Balkinization  

Friday, April 05, 2013

Necessary and Proper and Scalia

Andrew Koppelman



I concur with Sandy’s criticism of the broad jurisprudential assumptions behind Justice Scalia’s opinion in the health care case.  But – and this is relevant for any law students who are reading the case right now, as many are – Scalia’s, and the Court’s, approaches are also defective at the level of doctrine.  I’m still waiting to hear anyone make sense of the new limitation that the Court has imposed on the Necessary and Proper Clause, which is, of course, the central issue in McCulloch.  Neither Scalia nor Chief Justice Roberts were able to offer a coherent response to this core doctrinal question.

An analysis and critique of the Court’s approach to the Necessary and Proper Clause can be found in a short article, here.  A more general review of the philosophical basis of the constitutional challenge can be found in my new book, The Tough Luck Constitution and the Assault on Health Care Reform.  The first piece is a doctrinal analysis written primarily for lawyers.  The second is aimed at the general reader.

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