Necessary and, in the end, proper

First, I thought I'd point out an interesting back-and-forth between Randy Barnett and Jack Balkin  about the constitutionality of the individual mandate.  In a post that I linked to in my last post, Barnett argued that DOJ's reliance on the tax power means that his attacks on the commerce clause justification must not be—as some have alleged—frivolous.  Prof. Balkin responds with the obvious point that trial lawyers always make every available argument, so DOJ's making the "tax" argument doesn't necessarily mean that the attack on the commerce clause justification has merit.  Then Balkin goes on to make a rather strange (and interesting) meta-argument that people like Barnett aren't just making assertions about the non-frivolity of their position, but are actually making their position non-frivolous by the act of making the argument:

Randy Barnett wants you to know that his arguments are not frivolous. But he is not simply reporting a fact about the world. He is engaged in a performative utterance. He is trying to make this statement true by the fact that he, a prominent constitutional theorist and litigator, is saying it. And he is trying to get enough people to agree with him so that what he says is true will actually become true.

(emphasis mine).  Surprisingly, Barnett agrees!  Responding to a related point, he says, "Jack [Balkin] is right about this. I and others are trying to do exactly this."  Lots of interesting stuff in the exchange.
Second, I suppose I agree with Mr. Gillette that the Supreme Court is likely to uphold the individual mandate based on an extension of the Wickard v. Filburn rationale (a constitutional theory that I like to call "a little dab'll do ya").  But Wickard v. Filburn does not hold that the commerce clause allows the federal government to regulate non-economic activity or to force people to engage in commercial activity.  That is arguably what the federal government is trying to do with the individual mandate, which forces people to engage in a certain private commercial transaction (the purchase of health insurance).  So Wickard v. Filburn would be directly on point only if it held that the federal government had the power to force people to grow wheat.

But that's not the end of the story.  Clearly Congress has the power to regulate the business of health care, including health insurance, under the commerce clause.  Congress also has the power to enact laws that are "necessary and proper for carrying into execution the foregoing powers."  U.S. Const. Art. 1, sec. 8.  Because the individual mandate is necessary to prevent a so-called insurance death spiral, the individual mandate is a crucial linchpin in the health insurance reform bill.  So it is definitely necessary.  But is it proper?  Here, we can look to the wisdom of Justice Scalia, from his concurrence in Gonzales v. Raich, the case challenging federal regulation of medical marijuana:

Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances. Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants.

As part of this power, Scalia notes that the under Court's prior cases "Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce."  It's not a slam dunk, but I think the individual mandate passes muster under this kind of test.

What I like about using the Necessary and Proper clause here is that it provides a limiting principle.  The rule isn't that Congress can force people to do anything by taxing them not to do it or by deeming their failure to engage in any particular activity a kind of reverse commerce.  Instead, the individual mandate stands because it is a necessary and crucial component of an indisputably proper effort to regulate the health insurance industry.