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Incidental Unconstitutionality, Individual Mandate, Bad News, Necessary and Proper Clause

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Gary Lawson & David Kopel's Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate argues, on the basis of recent research, that the Necessary and Proper Clause incorporates norms from eighteenth-century agency law, administrative law, and corporate law, and that the mandate (and perhaps much else in the U.S. Code, though they are coy about this) violates those norms. The Necessary and Proper Clause, as they understand it, tightly limits the scope of implied powers. These claims are obscure even on their own terms. It is mysterious how we are to know whether the power to impose a penalty for going without health insurance is less "dignified" or "worthy" than the power to regulate interstate commerce. Nor is it clear how an effort by Congress to guarantee that all Americans have adequate health care could violate a fiduciary duty of impartiality. Their logic implies the greatest revolution in federal power in American history. (And this would decidedly be a revolution from above.) There is also the larger methodological question of the role of original meaning in constitutional interpretation. They think that new evidence of original meaning is, without more, a legitimate basis for hamstringing Congress's power to address pressing national problems. This would be an insane way to run a civilization. It is bad news for everybody.

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