[T]this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. Id., at 78; Katzenbach v. McClung, 379 U.S. 294, 301—302 (1964); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942); Shreveport Rate Cases, 234 U.S. 342, 353 (1914); United States v. E. C. Knight Co., 156 U.S. 1, 39—40 (1895) (Harlan, J., dissenting).1 And the category of “activities that substantially affect interstate commerce,” Lopez, supra, at 559, is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.- Justice Antonin Scalia's concurrence in Gonzales v. Raich.
In Bondi v. Sebelius (PDF), Florida federal district court judge Roger Vinson rules that:
The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers.
Either Justice Scalia is right or Judge Vinson is right. Their respective views of the Necessary and Proper Clause are not reconcilable. The constitutionality of the individual mandate in the Patient Protection and Affordability Act (PPACA) could well turn on this point. More on the flip.
In Gonzales v. Raich, Justice Stevens, writing for himself and 4 other Justices, delivered the opinion of the Court. Justice Stevens described the question in this manner:
The question presented in this case is whether the power vested in Congress by Article I, §8, of the Constitution “[t]o make all Laws which shall be necessary and proper for carrying into Execution” its authority to “regulate Commerce with foreign Nations, and among the several States” includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.
The Raich Court answered in the affirmative:
Unlike [the activities] at issue in Lopez and Morrison, the activities regulated by the [Controlled Substances Act] CSA are quintessentially economic. “Economics” refers to “the production, distribution, and consumption of commodities.” Webster’s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.36 Such prohibitions include specific decisions requiring that a drug be withdrawn from the market as a result of the failure to comply with regulatory requirements as well as decisions excluding Schedule I drugs entirely from the market. Because the CSA is a statute that directly regulates economic, commercial activity, our opinion in Morrison casts no doubt on its constitutionality.
Ironically, The Raich majority did not discuss the Necessary and Proper Clause in any detail outside of the discussion of the question presented. In this sense, Justice Scalia's concurrence is extremely helpful for clarifying the issue. The reason is that Judge Vinson, like the conservative advocates and jurists before him, have hung their hat on the issue of the "activity/inactivity" distinction. Judge Vinson wrote:
It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power” [Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only. Surely this is not what the Founding Fathers could have intended.
Whatever the merits of Judge Vinson's views of the activity/inactivity distinction with regard to the Commerce Clause power, it does not really address the issue of whether the Necessary and Proper Clause provide the Congress with such power. A review of Justice Scalia's concurrence in Raich is instructive:
Congress’s authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” 514 U.S., at 561. This statement referred to those cases permitting the regulation of intrastate activities “which in a substantial way interfere with or obstruct the exercise of the granted power.” Wrightwood Dairy Co., 315 U.S., at 119; see also United States v. Darby, 312 U.S. 100, 118—119 (1941); Shreveport Rate Cases, 234 U.S., at 353. As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, “it possesses every power needed to make that regulation effective.” 315 U.S., at 118—119.
Although this power “to make … regulation effective” commonly overlaps with the authority to regulate economic activities that substantially affect interstate commerce,2 and may in some cases have been confused with that authority, the two are distinct. The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.
(Emphasis supplied.) Justice Scalia's statement bears repeating:
The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power.
Even Justice Thomas' dissent recognizes the very different nature of exercise of power under the Necessary and Proper Clause:
More difficult, however, is whether the CSA is a valid exercise of Congress’ power to enact laws that are “necessary and proper for carrying into Execution” its power to regulate interstate commerce. Art. I, §8, cl. 18. The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power.1 Nor is it, however, a command to Congress to enact only laws that are absolutely indispensable to the exercise of an enumerated power.
In McCulloch v. Maryland, 4 Wheat. 316 (1819), this Court, speaking through Chief Justice Marshall, set forth a test for determining when an Act of Congress is permissible under the Necessary and Proper Clause:
“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.” Id., at 421.
To act under the Necessary and Proper Clause, then, Congress must select a means that is “appropriate” and “plainly adapted” to executing an enumerated power; the means cannot be otherwise “prohibited” by the Constitution; and the means cannot be inconsistent with “the letter and spirit of the [C]onstitution.” Ibid.; D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789—1888, pp. 163—164 (1985). The CSA, as applied to respondents’ conduct, is not a valid exercise of Congress’ power under the Necessary and Proper Clause.
(Emphasis supplied.) Justice Thomas reasoned:
On its face, a ban on the intrastate cultivation, possession and distribution of marijuana may be plainly adapted to stopping the interstate flow of marijuana. Unregulated local growers and users could swell both the supply and the demand sides of the interstate marijuana market, making the market more difficult to regulate. Ante, at 9—10, 19 (majority opinion). But respondents do not challenge the CSA on its face. Instead, they challenge it as applied to their conduct. The question is thus whether the intrastate ban is “necessary and proper” as applied to medical marijuana users like respondents.
(Emphasis supplied.) Thus, even in dissent, Justice Thomas would not have struck down the law in question, but merely the application in that case. In the mandate cases, an "as applied" challenge is not ripe. The mandate has not yet been applied to anyone. Also revealing is the reasoning Thomas uses to find an "as applied" violation:
These controls belie the Government’s assertion that placing medical marijuana outside the CSA’s reach “would prevent effective enforcement of the interstate ban on drug trafficking.” Brief for Petitioners 33. Enforcement of the CSA can continue as it did prior to the Compassionate Use Act. [. . .] No one argues that permitting use of these drugs under medical supervision has undermined the CSA’s restrictions.
But even assuming that States’ controls allow some seepage of medical marijuana into the illicit drug market, there is a multibillion-dollar interstate market for marijuana. Executive Office of the President, Office of Nat. Drug Control Policy, Marijuana Fact Sheet 5 (Feb. 2004), http://www.whitehousedrugpolicy.gov/... ana/index.html. It is difficult to see how this vast market could be affected by diverted medical cannabis, let alone in a way that makes regulating intrastate medical marijuana obviously essential to controlling the interstate drug market.
To be sure, Congress declared that state policy would disrupt federal law enforcement. It believed the across-the-board ban essential to policing interstate drug trafficking. 21 U.S.C. § 801(6). But as Justice O’Connor points out, Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power. Ante, at 13—14 (dissenting opinion). Congress cannot define the scope of its own power merely by declaring the necessity of its enactments.
(Emphasis supplied.) Here the essential nature of the individual mandate to the regulatory scheme enacted in the PPACA is not in dispute. Indeed, Judge Vinson struck down the entire PPACA on just such a finding. Given the findings of Judge Vinson, one could argue that Justice Thomas' dissent in Raich also supports the constitutionality of Congress' exercise of the Necessary and Proper Clause power to enact the individual mandate as part of the regulatory scheme embodied in the PPACA.
Ironically enough, it is only the now retired Justice O'Connor's dissent (joined by the late Chief Justice Rehnquist) that provides some support for the views of Judge Vinson:
Seizing upon our language in Lopez that the statute prohibiting gun possession in school zones was “not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated,” 514 U.S., at 561, the Court appears to reason that the placement of local activity in a comprehensive scheme confirms that it is essential to that scheme. Ante, at 21—22. If the Court is right, then Lopez stands for nothing more than a drafting guide[.]
Even then, the concern expressed by Justice O'Connor is mostly with regard to state sovereignty and federalism. Given the PPACA's "opt-out" provision, whereby a state can opt out of the PPACA scheme is it provides a plan that meets requirements stated in the law, even the state sovereignty/federalism concern expressed in Justice O'Connor's dissent is muted.
My own view of this legal/political dispute is that Republicans like talking about it, but are not really interested in winning this case. My further view is that there will not be a circuit split (all will uphold the constitutionality of the PPACA and the individual mandate) and the Supreme Court will never choose to hear the case. Time will tell.