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Constitutional education, history, commentary, reform, compliance, and interpretation.

2012/03/21

The original meaning of "carrying into execution"

Much of the argument on the ACA should turn on the original meaning of the qualifying phrase in the Necessary and Proper Clause. Here is an outline.

THE ORIGINAL MEANING OF "CARRYING INTO EXECUTION"

  1. DELEGATION OF POWER IS AUTHORIZATION TO EXECUTE AN OFFICIAL ACT
    1. Lawmaking power has two parts.
      1. To enact a statute and publish it.
      2. To authorize an executive agent to enforce the statute.
        1. Only application to oneself or discharge of official duties can be continual.
          1. For most enforcers, “execution” occurs only during specific acts of enforcement.
          2. To be continual the enforcer must be able to enforce even when asleep.
        2. Application to subordinates or private parties is discrete, with a beginning and an end, although it may be an overlapping series.
  2. COMPLIANCE BY NON-GOVERNMENT ACTORS AND OUTCOMES ARE NOT PART OF EXECUTION
    1. Established usage in 1787 did not call compliance by non-officials “execution” of a law.
    2. Established usage in 1787 did not call outcomes beyond the duties of an official “execution”.
  3. “NECESSARY” MEANS WHAT MUST BE DONE FOR SOMETHING ELSE TO BE DONE
  4. “PROPER” MEANS FOR A LEGITIMATE PUBLIC PURPOSE, REASONABLE, AND JUST
  5. “CARRYING” MEANS MAKING AN EFFORT
  6. “EXECUTION” MEANS AN ENFORCEMENT EFFORT
    1. It is performance of an official enforcement act.
    2. Only interference with an enforcement act would bring private action within the scope of what is necessary and proper.
    3. Private action outside of official enforcement action is not within the scope.
  7. “POWERS” ONLY THOSE VESTED IN U.S. GOVERNMENT ACTORS, NOT PRIVATE PERSONS
    1. Compliance with statutes by private persons is not “execution”.
    2. The results of compliance by private persons is not “execution”.
    3. Private persons cannot be made government actors other than through militia call-up, without their consent.
    4. A power to command private persons to enforce statutes is found only in the Militia Clauses, and that is only when called up as militia, not between emergencies.
    5. Purchase of health insurance is not defense activity, or militia, and therefore cannot be commanded by statute or officials enforcing statutes.
  8. THE RESTRICTIVE PHRASE “CARRYING INTO EXECUTION” HAS NEVER BEEN RESOLVED BY THIS COURT
    1. The phrase was not argued or decided in the cases beginning with McCulloch v. Maryland.
    2. Without such argument, the Court presumed “necessary and proper” was for the purposes of the lawmakers, whatever those might be.
    3. But U.S. Const. Art. I Sec. 8 Cl. 18 does not state “for the purposes of Congress”, but the much more restrictive phrase “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.”
  9. THERE IS NO VESTED POWER FOR WHICH THE INDIVIDUAL MANDATE CAN BE NECESSARY AND PROPER
    1. Medical insurance is not “commerce” subject to federal regulation.
    2. The individual mandate cannot be necessary and proper to performance of an official enforcement act.
  10. INDIVIDUAL MANDATE MAY BE CONSTITUTIONAL FOR SOME
    1. For United States officials, agents, employees, and contractors.
    2. For persons residing in federal enclaves created under U.S. Const. Art. I Sec. 8 Cl. 17, but only if they are represented in Congress, if it is deemed a “tax”.
    3. It is not constitutional for all others, and the Court should so hold.


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