During testimony recently before the Senate Judiciary Committee on the constitutionality of the health care reform law, Georgetown Law Professor and opponent of the Affordable Care Act Randy Barnett asserted that “No one claims that the individual mandate is justified by the original meaning of either the Commerce Clause or Necessary and Proper Clause.”  Well, Professor Barnett cannot make that assertion any longer.  In a brief filed yesterday in the U.S. Court of Appeals for the Fourth Circuit, supporting the federal government in its appeal of a lower court ruling striking down the Act, Constitutional Accountability Center (CAC) defended the minimum coverage provision—the so-called “individual mandate”—on squarely originalist grounds.

Drawing on a treasure trove of documents collected by the University of Virginia as part of the George Washington Papers collection, which have provided fresh insight into the views of George Washington, Alexander Hamilton, and other Founders on the scope of federal powers under the Constitution they helped write, this brief demonstrates that our Constitution creates a national government capable of solving national problems.  A faithful reading of the Constitution’s text and history shows that the Affordable Care Act’s minimum coverage provision is plainly constitutional under the Commerce Clause and the Necessary and Proper Clause.

Our Constitution was drafted in 1787 “in Order to form a more perfect Union”—both more perfect than the British tyranny against which the Founding generation had revolted and more perfect than the flawed Articles of Confederation under which Americans had lived for a decade since declaring independence.  The Father of our Nation, George Washington, and the other delegates to the Constitutional Convention shared a conviction that the Constitution must establish a national government of substantial power, in contrast to the extremely weak central government of the Articles.  In considering how to grant such power to the national government, the delegates to the Constitutional Convention adopted Resolution VI, which declared that Congress should have authority “to legislate in all Cases for the general Interests of the Union, and also in those to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual legislation.”

Tasked with translating the principle of Resolution VI into specific provisions, the Committee of Detail drafted Article I of the Constitution to grant Congress the broad power to, among other things, “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  U.S. Const. art I, § 8, cl. 3.  While the concept of “commerce” in this Clause has always referred to economic activity or trade, the original meaning of “commerce” in the Constitution carried a broader meaning: as Chief Justice John Marshall explained in Gibbons v. Ogden (1824), “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse.” (Marshall himself was a delegate to Virginia’s constitutional ratifying convention.)  And, of course, the Commerce Clause must be read against the backdrop of Resolution VI, which resolved to draft a Constitution that gave the national government sufficient power to address issues of federal concern.

Particularly as related to the Commerce Clause, federal issues may generally be described as problems that single states cannot solve on their own, either because a matter has spillover effects in other states or because there is a collective action problem in which states are unwilling or unable to act effectively.  This focus on issues that are of truly federal concern makes the Commerce Clause a powerful grant of authority to Congress, but it also places significant limits on federal regulation: Congress can only act if a given problem genuinely spills across state or national lines.  Accordingly, when opponents of health care reform crow about “broccoli mandates” and claim that the Commerce Clause will have no limits if the minimum coverage provision is upheld, it is important to realize that the Founders did place an important limiting principle in the Commerce Clause—but it is derived more from the phrase “among the several States” than from an improperly narrow reading of “commerce.”  The minimum coverage provision falls squarely within Congress’s ability to regulate “commerce” “for the general interests of the Union,” and also in those instances in “which the States are separately incompetent.”

While the minimum coverage provision is constitutional under the original meaning of the Commerce Clause, it is also a constitutional exercise of Congress’s power to pass legislation that helps to effectuate the federal government’s constitutionally granted powers.  The Necessary and Proper Clause gives Congress the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”  As Alexander Hamilton explained to President Washington in a 1791 letter on the constitutionality of an act to establish a national bank, “[t]he means by which national exigencies are to be provided for, national inconveniences obviated, national prosperity promoted, are of such infinite variety, extent and complexity, that there must of necessity be great latitude of discretion in the selection and application of those means.”

Far from the cramped interpretation of the Clause used by the district court in Virginia that struck down the minimum coverage provision, an interpretation that would permit Congress to regulate only by using means that are themselves covered by the Commerce Clause (effectively rendering the Necessary and Proper Clause a nullity), the grant of power to pass legislation that is “necessary and proper” was intended to be sweeping.  As the Founding-era Supreme Court held in McCulloch v. Maryland (1819), the Framers of the Constitution did not intend to impede the exercise of enumerated powers “by withholding a choice of means,” noting that, unlike the Articles of Confederation, the Constitution does not “require[] that everything granted shall be expressly and minutely described.”

Our first President, the rest of the Framers, and the Supreme Court from the Founding to the present have all recognized that the Necessary and Proper Clause grants Congress the power to use means outside the enumerated list of Article I powers to achieve the ends contemplated in the Constitution.  In the modern day case of health care reform, Congress determined that the minimum coverage provision was the appropriate means of regulating the health care and insurance markets.  Since the Act does not run afoul of any other constitutional provision—there is no constitutional right to inflict uninsured health care costs on the American taxpayers—health care reform falls squarely within Congress’s power to enact necessary and proper legislation to carry out its Commerce Clause power.

While some today may prefer not to have a government of such broad power, a faithful reading of the Constitution’s text and history, as conservative scholar Michael Stokes Paulsen told the equally conservative Federalist Society, leads to the conclusion “that the powers conferred on the national government are huge, sweeping, overlapping, and, when taken together, very nearly comprehensive.”  (31 Harv. J.L. & Pub. Pol’y 991, 991-92 (2008)).  Paulsen himself noted that even if one believes that, “politically, the full exercise of such powers might be unpopular or constitute bad public policy does not mean that the Constitution did not, in fact, confer such broad powers.”  The Constitution is the Constitution, whether it fits with one’s policy preferences or not.

The constitutionality of the Affordable Care Act, including its minimum coverage provision, should not be judged by the Constitution according to the Tea Party, but by our actual Constitution—as explained by George Washington, our first President, Alexander Hamilton, co-author of the Federalist Papers, and John Marshall, a member of the Virginia ratifying convention and Chief Justice of the United States, among others.  Under the original meaning of the Constitution, the two lower court judges who have struck down the minimum coverage provision as unconstitutional are just flat out wrong.