider each in turn.

A. Worthy and Dignified

The first of these requirements is puzzling. An incident must be “a thing necessarily depending upon, appertaining to, or following another thing that is more worthy or principal.”14 How are we to tell if one power is as “worthy” or “dignified” as another? To return to a case I focused on in my first essay,15 how are we to know that the power to jail those who rob the mails is “less important or less valuable”16 than the enumerated power to operate a post office?17

These terms (“worthy,” “dignified”) may have made sense in the eighteenth century. “By the founding era, the jurisprudence of principals and incidents had become a prominent and well-developed branch of the law. Numerous cases had specified which lesser interests were incident to which greater interests.”18 But it is not obvious how to translate these terms from their then-familiar applications in property law or the law of corporations to the very different context of governmental powers. Chief Justice Marshall tried to do it in McCulloch v. Maryland.19 So did others at the time who struggled with the question presented there: whether Congress had the power to charter a bank.20

Lawson and Kopel are right that I paid no attention to these discussions. The reason was because these terms are no part of modern constitutional doctrine: as they concede, “[m]ore recent cases no longer use the language of principals and incidents.”21 Since the lower courts to which I was responding have claimed that the mandate was unconstitutional under existing law, I thought that my task was to justify the mandate under that law.

These terms take us into terra incognita. The debates at the time of McCulloch show that even then, there was deep uncertainty about how to apply the doctrine of principals and incidents to Article I of the Constitution.22 It is even harder to know how to apply them today. And what would be the consequence if we did? All we are told is that the holdings of more recent cases—meaning cases decided in the last century—“are broadly consistent with that framework,”23 and that sustaining the constitutional objection to the individual mandate “does not require overruling any decision.”24 They add that “one could fairly argue that those decisions misapplied the original meaning of the Necessary and Proper Clause, but those arguments would involve issues not raised here.”25 It is, in short, an open question how much of existing law would have to be scrapped if this worth-and-dignity rule were adopted by the courts.

What is not uncertain is that the federal government now exercises unenumerated powers that are not obviously lesser to the enumerated ones. The enumerated power “to establish a uniform Rule of Naturalization”26 seems no more “dignified”27 than Congress’s plenary authority to regulate immigration and exclude aliens.28 Perhaps what they say about the mandate is also true of control over the borders: this “is an extraordinary power of independent significance . . . that would be enumerated as a principal power if it were granted at all to the federal government.”29 Congress regulates air and water pollution under the Clean Air Act30 and the Clean Water Act,31 which is “not a ‘less worthy’ or less substantial power than the power to regulate commerce.”32 Nor is the power to regulate intrastate railway rates that have “a close and substantial relation to interstate traffic[,] . . . to the efficiency of interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms.”33 Nor is the power to ban racial discrimination in places of public accommodation that serve interstate travelers or that sell products shipped across state lines34: the Civil Rights Act of 1964 may be in trouble.35 Nor is the power to regulate the sale of adulterated food: the Food, Drug, and Cosmetic Act may also have to go.36 Nor is the sale of securities, which typically is not conducted across state lines: so much for the Securities and Exchange Commission.37 Nor is banking: out goes the Federal Reserve.38 Congress has the enumerated power to “coin Money,”39 but the power to print paper money is not obviously inferior or subordinate to this, and Madison denounced any such power at the end of Federalist 10.40

B. Fiduciary Duties

Exercises of power under the Necessary and Proper Clause, Lawson and Kopel argue, must conform to the fiduciary obligation “to treat all principals with presumptive equality when there is more than one principal.”41 The mandate violates this: “The purpose of the individual mandate is to force people who choose not to buy a particular type of insurance from government-favored oligopolists to buy the unwanted product in order to subsidize other people.”42

Note the peculiar formulation in the cumbersomely constructed sentence just quoted, which uses “to” twice to refer to two different infinitive verbs,43 thus stating the Act’s purpose ambiguously. Which of these do they take to be the purpose: to force people to buy, or to subsidize health care consumers who would lose out in an unregulated market? It is a silly question, of course. The answer is both. However, it is clear (and the sentence implicitly acknowledges) which is the end and which is the means. The reason for the mandate, its instrumental purpose, is to spread the cost of insuring those with preexisting conditions who would be unable to buy insurance absent the regulatory scheme.44 If the latter is the fundamental purpose of the law, then it is hardly clear that Congress has not acted “with an eye towards the interests of all affected persons.”45 Congress is trying to make sure that everyone equally has access to adequate and affordable health care. Lawson and Kopel have not explained why that is not “to treat them all fairly.”46 Indeed, it is arguable that Congress violated its fiduciary obligations by allowing the health care issue to fester, and millions to go uninsured, for decades before it finally addressed it.

Maybe Lawson and Kopel understand the impartiality requirement more radically than this: to require not just that government act for impartial reasons, but that all laws not benefit or harm any distinct class of citizens. There may not be “political favorites.”47 But all laws classify and create winners and losers. If that is what is forbidden, then all laws would be, at least presumptively, unconstitutional.48 How that presumption of anarchy could be rebutted—and what the new “general federal ‘equal protection’ doctrine that extends far beyond the specific case of the individual mandate”49 would entail—is something that Lawson is not yet ready to tell us. Until he does, the claim that the mandate violates this rule is too cryptic to answer.

II. A Larger Agenda

I said at the outset that their “reply” may not really be a reply. They implicitly concede my central claim, that the mandate is plainly legitimate under the Necessary and Proper Clause as it has been understood in the United States for more than half a century. The judicial opinions declaring the mandate unconstitutional were transparently dishonest in claiming that their approach was required by (or even consistent with) settled precedent concerning the scope of congressional power.50 Lawson and Kopel properly treat those arguments as beneath their notice. Conformity with precedent is no part of their project.

The rules that Lawson and Kopel’s originalist research claims to have uncovered,51 if implemented, would seem to accomplish just what I have said that other arguments against the mandate would do: “randomly blow up large parts of the U.S. Code.”52 But this cannot be said of Lawson and Kopel. It rather appears that they would deliberately blow up large parts of the U.S. Code. Why would one think that the destruction of so much existing American law is appropriate? It would obviously be silly to claim that settled law is untouchable, but is it not equally obvious that it should not be trashed whenever new archival research casts doubt on its originalist credentials?

Of the two authors, Lawson is the one with the most thoroughly worked-out interpretive theory, so I will focus on his other work for an answer.53 The most prominent scholars who claim that the mandate is unconstitutional are all hunting for bigger game; all have long sought a revolution in federal power.54 Lawson, one of our most sophisticated constitutional theorists, is no exception. But even within this crowd, his well-matured constitutional theory incorporates an unusual degree of recklessness.

Lawson is untroubled by the wholesale overruling of precedent, because he does not think that precedent is part of the Constitution and thinks that it is almost always unconstitutional to give it any weight at all.55 He is also confident that “[t]he post-New Deal administrative state is unconstitutional.”56 The elimination of all federal regulation of the complex American economy might, of course, devastate the lives of millions of people, turning American life into a nightmare of pollution, consumer fraud, contaminated food and drink, and rampant racial discrimination. A judicial decision that U.S. paper money is worthless might throw the whole world economy into depression, possibly precipitating famines and wars. Other opponents of the health care law—such as Randy Barnett and Richard Epstein,57 who want to dismantle the modern administrative state—are naively optimistic about the results that will follow from its demolition.58 Lawson just does not care. He is prepared “to hold fast to the Constitution though the heavens may fall.”59 In interpreting the Constitution, he has warned, we must not “contaminate the interpretative inquiry with concerns about real-world decisionmaking.”60

Lawson thinks that constitutional interpretation must never be contaminated by such nontextual considerations—that, in fact, any mode of reasoning that does take consequences into account is not entitled to be called interpretation.61 Rather, it is “self-evident”62 that interpreters must read constitutional texts in isolation from their effects. It makes no difference whether we are reading the Confederate constitution or the one that governs the United States today.63

It would be silly to wrestle with him64 over who gets to use the term “interpretation,” but I will note that the public meaning of the term in contemporary America refers to the practice of parsing the Constitution as it is, in fact, done by the federal courts. American constitutional interpretation—like it or not, that is the label that the natives around here attach to the practice—does not rely exclusively on original intention or meaning. Philip Bobbitt has shown that American constitutional argument also draws on precedent, inferences from the overall structure of the government that has been established, prudence, and the Court’s sense of the national ethos. Constitutional arguments aim to draw all of these together into coherent accounts of constitutional meaning.65 Because we must live with the results, our deepest collective aspirations also inevitably influence the interpretive inquiry.66 We do not read the Constitution we have to live with the way we read the Confederate one.

The real originalist question is one of original purpose at different levels of abstraction. The commerce power has been stretched beyond anything specifically intended by the Framers. But the Framers also had a more abstract intention: in Robert Stern’s words, “that no hiatus between the powers of the state and federal governments to control commerce effectively was intended to exist,”67 and that the people of the United States should not “be entirely unable to help themselves through any existing social or governmental agency.”68 It is like the old question whether the general purpose of the Fourteenth Amendment—to mandate the legal equality of blacks—should trump its Framers’ specific intention to permit school segregation and miscegenation laws.69 The general purpose of the Constitution—the overriding reason why the Articles of Confederation were abandoned, and a reason known by every reasonable interpreter of the document at the time—was that the country was facing pressing national problems that no one state could solve.70 This is why it is a legitimate move in constitutional argumentation to dismiss an argument for constraints on congressional power, even constraints that some Framers may specifically have had in mind as “so pernicious in its operation that we shall be compelled to discard it.”71 Lawson and Kopel’s originalism is not the only possible originalism.72 What is fundamentally perverse about their reading of the Necessary and Proper Clause is that it reproduces the situation that the Constitution was an attempt to overcome.73

III. “Originalism” as a Rationalization for Oligarchy

There is also a question of democratic legitimacy. The mandate was enacted by Congress after a big, public, political fight. Lawson and Kopel propose to override this and to have the federal courts strike it down, in the name of a highly contestable conception of the Constitution.

Lawson, a former Reagan Administration official, is frustrated that Presidents Ronald Reagan and George H.W. Bush never opposed legislation on the grounds that it exceeded Congress’s enumerated powers and certainly never tried to dismantle the modern regulatory state.74 They did not do it because they knew it would be politically disastrous. Voters do not like poisoned food, air, and water.

The solution, then, is to do it through the courts: to impose—in the name of an admittedly fictitious We the People of the United States75—results that most of the actual population of the United States would hate. To Lawson, it does not matter what the people think. A small elite of enlightened ones, drawing on specialized knowledge, will bring us a higher form of democracy that reflects the people’s deepest interests, and they will do it by seizing centralized power.

But of course, we need to put originalist scholarship in context.76 Lawson may be ready to dismantle the entire modern administrative state, but—as he often cheerfully admits77—that is not going to happen. His work is, however, likely to be right handy for political actors inclined to be more selective. A revealing text here is a footnote from Justice Clarence Thomas’s concurrence in United States v. Lopez,78 which advocated a restriction of federal power much like Lawson and Kopel advocate, but with this proviso:

Thomas’s deference to precedent is only partial, however. He is still prepared to use originalism to trash those aspects of existing practice that he is satisfied that the country can do without.80 There is a sense in which Thomas is more moderate than Lawson: a proposal to shoot everyone is more extreme than a proposal to shoot only those whom some central decisionmaker decides to liquidate. On the other hand, Thomas’s modification of Lawsonian originalism transforms it from an exotic and weird philosophy of governance into one that is depressingly familiar: a little group of oligarchs get to govern everyone else.81 Lawson seems a charming, mostly harmless82 crank because his proposals are so unreal. In the hands of Thomas, however, originalism loses its harmlessness and thus its charm.

Conclusion: Bad News for Everybody

If we read the Constitution as Lawson and Kopel propose, then historical research of the kind that they have been doing becomes a lever that can move the world. New evidence of the original meaning of the Necessary and Proper Clause shows that American law misconstrues that meaning. So much the worse for American law. The rest of us, if we believe in the rule of law, are obligated to upend our lives and adapt to the new marching orders that emerge from the archives, at least until the next round of research yanks us off in another direction.83 This would be an insane way to run a civilization. It is bad news for everybody.

Andrew Koppelman is John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University and a former Senior Editor of The Yale Law Journal. He gives thanks to Bob Bennett, Arpit Garg, David Kopel, Gary Lawson, Simon Lazarus, Steve Lubet, and the Northwestern Law Faculty Workshop for comments on an earlier draft, to Steve Calabresi for helpful conversations, and to Marcia Lehr for characteristically superb research assistance.

Preferred citation: Andrew Koppelman, Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism, 121 Yale L.J. Online 515 (2012), http://yalelawjournal.org/forum/bad-news-for-everybody-lawson-and-kopel-on-health-care-reform-and-originalism.