Bad News for John Marshall
12 Pages Posted: 29 Mar 2015
Date Written: 2012
In "Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate," we demonstrated that the individual mandate’s forced participation in commercial transactions cannot be justified under the Necessary and Proper Clause as the Clause was interpreted in McCulloch v. Maryland. Professor Andrew Koppelman’s response, "Bad News for Everybody," wrongly conflates that argument with a wide range of interpretative and substantive positions that are not logically entailed by taking seriously the requirement that laws enacted under the Necessary and Proper Clause must be incidental to an enumerated power. His response is thus largely unresponsive to our actual arguments.
Keywords: Necessary and Proper Clause, Incidental powers, Obamacare, Affordable Care Act
JEL Classification: I18, K32, K19
Suggested Citation: Suggested Citation