Gary Lawson and I explain why, in an article published last week by Yale Law Journal Online.

In short, the Necessary and Proper Clause expressed the well-known agency law doctrine of principals and incidents. That is, the grant of power to an agent (and the federal government was an agent of the people, to exercise certain delegated powers) was considered to include incidental powers. (Unless the parties specified to the contrary.) To be an incidental power, a power had to be subsidiary to, inferior to, and “less worthy” (in the language of the time) than the principal power. So if A delegates to B the power to manage A’s farm for five years, B could lease part of the farm to C for a few years, but B could not sell the farm. The power to sell the farm is not an “incident” of the power to manage a farm. It is a power that is as great as the power to manage the farm.

Thus, the first half of Chief Justice Marshall’s opinion in McCulloch wrestles with the question of whether the power to establish a corporation (here, the 2d Bank of the United States) can be considered an “incident” of the enumerated congressional powers. This portion of the opinion is often expurgated from constitutional law textbooks. But not from Randy Barnett’s Constitutional Law: Cases in Context.

So is the power to order people to engage in commerce with certain corporations “incidental” to the enumerated power “to regulate Commerce . . .  among the several States”? Lawson and I argue that the power to compel intrastate commerce is of at least equal “dignity” as the power to regulate voluntary interstate commerce. Thus, the individual mandate cannot be justified a “necessary and proper” to the exercise of the power to regulate interstate commerce.

Further, the word “proper” affirms the agency/fiduciary law rule that an agent  must act reasonably, and when he is acting on behalf of several principals must treat the principals equally. So in Rooke’s Case, it was unreasonable that the entire costs of a water control project were imposed on a single landowner, when other landowners also benefited from the project. In Leader v. Moxon (1773) paving commissioners were unreasonable when they ordered a road repair that effectively buried the doors and windows of the plaintiff’s house, making plaintiff bear the entire burden of a project that was supposedly for the benefit of him and others. In the Founding era, government creation of a monopoly was the paradigm example of a government act that was not “proper,” because the monopolist was benefited to the detriment of everyone else.

In 1787, a consumer could at least choose not to buy the monopolist’s product.  ”The conclusion is clear: if a commercial monopoly—which citizens may avoid by not purchasing the product monopolized—is constitutionally void as ‘improper,’ then far more ‘improper’ is a mandate for the benefit of political favorites, which none but other political favorites may avoid. . . . [C]oerced commerce with congressionally favored oligopolists is constitutionally improper and void.”

Thus, if the Supreme Court follows the original meaning of the Necessary and Proper clause, and McCulloch v. Maryland‘s accurate exposition of that meaning, the Court will not rule in favor of the individual mandate as a necessary and proper exercise of the power to regulate interstate commerce.

By a vote of 272 to 154. (The vote on the motion to recommit was 161 to 263). On the final vote, 44 Democrats voted in favor, and 7 Republicans voted against. H.R. 822 now goes to the Senate. In the previous Congress, a broader bill on interstate carry was narrowly defeated by a filibuster led by Sen. Charles Schumer. Of course whether the bill ever comes up for a vote in the Senate is up to Majority Leader Harry Reid.

In September, I testified before the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security, in support of the bill. My testimony focused mainly on the Congress’s constitutional authority to pass the bill under the powers granted by section 5 of the 14th Amendment. Among the explicit purposes of the 14th Amendment was to give Congress the power to enact legislation protecting the right to interstate travel, which is one of the Privileges or Immunities of citizens of the United States. My written testimony is here. A video of the subcommittee hearing is here. And here’s short podcast on the subject, with Cato.

HT to Shall Not Be Questioned for coverage of the day’s voting, in which all hostile amendments were defeated.

By now we’ve had some time to reflect on the beating the Prop 103 tax increase received from Colorado voters a couple weeks ago. It’s pretty amazing isn’t it? We were outspent around 6 to 1 but we managed to destroy the tax hike nearly 2 to 1. Granted, Prop 103 probably would have gone down even if we did nothing, but our side working well together ensured that the beating would resonate for a long time. Like I told Colorado Peak Politics, this tax hike unified us and instead of embarrassing ourselves like we normally do, we worked together to embarrass the enemies of limited government. It proved that we can work together for a common cause. Let Prop 103’s gross failure be our guiding light for the future.

Let’s talk about that future.

Senior Fellow Penn Pfiffner was a guest on the Tax Foundation’s podcast show the other day to talk about Prop 103’s failure and what we need to do to fortify our state against the barrage of calls for bigger and bigger government. Yes, it’s heartening to score such a resounding victory against big government, but it wasn’t the first proposed tax increase and it certainly won’t be the last. It’s a matter of time until we hear about the next government expansion “for the kids.” Likewise, it won’t be long until we hear the next round of sob stories that are designed to pry open our wallets. One victory will not shut down the Left’s super highway into our bank accounts. Penn knows this and does a good job of explaining that we must change our tactics if we are to ensure long-term success. As long as we continue to play only defense, it’s just a matter of time until they break off a big play and dance in our end zone. Even a good defense has holes and weaknesses. Stopping 99% of scoring drives means that 1% are getting through. Therefore, it doesn’t hurt to be on offense every now and again. As the old saying goes, sometimes the best defense is a good offense. Just ask Tom Brady and Bill Belichick.

If you only read one article today, please read Amy Oliver and Michael Sandoval’s new Townhall.com article on the great “green” energy scam: A Stupid Energy Policy. They combine forces once again to thoroughly destroy the idea that government can efficiently create an entire industry based on their own fantasies of what’s good for the environment. Colorado is just one of many states that requires a certain amount of “green” energy production. In our case, it’s pretty high – 30%. This mandate, along with massive subsidies and protections, has enabled an entire industry to be built on a faulty foundation. As we’ve seen, the foundation is coming down… rapidly. Everyone knows the story of Solyndra, but do you know the story of Colorado’s Ascent Solar? What about the fact that Colorado ratepayers will be forced to pay an additional $100 million in 2011 to fund the renewable fantasies mandated by our government?

This new Townhall article is a MUST READ. It will blow your mind and leave you outraged. Additionally, Michael Sandoval appeared on Amy Oliver’s radio show on 1310 KFKA. They spent around 30 minutes talking about the article. Here is the 1310 KFKA audio.

AG Suthers on the Obamacare lawsuit:

Colorado state treasurer Walker Stapleton on PERA:

Back in the olden days, readers interested in the history of a presidential race would have to wait until the year after the election to read a book about it. Theodore White created the genre of presidential campaign books with The Making of the President 1960. It was published in 1961. White wrote three more books in the series, and they are still great reading for people interested in the history of American politics. Although be forewarned, the 1964 and 1968 books are enormous.

There was once a time when it was considered unseemly for even the most ambitious candidates to announce before the calendar year of the election. That’s one reason that John F. Kennedy waited until Jan. 2, 1960, to formally announce. George McGovern broke the mold by formally announcing on Jan. 18, 1971, which turned out to be the right strategy for a long-shot who needed plenty of time to organize. Jimmy Carter studied the McGovern campaign assiduously, and used its tactics, including the very early announcement, to win his own long-shot race in 1976.

So now, with almost everyone practicing McGovernism, the presidential campaign has been going hard for much of the pre-election year. If you want to know the history thus far, the just-published Election 2012: The Battle Begins is a strong choice. It’s written by Tom Bevan and Carl Cannon, and published by RealClearPolitics.com, the world’s best political website. Election 2012 is e-book only, and costs just $2.99. The ideal reader might be someone who lives abroad, is very interested in American politics, and only gets the limited coverage available from the International Herald Tribune, or foreign papers. In the United States, readers who are so fascinated with politics as to want to read a history of the election the year before the election will probably already know most of what’s in the narrative. Yet even those readers will find interesting details about the behind-the-scenes strategizing and the battles within the campaign staffs, especially for Gingrich, Bachmann, and Pawlenty. And the story of how Huckabee looked very seriously at a run, and then backed away. Readers will also learn about the inside of the Romney campaign, but not about behind-the-scenes turmoil, because this time around Mitt’s campaign is as smooth and unflappable as is Mitt himself while on a debate stage.

This week’s episode of Devil’s Advocate is the usual half-hour of public affairs television excellence, with two different segments. First, I am joined by Colorado Attorney General John Suthers for an update on the status of the state attorneys general challenge to the constitutionality of the Federal Patient Protection and Affordable Care Act (aka Obamacare). Then Colorado State Treasurer Walker Stapleton sits down to talk about his ongoing efforts to bring some transparency to PERA, Colorado’s public employee retirement system. That’s Friday, November 11 at 8:30 PM on Colorado Public Television 12. Re-broadcast Monday at 1:30 PM.

There’s just something refreshing about Vincent Carroll’s writing. It’s clear, it flows well, it’s to the point, and clever all at the same time. I wish I could do what he does. Hell, I’d take doing it half as well. Look at his latest piece in the Denver Post’s opinion section on red light cameras. I love how he sets up his argument with the, “photo-radar system is working just fine if you believe….” x, y, and z preposterous propositions. Then he puts the punch behind his argument with statistics from reports from the likes of Fox 31’s Heidi Hemmat, CBS4’s Rick Sallinger, and our very own investigative reporter Todd Shepherd. Todd released his own report yesterday on one day’s worth of red light tickets at the intersection of 36th and Quebec. Turns out, a full 94% of the tickets issued “were written to vehicles in the right lane” and “many, if not most, were turning or preparing to turn right on red.” In Vincent’s words, the system is working great if you believe a car making a right on red is one notch less dangerous than driving drunk.

Ultimately, Vincent believes we should do away with these transparent attempts at generating some easy revenue. The facts indicate that they do not make us any safer, and as Vincent points out, nor do they make our governments much richer.

Join your friends at the Independence Institute for our first ever Vern Bickel Award Cocktail Party! We’re partying next Thursday, November 17 at Cableland in Denver. Cableland, as you may know, is the 19,500-square-foot mansion built by Denver philanthropist and Cable TV pioneer Bill Daniels. We will be honoring Chuck Asay, retiring political cartoonist at the Colorado Springs Gazette. We’re also thrilled to present special guest Henry Payne, political cartoonist at the Detroit News.

Celebrate with us while you record the Broncos game. That way you can fast forward when the Jets score and only watch the Broncos play their “duck-and run-as-fast-as-you-can-Tebow” style offense. The party wraps up at 8PM, so you’ll be home in time to see Rex Ryan eat coach John Fox!

***Reminder: Annual Founders’ Night Dinner has moved to February 9, 2012***

Tickets $40/person
*Space is extremely limited*
Valet required
RSVP required to Mary MacFarlane at 303-279-6536 ext. 102 or Mary@i2i.org

Ticket price includes cocktails & heavy appetizers