The opponents of the individual mandate are still neglecting to make an argument that is critical to their eventual success: that “carrying into execution” only meant to make an effort defined in the delegation of the base power, and not to do whatever it might seem convenient to get an outcome for which the power might be exercised. It is “carrying into execution”, not “carrying into effect”. This point has never been lifted out of the N&P clause for a focused finding, and it is past time to do so. That doing so might unravel a long string of precedents going all the way back to McCulloch notwithstanding.
We have records of the debates in many of the conventions that provide evidence of original understanding. More than that, we have evidence of what legal authorities the framers and ratifiers looked to, and can there find the meanings of the terms of legal English of the time. So if a point of law was not explicitly debated in the ratifying convention, one can look to authorities like Blackstone, Coke, Vattel, and others the framers and ratifiers read and accepted.
From Vattel we get the meaning of “commerce”, which was a term of art, not a common term on the streets of colonial America. It meant only transfer of title and possession (trade) of tangible commodities. Marshall in McCulloch even acknowledged that meaning. He and subsequent judges have based every exercise of power less on the Commerce Clause than on the N&P Clause. Medical care is not “commerce”. Neither is insurance. The only nexus is that they “affect” commerce (tangible commodities), but that is only a correct interpretation if one first accepts the premise that one cannot carry a power into execution unless one can also exercise such power over things that are not “commerce” but “affect” commerce. It interprets “carrying into execution” as meaning “carrying into effect”. That was not its original meaning. “Execution” is a effort, not obtaining a result.
If you read SC opinions carefully, you will find that after all is said and done, the decisions for the last 74 years have not been interpretations of what is “commerce”, but on what “affects” commerce. Yes, there were several pre-1937 decisions that expanded the definition of what is “commerce”, but on closer reading they were reaching for what affects commerce, not commerce itself.
So for example, mining is not commerce. The ore may be commerce when it is sold, but not the extraction, transport, or storage of it. That activity affects commerce without being commerce.
Similarly, agriculture is not commerce. The food and fiber is commerce when traded, but tilling, planting, fertilizing, irrigation, harvesting, storage, and transport are not commerce. They are activities that affect commerce.
Medical care is not commerce. It is is a service, and services are not commerce. It may involve the sale of pharmaceuticals, or use of medical instruments or supplies. Those are commerce, but the surgery is not. It comes in because it affects commerce.
Insurance is not commerce. It is a service. And it doesn’t involve the sale of any tangible commodities, so it does not affect commerce, and is not subject to regulation, by original understanding.
Likewise, debt instruments like federal reserve notes are not commerce. Neither are stocks or bonds.
To understand court decisions people need to understand that economic activity generally is NOT commerce. It is only brought under regulation because it affects commerce.
Now Art. I Sec. 8 Cl. 3 does not delegate power to regulate things that affect commerce, only commerce itself. Therefore, the only place one can find the alleged authority to regulate things that affect commerce is in the N&P Clause.
So how does one get that interpretation? Only by interpreting the power to regulate as the power to do whatever it takes to get a regulated outcome, not just to do things like adopt statutes with civil penalties, hire inspectors, rent office space, publish documents, etc., which are necessary and proper to make the effort authorized by the Constitution.
So everything comes down to the meaning of what is “carrying into execution”.
The way to understand what the Founders meant by a delegation of a power and a supplemental necessary and proper power to carry it into execution is to examine what it meant to sentence someone to hang and issue a death warrant to carry out the execution. There were cases in which the guy hung did not die. Either the rope broke or he had a tough neck. It such situations the courts often held he could not be re-hung to make sure he was dead, because he had already been hung once.
The power was only to make the effort, not to get the result.
This understanding seems strange to modern users of the English language, but it was the understanding in 1787, and that is the meaning to which we are bound, to the extent we can discover it, and we can. The historical evidence is there. It make take a lot of research and reading, but enough such effort will find what was meant.
We are now confronting our slide down a slippery slope that began with McCulloch and has proceeded through Wickard, Raich, and Comstock, until we can see the bottom and realize our mistake in not arresting the slide earlier.
We need to unwind that entire line of precedents. It is not enough to try to distinguish. The action/inaction distinction is likely not to fly, and hanging everything on the meaning of “proper” is a weak argument. The Supreme Court might not be willing to overturn the entire line of precedents in a single decision, but we can offer them a starting point for doing so, and the way to do that is to focus on the meaning of the phrase “carrying into execution”, which was only to make a certain kind of effort, and not to do whatever it might seem convenient to get a desired outcome. It is not “carrying into effect”.
Now if this argument were made the justices would no doubt realize that it would eventually lead to rolling back all the way to McCulloch, but they don’t have to explicitly recognize that. By overturning the individual mandate on the finding that it does not affect the power of Congress to make a regulatory effort, even if it might affect an outcome of such effort, they could leave it to lower courts to begin the unraveling.
However, someone needs to make that argument. The Court can’t be expected to make it themselves.
For more on this see the ACA Litigation Blog and especially the Brief for the NFIB, Ahlburg, and Brown. My criticism is that the brief does not adequately develop and clarify the original meaning of "carrying into execution" as "making an effort", rather than "getting a regulated outcome". Section III of the brief makes a start at that, but needs more clarity and focus. If Congress has a necessary and proper power to regulate things that interfere in the exercise of an effort, that does not extend to things that interfere in commerce itself, and the argument in the brief seems to accept that, severely weakening their position.
So for example, if a state required shippers of commodity X to pass through inspection points A, B, and C, and Congress required them to pass through points B, C, and D, that would not be something that could be properly enjoined. It would just mean that those shippers would have to pass through B or C. If the state required points A, E, or F, then the combined effect would be to forbid shipment of X totally. But that would still not be interference with the regulatory effort of Congress, only with commerce itself, and enjoining it would not be necessary and proper to carry into execution of the regulatory power. To be interference in the regulatory effort, it would have to do something like obstructing federal inspectors from arriving at their inspection stations to do their jobs.
The unavoidable problem is that the correct understanding of "carrying into execution" is in logical conflict with the precedents in McCulloch, Wickard, Raich, and Comstock. One can pretend to accept them and try to distinguish them, but there is no getting around that a correct decision in this case on that understanding will begin the unraveling of those precedents, even if it takes several cases and years for the unraveling to run to completion.
My preference would be to preface every reference to those precedents with "if arguendo, ... was decided correctly", to make it clear what the issue is. To gloss over this isn't likely to fool anyone, least of all the members of the Supreme Court. This is the case that will either finally entrench the overthrow of the Constitution, or overthrow 192 years of wrong precedents. We have to choose. We can't keep balancing on the edge of the knife. We can't keep both. This is the fork in the road.
