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Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate


Gary Lawson


Boston University School of Law

David B. Kopel


Independence Institute; Denver University - Sturm College of Law

September 21, 2011

Yale Law Journal Online, Vol. 121, 2011

Abstract:     
In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate.

The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must exercise a subsidiary rather than an independent power, must be important or customary to achievement of a principal end, and must conform to standard fiduciary obligations.

From administrative law, the Necessary and Proper Clause embodies the closely-related principle of reasonableness in the exercise of delegated power, which independently requires conformance with a similar set of fiduciary norms, including the norms of acting only within delegated jurisdiction and of treating all persons subject to a public agent‘s power impartially.

Evidence from eighteenth-century corporate law – and the Constitution was widely recognized in the founding era as a type of corporate charter – confirms these conclusions about the meaning of the phrase "necessary and proper for carrying into Execution . . . ."

The power to order someone to purchase a product is not a power subordinate or inferior to other powers, such as the power to regulate voluntary commerce. The power to compel commerce is at least as significant – or, in eighteenth-century language, as "worthy" or of the same "dignity" – as the power to regulate insurance pricing and rating practices. It is therefore not incidental to other powers exercised by Congress in the PPACA and must be separately enumerated if it is to exist.

Second, the doctrine of principals and incidents and the principle of reasonableness both embody the fiduciary norm that agents exercising delegated power must treat multiple principals subject to those agents' power impartially. Interpreting the Necessary and Proper Clause to allow Congress to force private dealings with preferred sellers of products fails that basic fiduciary norm, as illustrated by founding-era concerns about Congress invalidly using the Necessary and Proper Clause power to create monopolies.

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Date posted: June 24, 2011 ; Last revised: September 28, 2011

Suggested Citation

Lawson, Gary and Kopel, David B., Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate (September 21, 2011). Yale Law Journal Online, Vol. 121, 2011. Available at SSRN: http://ssrn.com/abstract=1869243

Contact Information

Gary Lawson
Boston University School of Law ( email )
765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-3812 (Phone)
David B. Kopel (Contact Author)
Independence Institute ( email )
727 East 16th Ave
Denver, CO 80203
United States
303-279-6536 (Phone)
303-279-4176 (Fax)
HOME PAGE: http://www.davekopel.org
Denver University - Sturm College of Law
2255 E. Evans Avenue
Denver, CO 80208
United States
HOME PAGE: http://www.davekopel.org
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