It sounds like opening arguments went pretty well for the Obama administration — and for the Affordable Care Act — in the 4th Circuit. And so they should’ve. As Northwestern University’s Andrew Koppelman writes, “The correct legal analysis is simple. Congress has the authority to solve problems that the states cannot separately solve. It can choose any reasonable means to do that.” Both rising health-care costs and the 50 million uninsured are clearly national problems, and the Affordable Care Act’s individual mandate, which has been supported by various members of both parties and is simply a tax penalty, is clearly reasonable.
But these kinds of arguments over the scope of the “Necessary and Proper” clause have been going on for a long time. In Gordon Wood’s “Empire of Liberty,” he recounts the argument over Alexander Hamilton’s proposal to found a national bank. Thomas Jefferson and James Madison both argued that a national bank was unconstitutional. Nowhere in the Constitution did it say Congress could create a national bank. And if Congress could do this, what couldn’t it do? The implications, they said, were scary. Sound familiar?
President George Washington was now faced with the decision to either sign or veto the legislation, and he found Jefferson and Madison’s claims unsettlingly plausible. So he turned to Hamilton for a rebuttal:
Hamilton, with Randolph’s and Jefferson’s opinions before him, spent a week working out what became one of his most masterful state papers. He carefully refuted the arguments of Randolph and Jefferson and made a powerful case for a broad construction of the Constitution that resounded through subsequent decades of American history. He argued that Congress’s authority to charter a bank was implied by the clause in Article I, Section 8 of the Constitution that gave Congress the right to make all laws “necessary and proper” to carry out its delegated powers. Without such implied powers, Hamilton wrote, “the United States would furnish the singular spectacle of a political society without sovereignty, or of a people governed without government .” That may have been Jefferson’s ideal, but it was not Washington’s. On February 25, 1791, the president signed the bank bill into law.
The establishment of a national bank, to be fair, seems like a much tougher call than the passage of an individual mandate. But the story is a useful reality check. Hamilton, Madison, Jefferson and Washington were all involved in the creation of the Constitution. Madison and Hamilton collaborated on the Federalist Papers that underpin our understanding of framer intent. And yet, a few decades after the document was ratified, they were faced with a fundamental and obvious question: Would the new country found a bank and control its currency? Two of them thought that was unconstitutional and two of them thought it was constitutional. Unsurprisingly, the division was between those who thought a central bank a good idea and those who didn’t. But because one of the two who thought it was unconstitutional happened to be president, it passed. Legal analysis matters, but so too does power.