05/07/2012 09:48 am ET Updated Jul 07, 2012

The Constitutionality of the Individual Mandate

The briefs and the recent oral arguments before the Supreme Court on the provision for an individual mandate in the Affordable Care Act would have benefited from close attention to two opinions by the great Chief Justice John Marshall, which are referred to only in snippets. John Marshall helped to create the original understanding of the Constitution when he stood with James Madison in the Virginia ratifying convention to defend and explain the Constitution. Someone today searching for the original understanding of the Constitution can hardly do better than to consult the opinions -- usually unanimous opinions -- written by Marshall. In two important cases, McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824), Marshall stated with elegant simplicity and persuasiveness the power of Congress to implement the enumerated powers granted to it under Article I, section 8, of the Constitution.

In McCulloch, Marshall explained why the creation of the Bank of the United States was an appropriate means to execute the enumerated power to tax, even though the Constitution says nothing about creating a bank. Marshall pointed to the final clause of Article I, section 8, which states that Congress has the power "to make all Laws which shall be necessary and proper for carrying into Execution" the enumerated powers, such as the power to tax. Marshall did not argue that the federal government has unlimited power or that the Bank was constitutional because it was a tax under the tax power. Obviously a bank is not a tax and a tax is not a bank. Rather, Marshall argued that the Bank was constitutional because in the opinion of Congress it was "necessary and proper" to execute the tax power. As he put it cleanly and beautifully and powerfully:

"We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional."

Another enumerated power under Article I, section 8, is the power "to regulate Commerce ..." All of the parties to the arguments before the Court seemed to agree that health insurance is commerce. The next questions should then have been whether the individual mandate to buy insurance is an appropriate means by which to carry into execution the Health Care Act, whether the mandate is prohibited by the Constitution, and whether it is consistent with the letter and spirit of the Constitution. Yet the arguments made against the mandate were different. The lawyers argued: (1) that there is no provision in the Constitution to permit this mandate; and (2) that the failure to buy insurance is not commerce and that the mandate is creating commerce not regulating it. But neither argument is relevant under the tests established in McCulloch. Just as there does not have to be a specific provision in the Constitution authorizing the creation of the Bank to execute the tax power, and the Bank does not have to be a tax, so there does not have to be a provision in the Constitution to justify the mandate, nor does the mandate have to be a regulation of commerce. Again, the only questions should have been, is the mandate an appropriate means to execute the Affordable Care Act, which is a regulation of commerce, is it prohibited by the Constitution, and is it consistent with the letter and spirit of the Constitution?

One other line of inquiry was an astonishing inquiry into whether the mandate is unconstitutional even if it is necessary because it is an exercise of "plenary" power reserved to the states, in which case it violates the sovereignty of the states as provided for in the Constitution (it's not clear where) and is, therefore, not "proper." But in another great case, Gibbons v. Ogden, Chief Justice Marshall addressed that question as well, this time specifically with regard to the commerce clause. The power to regulate commerce, he wrote,

"like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. These are expressed in plain terms. ... If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States." [emphasis added]

Insofar as most of the states require drivers to purchase automobile insurance, and Massachusetts in particular requires the purchase of health insurance, so too the federal government under Marshall's opinion would have a similar power. So long as Congress conforms to the contours specified in McCulloch and Gibbons, it does in fact have plenary power, and state sovereignty must yield to it.

For further guidance, the parties to this case might have looked at James Madison's Federalist 44, first published on Jan. 25, 1788. In his defense of the necessary-and-proper clause, Madison stated that,

"No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorised; wherever a general power to do a thing is given, every particular power necessary for doing it, is included."

And in Federalist 45, published on the following day, Madison made a profound point that goes to the heart of his understanding of federalism:

"Were the plan of the Convention adverse to the public happiness, my voice would be, reject the plan [i.e., the Constitution]. Were the Union itself inconsistent with the public happiness, it would be, abolish the Union. In like manner as far as the sovereignty of the States cannot be reconciled to the happiness of the people. The voice of every good citizen must be, let the former be sacrificed to the latter."

I believe Chief Justice Marshall read The Federalist carefully. Would that the parties to this case had done the same and had also read the opinions of our greatest chief justice.

It is also noteworthy, that during Marshall's 34 years as chief justice, his court was marked by remarkable deference to Congress, what many of us extol as judicial restraint. Only one minor part of one act of Congress (and only that part) ever was struck down as unconstitutional.

The original understanding of the Constitution, which many of us believe is often discernible and should be controlling, and a conviction that the Court should exercise its power to strike down an act of Congress only when it is unambiguously unconstitutional, which is surely not the case here, would have argued persuasively against bringing suit against the individual mandate.