NARRATOR: Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about how Federalism works. Today’s episode features Professor Randy E. Barnett, who is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center. He teaches constitutional law and contracts, and is Director of the Georgetown Center for the Constitution. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. - PUBLIUS: The Necessary and Proper Clause gives power to Congress to make laws. The Commerce Clause gives Congress the power to regulate commerce. How have these two powers have been interpreted by the Supreme Court to allow Congress to regulate almost anything? Today we’re talking with Professor Randy Barnett who will explain what “commerce” meant in the founding era and what it encompasses now. RANDY BARNETT: When you see an enumerated powers case, you need to realize that most of the enumerated powers cases that you read are actually also Necessary and Proper Clause cases. The Necessary and Proper Clause is an enumerated power of Congress. It enumerates the power to make all laws which shall be necessary and proper for carrying into execution all the other powers that the Constitution gives to Congress. Today Dred Scott is considered to be one of the worst cases, if not the worst case, ever decided by the Supreme Court, but Prigg versus Pennsylvania ought to be included on the list of worst Supreme Court cases. What makes Prigg legally objectionable, however, is the fact that it did not hew to the enumerated powers scheme of the original Constitution and instead used what you might call a modern reading of the Necessary and Proper Clause to greatly expand the power of Congress, in this case, to pass a Fugitive Slave Act. Prigg versus Pennsylvania is a case that involved the constitutionality of the Fugitive Slave Act, which Congress had enacted pursuant to the Fugitive Slave Clause in Article 4 of the Constitution. The question arose, was the Fugitive Slave Act within the power of Congress under the Fugitive Slave Clause. The Fugitive Slave Clause is in Section 2 of Article 4 of the original Constitution. Salmon Chase maintained that Section 2 gave Congress no additional powers to enforce the Fugitive Slave Clause, it simply said that slaves shall be surrendered up upon demand of the party to whom their service is owed. He contrasted that with Section 1, which did give Congress an enumerated power to implement the Full Faith and Credit Clause. As well as Section 3, which gave Congress an enumerated power to enact all needful regulations to govern the territories. Because Section 2 included no enumerated power, Chase argued that Congress did not have power to enact the Fugitive Slave Clause. In Prigg versus Pennsylvania, Justice Story disagreed. Justice Story adopted an extremely broad reading of Necessary and Proper Clause in which he said that Congress had a power to make laws that would protect any rights that was acknowledged or recognized by the Constitution. It was in fact, a reading of the clause broader than even the post-New Deal reading of the Necessary and Proper Clause that we live with today. PUBLIUS: The expansion of the interpretation of the Commerce Clause is the most obvious example of a broad reading of enumerated powers. Can you discuss some of the most relevant Supreme Court cases on this issue? RANDY BARNETT: Gibbons versus Ogden involved the question of whether a navigation law was within the power of Congress to enact under it's commerce power. Chief Justice Marshall and the court held that it was and it clearly was within the original meaning of the word commerce. Navigation clearly was within the original meaning of the word commerce, which referred to the buying and selling, movement, and transportation of goods and people from one place to another. The ruling in Gibbons, that navigation laws are within the commerce power of Congress to enact is clearly consistent with the original meaning of the word commerce, which did include navigation laws. Where the opinion in Gibbons can be used to justify a broader reading of the commerce power is both because of its equation of the word commerce with the word intercourse. To modern ears, the word intercourse appears to be broader, although the original meaning of intercourse is really no more broad than the word commerce. Secondly, when John Marshall refers to among the several states as meaning concerns more states than one. That also invites a broader reading of the commerce power than its original meaning and even than the holding of Gibbons itself. PUBLIUS: What about cases involving the Civil Rights Act? Why did they involve the power of Congress to regulate commerce? RANDY BARNETT: There were two cases involving civil rights acted in 1964 that implicated the commerce power. The first was Heart of Atlanta, vs United States. Heart of Atlanta involved access to public accommodations like a hotel. In this case it was The Heart of Atlanta Hotel. And in this case, the court held that Congress had the power to remove burdens and obstructions to interstate commerce. In this case, restrictions on access to public accommodations, like a hotel, that inhibited the ability of African Americans to travel freely throughout the United States. This was a relatively unremarkable application of the commerce power, to a localized problem. Katzenbach versus McClung, involved Ollie's Barbecue, a restaurant that did not serve interstate travelers, but which used goods that had traveled in interstate commerce. Heart of Atlanta did expand the power of Congress under the commerce power. It did so by giving Congress jurisdiction over any activity that utilized items that had traveled in interstate commerce. This is today sometimes referred to as the jurisdictional hook. The jurisdictional hook claims that Congress has the power to regulate any activity, no matter how local it may be. If that activity is using goods or services that had once traveled in interstate commerce, that represents a substantial expansion of Congress's power under the Commerce Clause. Both Katzenbach and Heart of Atlanta might also have been decided under Section Five of the 14th amendment, which gave Congress the power to enforce the previous sections of the 14th amendment, including Section One, which contained the Equal Protection Clause. In passing the Civil Rights Act, Congress had asserted both its Commerce Clause power and its Section Five power. The Court however felt more comfortable applying its expanded post New Deal reading of the Commerce, and Necessary and Proper Clause to uphold the Civil Rights Act. These cases might better have been decided as Section Five cases, because doing so would have emphasized the civil rights nature of the statute that was being enforced here. By contrast, an expanding reading of the Commerce and Necessary and Proper Clauses would extend well beyond civil rights laws like this one. PUBLIUS: At the beginning, you mentioned that enumerated powers cases involve the Necessary and Proper Clause. What do you mean by that? RANDY BARNETT: I got my take on the Necessary and Proper Clause when I was litigating the Raich case, the medical marijuana case. Where we challenged the constitutionality of the controlled substances act as applied to local activity of using marijuana for medical purposes as authorized by state law. This required me to take a close look at the post new deal cases, to see what they really said, as opposed to how they're commonly taught. What I discovered is that the cases that are most commonly associated with having expanded the commerce power of Congress, were actually cases using the Necessary and Proper Clause, to expand Congress's power without expanding the original meaning of commerce in the Congress power. And the first case that is most responsible for that, is United States versus Darby. United States versus Darby is responsible for what's called The Substantial Effects Test, that gives Congress the power to reach not only commerce that takes place between one state or another, which is its commerce power, but also to reach inside of state. And to regulate any intra state activity that has a substantial effect on commerce that's taking place between one state or another. If you read that case carefully, and even if you read it not so carefully, you will see that the authority the court relies on for the substantial effects test, is McCulloch versus Maryland. And McCulloch versus Maryland, as you should know, is a Necessary and Proper Clause case. So the logic of Darby is that in order to regulate interstate commerce, it is necessary and proper that Congress reach activities that are not interstate commerce, but have a substantial effect upon interstate commerce. And now we have expanded Congress’ power beyond power to regulate commerce among several states. Wickard versus Filburn, simply takes the principle of Darby one step farther. In order to evaluate whether a particular activity by a particular person is within Congress's power. It's not enough to say, "Well that person's activity does not substantially affect commerce because it's too trivial to substantially affect commerce." So what Wickard does, is it adds the aggregation principle, and it says that you're not supposed to determine whether each person's activity substantially affects commerce, but whether that category or class of activities taken in the aggregate or as a whole, has a substantial effect on interstate commerce. And that's Wickard, that's moving one step beyond Darby by applying the aggregation principle. Where Wickard is mistaught, is by saying that the principle of Wickard was to reach homegrown activities, meaning bread that was raised and consumed by the family, the Roscoe Filburn family. That's not what the case was really about. The case was really about Roscoe Filburn, a local farmer, taking his wheat, feeding it to his livestock. Then marketing his livestock either in the form of meat or in the form of dairy products like eggs and milk. In other words, he was getting around a restriction on the amount of wheat that somebody could produce, that a farmer could produce, by marketing that wheat as meat through his produce. It had nothing what so ever to do with whatever bread that the Roscoe Filburn family may have consumed there. It was mentioned in the case, but that was only mentioned by the court in saying how little effect that had on interstate commerce, because it was very fixed. What had the big effect on interstate commerce, was the ability of farmers to shift their production of wheat from the interstate market, to the intrastate market, and then market their livestock in interstate market as a way to circumvent the price controls and the supply restrictions that were being put on the supply of wheat. Darby and Wickard set a high watermark for the power of Congress under the commerce power, slash Necessary and Proper Clause. That high watermark was not formally limited by the supreme court until the cases of the United States versus Lopez, and United States versus Morrison. Lopez and Morrison stand for the very simple proposition that Congress can only regulate wholly intrastate activity, if that intrastate activity is economic in nature. Economic in nature is a category beyond that of commerce. Commerce is buying and selling and movement of goods and services. And economic activity includes for example manufacturing, agriculture, productive activities. Economic is a broader category. And the doctorate of Lopez and Morrison is Congress can only reach intrastate activity that has a substantial effect on interstate commerce, if that activity is economic in nature. Now once you realize that Darby and Wickard are about extended Congress's power under the Necessary and Proper Clause, then it immediately becomes obvious that Lopez and Morrison are about limiting Congress's power under the Necessary and Proper Clause. Lopez and Morrison, which are considered Commerce Clause cases, in part because Chief Justice Rehnquist only refers to the Commerce Clause, and doesn't refer to the Necessary and Proper Clause, are really Necessary Proper Clause cases themselves. Because they're providing a limit on the Substantial Effects doctrine and the Substantial Effects doctrine is a Necessary and Proper Clause doctrine. The logic of Lopez and Morrison is that Congress can reach intrastate activity if it has a substantial effect on interstate commerce, and should not be able to reach intrastate activity that is remote from interstate commerce. Now, the courts are not going to be able to decide what's remote and what's not remote, so instead they have a judicially administrable line between economic activity and non economic activity. The assumption being, if the local activity is economic in nature, it involves the production or consumption of goods, then it's likely to be closely related to interstate commerce. Related enough to justify Congress reaching it. If the local activity is not economic, like for example possessing a gun within 1000 feet of a school or committing gender motivated violence, which was an issue in the Morrison case, then the idea here is that that activity is quite remote from Congress's power to regulate interstate commerce, and Congress may not reach it. So Lopez is decided in 1995, five years later, in 2000 Morrison is decided. Five years after that, the court considers Gonzales versus Raich in 2005. Raich involved the question of whether Congress, under its power to regulate interstate commerce can reach locally home grown marijuana that's being grown and used for medical purposes, as authorized by California law. I was one of the lawyers that represented Angel Raich and Dianne Manson in their constitutional challenge. And the argument that we made, is that the marijuana that Dianne grew for herself, or that Angel's caregivers grew for her, this marijuana was not a result of an economic activity. They did not buy it, they did not sell it and it was not made from anything that had ever traveled in interstate commerce. It was strictly a non economic local activity. So under Lopez and Morrison, Congress should not be able to reach local activity, that even in the aggregate had a substantial effect on interstate commerce. If that local activity was non economic in nature. We claimed that was what was going on in the Raich case. We lost the Raich case, six to three. The logic of the majority opinion written by Justice Stevens is, to follow the economic, non economic distinction of Lopez and Morrison, but then to use a 1966 Webster's dictionary definition of economic, that included the production of fungible goods. Since Dianne and Angel were producing a good, this the court said, was an economic activity, and therefore Congress could reach that activity under the Lopez and Morrison doctrines. Because it was economic. In this sense, the majority in Raich remained faithful to the opinions in Lopez and Morrison, except, it adopted a very broad definition of what economic activity is. Not completely unlimited I should say, but at least broad enough to go well beyond what we formally thought was an economic activity. Which was activity that was being produced for profit or for gain. Raich illustrates that when we're talking about the term necessary, the courts have adopted a very deferential approach to Congress's assessment about whether something is or is not necessary, and this dates back to McCulloch v. Maryland. .Justice Scalia did not join Justice Stevens majority opinion, which with its broad reading of what economic meant. Instead he offered an opinion that was structurally quite sound. He said that this was really a Necessary and Proper Clause case, and he was right about that. He focused on one line in the Lopez opinion, which said that Congress could reach even non economic activity, if doing so was essential to a broader regulation of interstate commerce. Because Congress had decided that reaching locally produced marijuana was essential to its broader regulation of interstate marijuana, he concluded that this was within Congress's power. To reach that conclusion, he gave broad deference to Congress to decide what was essential to a broader regulatory scheme. Essentially that's what divided our position from Justice Scalia's position. We argued that we were entitled to a hearing, so that a judge would determine whether it really was essential for Congress to reach locally grown marijuana, that was authorized and regulated by the state of California, in order to regulate the interstate trade in marijuana. Justice Scalia adopted a position of judicial restraint, in which he deferred to Congress's assessment, even though Congress had made no specific findings about medical marijuana, which was something that was relatively unknown at the time the controlled substances act was passed in 1970. So what differentiated our approach from Justice Scalia's approach, was the level of deference that would be afforded to Congress. In deciding whether it can reach local activities because it was necessary or essential to a broader regulation of interstate commerce. .Justice Scalia adopted a deferential approach, where we thought we were entitled to a hearing in which a neutral judge would assess the reasonableness of Congress's claim. So looking back at the cases that we've talked about, Darby and Wickard both rest on the necessary part of the Necessary and Proper Clause. Because it is necessary for Congress to reach wholly intrastate activity that has a substantial effect on interstate commerce, Congress may do so. Lopez and Morrison adopt a judicially administrable limit on Congress's power under the necessary part of the Necessary and Proper Clause by holding that if a local activity is non-economic in nature, then it's generally not necessary for Congress to reach it in order to effectuate its enumerated powers. Raich goes beyond the limitation that was established by Lopez and Morrison, and allows Congress to reach local activity that's non-economic, if doing so is essential to a broader regulation of commerce, and then it adopts a highly deferential approach to whether it's essential or not. But all of this has to do with the scope of Congress's power under the Necessary and Proper Clause, and in particular, under the necessary part of the Necessary and Proper Clause. None of this has anything to do with whether a particular law is proper, to execute one of Congress's foregoing powers under the Necessary and Proper Clause. To see what limits are provided by the word proper in the Necessary and Proper Clause, we must look at the cases of New York v. United States and Printz v. United States. These two cases stand for the proposition that Congress may not commandeer state governments to effectuate national policy. The New York case concerned Congress's power to commandeer or compel state legislatures to make laws that would carry into effect federal policy. The Printz case was about whether Congress had the power to compel local executive branch officials, in this case it was local sheriffs, to effectuate federal policy. In both of these cases, the Court held that Congress may not use its Commerce Clause powers, or any other of its powers, to commandeer or command the exercise of state sovereign powers. In the Printz case, when the United States asserted that Congress may do so under the Necessary and Proper Clause, Justice Scalia emphatically rejected this proposition by arguing that even if the law could be deemed to be necessary, it was not a proper exercise of federal power to commandeer state legislatures. In this way, the New York and Printz case introduce a distinction between Necessary and Proper in the Necessary and Proper Clause. .So we have Lopez, Morrison, and Raich discussing the proper scope of the necessary part of the Necessary and Proper Clause, and then we have New York and Printz discussing the proper scope of the word proper in the Necessary and Proper Clause. These two cases don't tell us all the ways that a law may be improper, but simply one of the ways that a law may be improper because it violates fundamental principles of federalism. In this case, the fact that states are their own sovereign bodies within their own jurisdictions within their own subject matters and cannot be commanded to perform those sovereign activities. In this case, it involved the exercise of state sovereign powers, in particular the power of state legislatures to make laws and the power of state local executive branch officials to enforce those laws. It was improper for a federal government to interfere with the exercise of state powers in this way, but that doesn't mean it's the only way a federal law could be improper. Though, the importance of Printz and New York is not that they lay out the only way that a federal law may be improper, but that they identify that the requirement of a law being proper is separate than the requirement that a law be necessary. PUBLIUS: There’s an even more recent case that seems to be relevant to this discussion - NFIB v. Sebelius. Can you give a synopsis about the issues in that case and the impact of the decision? RANDY BARNETT: With all of this background, we can understand the case of NFIB v. Sebelius much better. In NFIB v. Sebelius, Congress had enacted the Affordable Care Act, in which individual persons were required to buy health insurance from a private company. The statute referred to a requirement that people buy health insurance that was enforced by a penalty if they should fail to do so. The question was whether this was within Congress's commerce power, which as we already know is really about whether it's within its Necessary and Proper Clause power. In NFIB, there was no question that the mandate was considered to be essential to the broader regulation of interstate commerce. In fact, it was because the mandate was essential to the broader regulatory scheme that the challengers contended it could not be severed from the rest of the act and invalidated with the rest of the act being upheld. The two went hand in hand. The real issue in NFIB v. Sebelius was whether making individuals do business with a private company through use of so-called purchase mandates was a proper exercise of federal power. Five justices agreed with the challengers that this was not a proper exercise of federal power. In this way, NFIB can be seen most properly in the New York-Printz line of cases, not the Lopez-Morrison line of cases. Five justices held that a purchase mandate is beyond the power of Congress to enact under its Commerce Clause and Necessary and Proper Clause powers. So five justices in the majority held that a requirement that you buy insurance from a private company was an improper exercise of Congress's power under the Necessary and Proper Clause and its Commerce Clause power, but one of those five adopted what he called a saving construction to change the requirement to buy health insurance enforced by a penalty into, in effect, an option to either buy insurance or pay a modest and non- coercive tax. This way it was not a purchase mandate that was upheld. It was an option to buy insurance or pay a non-coercive tax. Chief Justice Roberts said that if the tax were high enough to become coercive, then that would be a problem. But since it was low enough to not be coercive, then it was simply a tax and could be upheld. He said this was not the natural reading of the statute, but the courts had an obligation to defer to the statute, in his words, if there was a reasonably possible reading of the statute that would be constitutional. And because he found that an option to buy insurance or pay a tax was a reasonably possible reading of the statute. .He concluded that the Affordable Care Act, construed this way, could be upheld. So NFIB v. Sebelius is not really a Commerce Clause case. In the 1940s, the Supreme Court had held that the regulation of the insurance business was part of Congress's commerce power, and that was not an issue in the case. The real issue in NFIB v. Sebelius was whether it was necessary and proper for Congress to command individual Americans to do business with a private company. Five justices concluded it was not. One of those five concluded that the statute could be construed not as a command to do business with a private company, but as an option to buy insurance or to pay a modest and non-coercive tax. Another misconception about NFIB is that it upheld the individual purchase mandate as a tax. It did not. The court actually concluded that it would be unconstitutional, even under the tax power. Instead, Chief Justice Roberts changed the requirement to buy insurance enforced by a penalty into an option to buy insurance or pay a modest tax. In other words, he did not argue that a purchase mandate was constitutional under the tax power. He changed the statute into something that would be constitutional under the tax power. So one of the lessons here is just as it is improper for the Federal Government to commandeer or command local legislatures to enact laws, it is also improper for Congress to commandeer or command individual citizens to engage in commerce with private businesses. Both of these are improper exercises of federal authority. PUBLIUS: Any final thoughts on the modern interpretation of the Commerce Clause? RANDY BARNETT: After the Raich case, I thought there was nothing that Congress couldn't do under its Commerce and Necessary and Proper Clause authority, until it decided it was going to mandate people do business with a private company. This would be like if, in the Raich case, Congress hadn't simply prohibited Diane Monson and Angel Raich from growing marijuana, but had required that they grow marijuana in their backyard, something that was inconceivable at the time of the Raich case. That is the line that has now been drawn. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! Transcript [for YouTube - no speaker names/verbatim] Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about how Federalism works. Today’s episode features Professor Randy E. Barnett, who is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center. He teaches constitutional law and contracts, and is Director of the Georgetown Center for the Constitution. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. - The Necessary and Proper Clause gives power to Congress to make laws. The Commerce Clause gives Congress the power to regulate commerce. How have these two powers have been interpreted by the Supreme Court to allow Congress to regulate almost anything? Today we’re talking with Professor Randy Barnett who will explain what “commerce” meant in the founding era and what it encompasses now. When you see an enumerated powers case, you need to realize that most of the enumerated powers cases that you read are actually also Necessary and Proper Clause cases. The Necessary and Proper Clause is an enumerated power of Congress. It enumerates the power to make all laws which shall be necessary and proper for carrying into execution all the other powers that the Constitution gives to Congress. Today Dred Scott is considered to be one of the worst cases, if not the worst case, ever decided by the Supreme Court, but Prigg versus Pennsylvania ought to be included on the list of worst Supreme Court cases. What makes Prigg legally objectionable, however, is the fact that it did not hew to the enumerated powers scheme of the original Constitution and instead used what you might call a modern reading of the Necessary and Proper Clause to greatly expand the power of Congress, in this case, to pass a Fugitive Slave Act. Prigg versus Pennsylvania is a case that involved the constitutionality of the Fugitive Slave Act, which Congress had enacted pursuant to the Fugitive Slave Clause in Article 4 of the Constitution. The question arose, was the Fugitive Slave Act within the power of Congress under the Fugitive Slave Clause. The Fugitive Slave Clause is in Section 2 of Article 4 of the original Constitution. Salmon Chase maintained that Section 2 gave Congress no additional powers to enforce the Fugitive Slave Clause, it simply said that slaves shall be surrendered up upon demand of the party to whom their service is owed. He contrasted that with Section 1, which did give Congress an enumerated power to implement the Full Faith and Credit Clause. As well as Section 3, which gave Congress an enumerated power to enact all needful regulations to govern the territories. Because Section 2 included no enumerated power, Chase argued that Congress did not have power to enact the Fugitive Slave Clause. In Prigg versus Pennsylvania, Justice Story disagreed. Justice Story adopted an extremely broad reading of Necessary and Proper Clause in which he said that Congress had a power to make laws that would protect any rights that was acknowledged or recognized by the Constitution. It was in fact, a reading of the clause broader than even the post-New Deal reading of the Necessary and Proper Clause that we live with today. The expansion of the interpretation of the Commerce Clause is the most obvious example of a broad reading of enumerated powers. Can you discuss some of the most relevant Supreme Court cases on this issue? Gibbons versus Ogden involved the question of whether a navigation law was within the power of Congress to enact under it's commerce power. Chief Justice Marshall and the court held that it was and it clearly was within the original meaning of the word commerce. Navigation clearly was within the original meaning of the word commerce, which referred to the buying and selling, movement, and transportation of goods and people from one place to another. The ruling in Gibbons, that navigation laws are within the commerce power of Congress to enact is clearly consistent with the original meaning of the word commerce, which did include navigation laws. Where the opinion in Gibbons can be used to justify a broader reading of the commerce power is both because of its equation of the word commerce with the word intercourse. To modern ears, the word intercourse appears to be broader, although the original meaning of intercourse is really no more broad than the word commerce. Secondly, when John Marshall refers to among the several states as meaning concerns more states than one. That also invites a broader reading of the commerce power than its original meaning and even than the holding of Gibbons itself. What about cases involving the Civil Rights Act? Why did they involve the power of Congress to regulate commerce? There were two cases involving civil rights acted in 1964 that implicated the commerce power. The first was Heart of Atlanta, vs United States. Heart of Atlanta involved access to public accommodations like a hotel. In this case it was The Heart of Atlanta Hotel. And in this case, the court held that Congress had the power to remove burdens and obstructions to interstate commerce. In this case, restrictions on access to public accommodations, like a hotel, that inhibited the ability of African Americans to travel freely throughout the United States. This was a relatively unremarkable application of the commerce power, to a localized problem. Katzenbach versus McClung, involved Ollie's Barbecue, a restaurant that did not serve interstate travelers, but which used goods that had traveled in interstate commerce. Heart of Atlanta did expand the power of Congress under the commerce power. It did so by giving Congress jurisdiction over any activity that utilized items that had traveled in interstate commerce. This is today sometimes referred to as the jurisdictional hook. The jurisdictional hook claims that Congress has the power to regulate any activity, no matter how local it may be. If that activity is using goods or services that had once traveled in interstate commerce, that represents a substantial expansion of Congress's power under the Commerce Clause. Both Katzenbach and Heart of Atlanta might also have been decided under Section Five of the 14th amendment, which gave Congress the power to enforce the previous sections of the 14th amendment, including Section One, which contained the Equal Protection Clause. In passing the Civil Rights Act, Congress had asserted both its Commerce Clause power and its Section Five power. The Court however felt more comfortable applying its expanded post New Deal reading of the Commerce, and Necessary and Proper Clause to uphold the Civil Rights Act. These cases might better have been decided as Section Five cases, because doing so would have emphasized the civil rights nature of the statute that was being enforced here. By contrast, an expanding reading of the Commerce and Necessary and Proper Clauses would extend well beyond civil rights laws like this one. At the beginning, you mentioned that enumerated powers cases involve the Necessary and Proper Clause. What do you mean by that? I got my take on the Necessary and Proper Clause when I was litigating the Raich case, the medical marijuana case. Where we challenged the constitutionality of the controlled substances act as applied to local activity of using marijuana for medical purposes as authorized by state law. This required me to take a close look at the post new deal cases, to see what they really said, as opposed to how they're commonly taught. What I discovered is that the cases that are most commonly associated with having expanded the commerce power of Congress, were actually cases using the Necessary and Proper Clause, to expand Congress's power without expanding the original meaning of commerce in the Congress power. And the first case that is most responsible for that, is United States versus Darby. United States versus Darby is responsible for what's called The Substantial Effects Test, that gives Congress the power to reach not only commerce that takes place between one state or another, which is its commerce power, but also to reach inside of state. And to regulate any intra state activity that has a substantial effect on commerce that's taking place between one state or another. If you read that case carefully, and even if you read it not so carefully, you will see that the authority the court relies on for the substantial effects test, is McCulloch versus Maryland. And McCulloch versus Maryland, as you should know, is a Necessary and Proper Clause case. So the logic of Darby is that in order to regulate interstate commerce, it is necessary and proper that Congress reach activities that are not interstate commerce, but have a substantial effect upon interstate commerce. And now we have expanded Congress’ power beyond power to regulate commerce among several states. Wickard versus Filburn, simply takes the principle of Darby one step farther. In order to evaluate whether a particular activity by a particular person is within Congress's power. It's not enough to say, "Well that person's activity does not substantially affect commerce because it's too trivial to substantially affect commerce." So what Wickard does, is it adds the aggregation principle, and it says that you're not supposed to determine whether each person's activity substantially affects commerce, but whether that category or class of activities taken in the aggregate or as a whole, has a substantial effect on interstate commerce. And that's Wickard, that's moving one step beyond Darby by applying the aggregation principle. Where Wickard is mistaught, is by saying that the principle of Wickard was to reach homegrown activities, meaning bread that was raised and consumed by the family, the Roscoe Filburn family. That's not what the case was really about. The case was really about Roscoe Filburn, a local farmer, taking his wheat, feeding it to his livestock. Then marketing his livestock either in the form of meat or in the form of dairy products like eggs and milk. In other words, he was getting around a restriction on the amount of wheat that somebody could produce, that a farmer could produce, by marketing that wheat as meat through his produce. It had nothing what so ever to do with whatever bread that the Roscoe Filburn family may have consumed there. It was mentioned in the case, but that was only mentioned by the court in saying how little effect that had on interstate commerce, because it was very fixed. What had the big effect on interstate commerce, was the ability of farmers to shift their production of wheat from the interstate market, to the intrastate market, and then market their livestock in interstate market as a way to circumvent the price controls and the supply restrictions that were being put on the supply of wheat. Darby and Wickard set a high watermark for the power of Congress under the commerce power, slash Necessary and Proper Clause. That high watermark was not formally limited by the supreme court until the cases of the United States versus Lopez, and United States versus Morrison. Lopez and Morrison stand for the very simple proposition that Congress can only regulate wholly intrastate activity, if that intrastate activity is economic in nature. Economic in nature is a category beyond that of commerce. Commerce is buying and selling and movement of goods and services. And economic activity includes for example manufacturing, agriculture, productive activities. Economic is a broader category. And the doctorate of Lopez and Morrison is Congress can only reach intrastate activity that has a substantial effect on interstate commerce, if that activity is economic in nature. Now once you realize that Darby and Wickard are about extended Congress's power under the Necessary and Proper Clause, then it immediately becomes obvious that Lopez and Morrison are about limiting Congress's power under the Necessary and Proper Clause. Lopez and Morrison, which are considered Commerce Clause cases, in part because Chief Justice Rehnquist only refers to the Commerce Clause, and doesn't refer to the Necessary and Proper Clause, are really Necessary Proper Clause cases themselves. Because they're providing a limit on the Substantial Effects doctrine and the Substantial Effects doctrine is a Necessary and Proper Clause doctrine. The logic of Lopez and Morrison is that Congress can reach intrastate activity if it has a substantial effect on interstate commerce, and should not be able to reach intrastate activity that is remote from interstate commerce. Now, the courts are not going to be able to decide what's remote and what's not remote, so instead they have a judicially administrable line between economic activity and non economic activity. The assumption being, if the local activity is economic in nature, it involves the production or consumption of goods, then it's likely to be closely related to interstate commerce. Related enough to justify Congress reaching it. If the local activity is not economic, like for example possessing a gun within 1000 feet of a school or committing gender motivated violence, which was an issue in the Morrison case, then the idea here is that that activity is quite remote from Congress's power to regulate interstate commerce, and Congress may not reach it. So Lopez is decided in 1995, five years later, in 2000 Morrison is decided. Five years after that, the court considers Gonzales versus Raich in 2005. Raich involved the question of whether Congress, under its power to regulate interstate commerce can reach locally home grown marijuana that's being grown and used for medical purposes, as authorized by California law. I was one of the lawyers that represented Angel Raich and Dianne Manson in their constitutional challenge. And the argument that we made, is that the marijuana that Dianne grew for herself, or that Angel's caregivers grew for her, this marijuana was not a result of an economic activity. They did not buy it, they did not sell it and it was not made from anything that had ever traveled in interstate commerce. It was strictly a non economic local activity. So under Lopez and Morrison, Congress should not be able to reach local activity, that even in the aggregate had a substantial effect on interstate commerce. If that local activity was non economic in nature. We claimed that was what was going on in the Raich case. We lost the Raich case, six to three. The logic of the majority opinion written by Justice Stevens is, to follow the economic, non economic distinction of Lopez and Morrison, but then to use a 1966 Webster's dictionary definition of economic, that included the production of fungible goods. Since Dianne and Angel were producing a good, this the court said, was an economic activity, and therefore Congress could reach that activity under the Lopez and Morrison doctrines. Because it was economic. In this sense, the majority in Raich remained faithful to the opinions in Lopez and Morrison, except, it adopted a very broad definition of what economic activity is. Not completely unlimited I should say, but at least broad enough to go well beyond what we formally thought was an economic activity. Which was activity that was being produced for profit or for gain. Raich illustrates that when we're talking about the term necessary, the courts have adopted a very deferential approach to Congress's assessment about whether something is or is not necessary, and this dates back to McCulloch v. Maryland. .Justice Scalia did not join Justice Stevens majority opinion, which with its broad reading of what economic meant. Instead he offered an opinion that was structurally quite sound. He said that this was really a Necessary and Proper Clause case, and he was right about that. He focused on one line in the Lopez opinion, which said that Congress could reach even non economic activity, if doing so was essential to a broader regulation of interstate commerce. Because Congress had decided that reaching locally produced marijuana was essential to its broader regulation of interstate marijuana, he concluded that this was within Congress's power. To reach that conclusion, he gave broad deference to Congress to decide what was essential to a broader regulatory scheme. Essentially that's what divided our position from Justice Scalia's position. We argued that we were entitled to a hearing, so that a judge would determine whether it really was essential for Congress to reach locally grown marijuana, that was authorized and regulated by the state of California, in order to regulate the interstate trade in marijuana. Justice Scalia adopted a position of judicial restraint, in which he deferred to Congress's assessment, even though Congress had made no specific findings about medical marijuana, which was something that was relatively unknown at the time the controlled substances act was passed in 1970. So what differentiated our approach from Justice Scalia's approach, was the level of deference that would be afforded to Congress. In deciding whether it can reach local activities because it was necessary or essential to a broader regulation of interstate commerce. .Justice Scalia adopted a deferential approach, where we thought we were entitled to a hearing in which a neutral judge would assess the reasonableness of Congress's claim. So looking back at the cases that we've talked about, Darby and Wickard both rest on the necessary part of the Necessary and Proper Clause. Because it is necessary for Congress to reach wholly intrastate activity that has a substantial effect on interstate commerce, Congress may do so. Lopez and Morrison adopt a judicially administrable limit on Congress's power under the necessary part of the Necessary and Proper Clause by holding that if a local activity is non-economic in nature, then it's generally not necessary for Congress to reach it in order to effectuate its enumerated powers. Raich goes beyond the limitation that was established by Lopez and Morrison, and allows Congress to reach local activity that's non-economic, if doing so is essential to a broader regulation of commerce, and then it adopts a highly deferential approach to whether it's essential or not. But all of this has to do with the scope of Congress's power under the Necessary and Proper Clause, and in particular, under the necessary part of the Necessary and Proper Clause. None of this has anything to do with whether a particular law is proper, to execute one of Congress's foregoing powers under the Necessary and Proper Clause. To see what limits are provided by the word proper in the Necessary and Proper Clause, we must look at the cases of New York v. United States and Printz v. United States. These two cases stand for the proposition that Congress may not commandeer state governments to effectuate national policy. The New York case concerned Congress's power to commandeer or compel state legislatures to make laws that would carry into effect federal policy. The Printz case was about whether Congress had the power to compel local executive branch officials, in this case it was local sheriffs, to effectuate federal policy. In both of these cases, the Court held that Congress may not use its Commerce Clause powers, or any other of its powers, to commandeer or command the exercise of state sovereign powers. In the Printz case, when the United States asserted that Congress may do so under the Necessary and Proper Clause, Justice Scalia emphatically rejected this proposition by arguing that even if the law could be deemed to be necessary, it was not a proper exercise of federal power to commandeer state legislatures. In this way, the New York and Printz case introduce a distinction between Necessary and Proper in the Necessary and Proper Clause. .So we have Lopez, Morrison, and Raich discussing the proper scope of the necessary part of the Necessary and Proper Clause, and then we have New York and Printz discussing the proper scope of the word proper in the Necessary and Proper Clause. These two cases don't tell us all the ways that a law may be improper, but simply one of the ways that a law may be improper because it violates fundamental principles of federalism. In this case, the fact that states are their own sovereign bodies within their own jurisdictions within their own subject matters and cannot be commanded to perform those sovereign activities. In this case, it involved the exercise of state sovereign powers, in particular the power of state legislatures to make laws and the power of state local executive branch officials to enforce those laws. It was improper for a federal government to interfere with the exercise of state powers in this way, but that doesn't mean it's the only way a federal law could be improper. Though, the importance of Printz and New York is not that they lay out the only way that a federal law may be improper, but that they identify that the requirement of a law being proper is separate than the requirement that a law be necessary. There’s an even more recent case that seems to be relevant to this discussion - NFIB v. Sebelius. Can you give a synopsis about the issues that in that case and the impact of the decision? With all of this background, we can understand the case of NFIB v. Sebelius much better. In NFIB v. Sebelius, Congress had enacted the Affordable Care Act, in which individual persons were required to buy health insurance from a private company. The statute referred to a requirement that people buy health insurance that was enforced by a penalty if they should fail to do so. The question was whether this was within Congress's commerce power, which as we already know is really about whether it's within its Necessary and Proper Clause power. In NFIB, there was no question that the mandate was considered to be essential to the broader regulation of interstate commerce. In fact, it was because the mandate was essential to the broader regulatory scheme that the challengers contended it could not be severed from the rest of the act and invalidated with the rest of the act being upheld. The two went hand in hand. The real issue in NFIB v. Sebelius was whether making individuals do business with a private company through use of so-called purchase mandates was a proper exercise of federal power. Five justices agreed with the challengers that this was not a proper exercise of federal power. In this way, NFIB can be seen most properly in the New York-Printz line of cases, not the Lopez-Morrison line of cases. Five justices held that a purchase mandate is beyond the power of Congress to enact under its Commerce Clause and Necessary and Proper Clause powers. So five justices in the majority held that a requirement that you buy insurance from a private company was an improper exercise of Congress's power under the Necessary and Proper Clause and its Commerce Clause power, but one of those five adopted what he called a saving construction to change the requirement to buy health insurance enforced by a penalty into, in effect, an option to either buy insurance or pay a modest and non- coercive tax. This way it was not a purchase mandate that was upheld. It was an option to buy insurance or pay a non-coercive tax. Chief Justice Roberts said that if the tax were high enough to become coercive, then that would be a problem. But since it was low enough to not be coercive, then it was simply a tax and could be upheld. He said this was not the natural reading of the statute, but the courts had an obligation to defer to the statute, in his words, if there was a reasonably possible reading of the statute that would be constitutional. And because he found that an option to buy insurance or pay a tax was a reasonably possible reading of the statute. .He concluded that the Affordable Care Act, construed this way, could be upheld. So NFIB v. Sebelius is not really a Commerce Clause case. In the 1940s, the Supreme Court had held that the regulation of the insurance business was part of Congress's commerce power, and that was not an issue in the case. The real issue in NFIB v. Sebelius was whether it was necessary and proper for Congress to command individual Americans to do business with a private company. Five justices concluded it was not. One of those five concluded that the statute could be construed not as a command to do business with a private company, but as an option to buy insurance or to pay a modest and non-coercive tax. Another misconception about NFIB is that it upheld the individual purchase mandate as a tax. It did not. The court actually concluded that it would be unconstitutional, even under the tax power. Instead, Chief Justice Roberts changed the requirement to buy insurance enforced by a penalty into an option to buy insurance or pay a modest tax. In other words, he did not argue that a purchase mandate was constitutional under the tax power. He changed the statute into something that would be constitutional under the tax power. So one of the lessons here is just as it is improper for the Federal Government to commandeer or command local legislatures to enact laws, it is also improper for Congress to commandeer or command individual citizens to engage in commerce with private businesses. Both of these are improper exercises of federal authority. Any final thoughts on the modern interpretation of the Commerce Clause? After the Raich case, I thought there was nothing that Congress couldn't do under its Commerce and Necessary and Proper Clause authority, until it decided it was going to mandate people do business with a private company. This would be like if, in the Raich case, Congress hadn't simply prohibited Diane Monson and Angel Raich from growing marijuana, but had required that they grow marijuana in their backyard, something that was inconceivable at the time of the Raich case. That is the line that has now been drawn. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!