Feds argue the Constitution is necessarily and properly moot

The Health and Human Services Department has now filed its motion to dismiss in reply to the 20 state attorneys general — or should that be 19 since Nevada’s AG refused the governor’s order to file and he had to find another attorney to do? — who are challenging the constitutionality of ObamaCare.

Not only does the motion dismiss the 10th Amendment arguments, but it invokes the Commerce Clause of the Constitution and then makes several references to an old favorite, the Necessary and Proper Clause:

“To 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.”

For further enlightenment we turn to our old friend Seth Lipsky and his “The Citizen’s Constitution: An Annotated Guide.”

Lipsky notes that from the beginning the Anti-Federalists singled out this phrase as a loophole big enough to sail a warship through.

An Old Whig wrote, “Under such a clause as this can any thing be said to be reserved and kept back from Congress?”

Lipsky points out that Thomas Jefferson lampooned the clause in an 1800 letter in which he called it the sweeping clause, "Congress are authorized to defend the nation. Ships are necessary for defence; copper is necessary for ships; mines necessary for copper; a company necessary to work mines; and who can doubt this reasoning who has ever played at 'This is the House that Jack built?' Under such a process of filiation of necessities the sweeping clause makes clean work."

The New Deal court cases especially abused the Commerce and Necessary and Proper clauses.

Who can forget the plight of Roscoe Filburn of Ohio who planted more wheat than the Agricultural Adjustment Act of 1938 allowed. The Supreme Court upheld a fine against Filburn using those two aforementioned clauses even though Filburn’s wheat was consumed on his own property and never was in interstate commerce.

As Lipsky tells us, the court ominously ruled “it is sustainable as a ‘necessary and proper’ implementation of the power of Congress over interstate commerce.” Apparently the rationale was that interstate commerce was affected by Filburn not being engaged in it. Perhaps, if he’d not grown his own wheat, he might’ve had to buy it.

Makes perfect sense. If you don’t buy insurance, you’ve affected interstate commerce.

If you become a hermit, you affect interstate commerce. If you become a vegan, you affect interstate commerce.

Congress can do whatever it thinks necessary and proper to regulate interstate commerce. That pretty much makes the rest of the Constitution extraneous and moot.