This just in: leftist law professors at elite east coast law schools like Obamacare!

Author: Timothy Sandefur

The Yale Daily News has an article about Prof. Amar’s recent op-ed and responses to it, including mine. I’m sure Liberty Blog readers will be astounded to know that Harvard and Yale law professors deprecate the constitutional objections to Obamacare.

Sadly, the Daily News article suggests that Prof. Amar has not improved his constitutional aim any since last week:

He also argued that the central question in the Obamacare case is how much power the Constitution gives Congress, for which he cites Justice John Marshall’s famous 1819 opinion in “McCulloch vs. Maryland.” Marshall argued that judges should defer to members of Congress, and that Congress should have the power to enact laws that fall within its “basic mission.”

The 1819 case concerned the constitutionality of a federal bank.

“Though the words ‘federal bank’ nowhere appear in the Constitution’s text, Marshall explained that Congress nevertheless had the power to create such a bank to facilitate national security and interstate commerce,” Amar said. “Obamacare is no different.”

Well, actually, it’s entirely different. In McCulloch, Marshall held that the necessary and proper clause authorized the Congress to create a national bank, because a national bank would facilitate various federal powers. Unlike the Obama Administration and its supporters, Chief Justice Marshall was very sensitive to the fact that Congress has only limited, enumerated powers, and warned that the necessary and proper clause should not be interpreted as giving Congress power to do whatever it wanted to:

We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended.  But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people.  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….

The questions then arise: is the Individual Mandate appropriate? is it prohibited? does it consist with the letter and spirit of the Constitution? Without answering those questions, citing McCulloch merely begs the question.

Marshall went on to explain that there was a long common law history of government using corporations, like the national bank, to accomplish legitimate government goals. Nor did the national bank pose a significant threat to the constitutional structure. Congress could not be allowed to abuse the necessary and proper clause: “Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land,” he wrote.  But the clause allowed Congress to enact a law that “is not prohibited, and is really calculated to effect any of the objects intrusted to the Government.”

The Individual Mandate, and other provisions of Obamacare, go far beyond the limits suggested in McCulloch. It allows Congress to force people to engage in commercial transactions who would otherwise not have done so. It burdens, if it doesn’t radically alter, the federalist structure by imposing vastly increased expenditure requirements on the states. And it does so in order to provide Americans with health insurance—which is not itself “within the scope of the Constitution” or an “object intrusted to the Government.” Certainly it is not, as Prof. Amar claims, part of part of the government’s “basic mission.” Not a word about providing health care is to be found in the Constitution of the United States. At the very least, it is reasonable to deny that the Individual Mandate “consists with the letter and spirit of the Constitution.”

Most importantly—and something Marshall wouldn’t have let get past him: the question that the Obama Administration and its supporters have never once been able to answer: if Congress can do this, what can it not do?

I realize the Daily News quote is just a sound bite, and Prof. Amar may have explained further why he thinks McCulloch v. Maryland answers the question raised in these cases. But the fact is, that case doesn’t answer the question.