Terrain Shifts in Challenges to the Health Care Law

By KEVIN SACK
NYT

The legal challenge to the Obama health care act has invigorated a dispute as old as the Constitution about the framers’ most nettlesome grant of power, which gives Congress treacherously broad authority to pass laws “necessary and proper” to carrying out its assigned responsibilities.

The cases, which are presumed to be headed to the Supreme Court, center on whether Congress’s power to regulate interstate commerce is so expansive that it can require citizens to buy health insurance. But as the litigation advances, the “necessary and proper” clause is taking on greater prominence in briefs and oral arguments, with the Obama administration asserting that it shelters the insurance mandate and state officials arguing that it buries it.

Because the facts are novel — the courts have never addressed whether Americans can be penalized for not buying something — each side has managed to glean what it wants from the Supreme Court’s most recent guidance.

A spirited debate broke out in legal blogs this month after Judge Henry E. Hudson of Federal District Court in Richmond, Va., invalidated the insurance requirement in part by rejecting the administration’s necessary-and-proper defense. As that case and others move into the appellate courts, scholars are submitting friend-of-the-court briefs that focus on the meaning of necessary and proper.

(More here.)

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