Legal Glossary

Clauses, Amendments, and Articles of the Constitution Cited

in the

Florida Multi-state Healthcare Lawsuit

by Edward Hassell and Colin Fuess

Commerce Clause 

The term “Commerce Clause” refers to Clause 3 of Article I, Section 8 of the U.S. Constitution. It states that Congress shall have the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

The Commerce Clause authorizes Congress to regulate economic activity in order to ensure that the flow of interstate commerce is free from local restraints that might be imposed by various states. In early U.S. history, the laws of individual states impeded commerce between the states. As it has been interpreted over the years, beginning with the first Supreme Court Chief Justice, John Marshall, the Commerce Clause has had a direct and important influence on the lives of Americans. In the Florida multi-state lawsuit, for example, the Department of Justice argues that people who do not purchase health insurance still have an effect on healthcare nationwide, and therefore the Commerce Clause justifies the government’s mandate that every citizen purchase approved health insurance (the “Individual Mandate”).

Judge Roger Vinson, who ruled that the Affordable Care Act was unconstitutional, included as part of his ruling a history of judicial interpretation of the Commerce Clause.

David Rivkin:

The case against the Individual Mandate in the controversial 2010 healthcare law can be narrowed down to three issues: “the basic principle that the Commerce Clause empowers Congress to regulate only activities undertaken in, or which have a substantial effect on, interstate commerce; and the Constitution’s clear reservation of a general police power to the States alone; and the limits of the Necessary and Proper Clause.” (Rivkin, December 2010)

“The Commerce Clause was meant to ensure the federal government cannot engage in general regulation–we call it police power, which is power to proscribe pretty much every aspect of life that states have—essentially to limit the ability of the federal government to regulate the ways in which businesses operate and people lead their lives.”

(D. Rivkin (personal communication, September 19, 2009))

“The Supreme Court has consistently rejected interpretations of the commerce power that would create a general federal police power – interpretations, in Chief Justice Rehnquist’s words, that leave the court ‘hard pressed to posit any activity by an individual that Congress is without power to regulate.’” (Rivkin, December 2010)

“What if the government was not animated by benign and beneficial goals? Would you be comfortable with it telling you what you can read, what you can think or buy? This is inevitable if you allow the Commerce Clause to support these kinds of government mandates [such as ObamaCare].” (D. Rivkin (personal communication, September 19, 2009))

“Congress has always regulated indirectly and often partially when relying on its commerce power.  An example: rather than simply mandate that flood-plain residents purchase insurance, Congress required flood insurance only as a condition of securing and maintaining a mortgage from a federally regulated financial institution.” (Rivkin, November 2010)

Necessary and Proper Clause

The Necessary and Proper Clause refers to an enumerated power listed in the U.S. Constitution (Article I, Section 8, Clause 18) that states: “The Congress shall have Power – 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.”

This clause establishes the “implied powers” by which Congress has authority to pass legislation in areas not specifically listed in the Constitution. It has been paired with the Commerce Clause to provide the constitutional basis for a wide variety of federal laws.

The term “Necessary and Proper Clause” was coined in 1926 by Associate Justice Louis Brandeis, writing for the majority in the Supreme Court decision in Lambert v. Yellowley, (1926).  In its ruling on the case, the Court upheld a law restricting medicinal use of alcohol as a necessary and proper exercise of power under the 18th Amendment, which had established Prohibition.

The Necessary and Proper Clause has been debated since its inception, with Secretary of the Treasury Alexander Hamilton and Secretary of State Thomas Jefferson arguing over its meaning. Hamilton wanted more expansive power for Congress, while Jefferson was worried about too much power being concentrated in one branch of government. Hamilton won out with support from George Washington and James Madison, as well as the decision McCulloch v. Maryland (1819).   As a result, the central (federal) government grew in power, with continued opposition from those who favored decentralized power.   The underlying issue of which entity should hold more power—the states or the federal government—continues to be debated to this day.

The U.S. Department of Justice has used the Necessary and Proper Clause as one of the primary bases of its defense of the healthcare law.

David Rivkin:

“The Necessary and Proper Clause does not give Congress any power it may need (or want) to achieve its goals or objectives—it only provides the means to implement or effectuate the actual exercise of its enumerated powers.” (Rivkin, December 2010)

“Congress cannot, in other words, use the Necessary and Proper Clause to bridge the gap between legitimate regulations under its enumerated powers that do not achieve its otherwise unreachable objectives, and those goals themselves.  Such an approach would turn the Necessary and Proper Clause on its head.  If the Necessary and Proper Clause can operate to achieve congressional goals, decoupled from what may be necessary to implement or effect the legitimate exercise of an enumerated power, then the Necessary and Proper Clause, too, becomes a general police power.” (Rivkin, December 2010)

The Tenth Amendment

The Tenth Amendment to the U.S. Constitution, which is part of the Bill of Rights, explicitly states that powers not granted to the federal government nor prohibited to the states by the Constitution are reserved for the states or the people. The Founders viewed the Tenth Amendment as “a rule of construction that warns against interpreting the other amendments in the Bill of Rights to imply powers in the national government that were not granted by the original document”  (American Center for Law & Justice, Dec. 8, 2009).  The plaintiffs in the Florida multi-state lawsuit and the Virginia lawsuit, view the Individual Mandate as a clear violation of the Tenth Amendment.  Popular support for the plaintiffs, as well as the commentary from think tanks and non-profit organizations such as the Cato Institute, stems from a concern about the encroachment of federal power on individual liberties.

David Rivkin:

“The elephant in the room is the Constitution. As every civics class once taught, the federal government is a government of limited, enumerated powers, with the states retaining broad regulatory authority. As James Madison explained in the Federalist Papers: “[I]n the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects.” Congress, in other words, cannot regulate simply because it sees a problem to be fixed. Federal law must be grounded in one of the specific grants of authority found in the Constitution.” (Rivkin and Casey, The Wall Street Journal, 2009)

“The Department of Justice is hypocritical when it pays lip service to constitutionalism and enumerated powers and then fails to even attempt to offer some limit—any limit—on the commerce power.  The reason that it has not come forward with any limiting principle is that the Individual Mandate admits of none.  This is readily apparent to all of us who know that there is a judicially enforceable meaningful limit on federal power.  And that is why the Department of Justice will lose.” (Rivkin, November 2010)

“There is a way to deter further constitutional mischief from Congress and the federal courts, and restore some semblance of the proper federal-state balance. That is to give to states—and through them the people—a greater role in the constitutional amendment process.” (Rivkin and Casey, The Wall Street Journal, December 2010)

Legal Cases Cited

in the

Florida Health Care Lawsuit

Marbury v. Madison (1803) 

This landmark case not only established the practice of judicial review of legislation in the newly formed United States, but also marked the first time in U.S. history that a court reviewed and overturned a law on the basis that it was “unconstitutional.”  The case involved William Marbury, who had petitioned the Supreme Court to force President Thomas Jefferson to deliver his commission to serve as Justice of the Peace, a position to which he had been appointed by the immediate previous president, John Adams. The Supreme Court denied the petition, asserting that the part of the law upon which his claim was based, Section 13 of the Judiciary Act of 1789, was unconstitutional.

Critical issues addressed by this case:

  • Supremacy of the Constitution: Congress cannot pass laws that conflict with the Constitution; and the judicial branch will interpret what the Constitution permits.
  • Overreach by Congress. Section 13 of the Judiciary Act of 1789 is unconstitutional in that it attempts to increase the original jurisdiction of the Supreme Court beyond what is permitted by the Constitution.

David Rivkin: 

“The recent war-on-terrorism decisions are not unlike the court’s groundbreaking case of Marbury v. Madison (1803), in which Chief Justice John Marshall avoided an open clash with President Thomas Jefferson (by refusing to order the delivery of a judicial commission signed at the last minute by a departing John Adams), but in doing so established the principle of judicial review.” (Rivkin and Casey, The Washington Post, 2004)

“If there is no aspect of government over which the courts do not have the final say, then under the guise of saying ‘what the law is,’ as the 1803 case Marbury v. Madison put it, judges become the little kings they so often remind the president he is not. This is especially the case today because a number of the traditional constraints on judicial power have been severely eroded.” (Rivkin and Casey, Slate, 2009)

“Chief Justice Marshall stated in Marbury v. Madison that ‘It cannot be presumed that any clause in the constitution is intended to be without effect,’ yet the Department of Justice would do just that [on the healthcare law].” (Rivkin, November 2010)

Wickard v. Filburn (1942)

In its ruling, the Supreme Court recognized the government’s power to regulate economic activity. During the Great Depression, Roscoe Filburn was a farmer growing wheat for on-farm consumption.  This would not have been a problem, except for the fact that he was growing more than the government mandate allowed at the time (the government had issued a limit in order to drive up the price of wheat). Charles Wickard was Secretary of Agriculture at the time, and the government ordered Filburn to destroy his excess crops and pay a fine.

The Court held that growing wheat, even for personal use, was an activity with a substantial economic effect on interstate commerce because Filburn would buy less wheat to feed his chickens, and the market for wheat was national. The ruling, based on the Court’s interpretation of the Commerce Clause, increased federal power to restrict the use of a person’s own land for the purpose of propping up commodity prices.

In its decision, the Court rejected earlier decisions that examined whether the effects of interstate commerce were “direct” or “indirect,” writing that “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’”

David Rivkin:

“In Wickard v. Filburn, in 1942, the Court went so far as to rule that Congress could prevent a farmer from growing wheat for his own consumption. Too much of an effect on commerce, reasoned the court — this fellow gobbling wheat he grew himself. After all, he could have purchased it interstate. On that day, the Framers’ ghosts wept.” (Rivkin,  The Wall Street Journal, 1993)

“In Wickard v. Filburn, in which the Supreme Court upheld a federal law regulating the national wheat markets—the law was drawn so broadly that wheat grown for consumption on individual farms (primarily by livestock) was also regulated. Even though this rule reached purely local (rather than interstate) economic activity, the Court reasoned that the consumption of homegrown wheat by individual farms would, in the aggregate, have a substantial economic effect on interstate commerce and was therefore within Congress’s reach.” (Rivkin and Casey, 2009, p. 97)

“In Wickard, after all, the man at least was a farmer, someone engaged in growing and selling food stocks. Commerce was in the air, somewhere. And the Court continued to pay at least lip service to the notion that the federal government is a government of limited authority, and that Congress can regulate only based upon some nexus to interstate commerce — or in reference to one of its other enumerated powers, like the power to tax and spend. So long as Congress provides a reasonable explanation of that nexus, its actions will be upheld. The limits of the contemporary Commerce Clause are not very clear, but most would agree there are some limits.” (Rivkin, The Wall Street Journal, 1993)

United States v. Lopez (1995)

The first Supreme Court case since the New Deal to set limits on the Commerce Clause, United States v. Lopez resulted in striking down the Gun-Free School Zones Act of 1990. The law had originally stated: “It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.”

The Lopez case marked the first time in over a half century that the Supreme Court had limited Congressional authority to legislate under the Commerce Clause.

Chief Justice Rehnquist, delivering the 5-4 opinion of the Court, identified the three broad categories of activity that Congress could regulate under the Commerce Clause:

  • The channels of interstate commerce
  • The instrumentalities of interstate commerce or persons or things in interstate commerce
  • The activities that substantially affect or substantially relate to interstate commerce

David Rivkin:

“The Lopez case — a very important case affirming limitations of the Commerce Clause — struck down the Gun-Free School Zones Act…emphasized the uniqueness of the dual sovereignty system with federal government exercising limited and enumerated powers and the states exercising general police powers.” (Rivkin, 2011)

“Justice Kennedy’s concurring opinion in Lopez was particularly emphatic about the need to preserve our vertical separation of powers scheme, in which States were meant to possess a set of distinctive and viable powers that could not be trampled by the federal government. Justice Kennedy’s concurring opinion in Lopez was particularly emphatic about the need to preserve our vertical separation of powers scheme, in which States were meant to possess a set of distinctive and viable powers that could not be trampled by the federal government.” (Rivkin and Casey, 2009, p. 99)

“In United States v. Lopez (1995), for example, the Court invalidated the Gun Free School Zones Act because that law made it a crime simply to possess a gun near a school. It did not ‘regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity.’ Of course, a health-care mandate would not regulate any ‘activity,’ such as employment or growing pot in the bathroom, at all. Simply being an American would trigger it.” (Rivkin and Casey, The Wall Street Journal, September 2009)

United States v. Morrison (2000)

This case held that parts of the Violence Against Women Act of 1994 were unconstitutional because they exceeded congressional power under the Commerce Clause and the 14th Amendment to the Constitution. The case involved an alleged rape at Virginia Tech committed by Antonio Morrison and James Crawford, members of the football team. A state grand jury did not find sufficient evidence to charge the men, so the victim filed suit in civil court under the Violence Against Women Act.

Affirmed in a 5-4 decision, Chief Justice Rehnquist wrote for the majority that Congress lacked authority, under either the Commerce Clause or the Fourteenth Amendment, to enact the law. The Court’s overarching reason for the ruling was its belief that the Commerce Clause is a limited grant of power and one that cannot be infinitely capacious.

David Rivkin:

“As the Supreme Court has indicated in both Morrison and Lopez, an infinitely capacious Commerce Clause would endow the federal government with general police powers and render States its wards.” (Rivkin and Casey, 2009, p. 113)

“In two key cases, United States v. Lopez (1995) and United States v. Morrison (2000), the Supreme Court specifically rejected the proposition that the commerce clause allowed Congress to regulate noneconomic activities merely because, through a chain of causal effects, they might have an economic impact.” (Rivkin and Casey, The Washington Post, August 2009)

Gonzales v. Raich (2005)

The Raich case was another landmark ruling concerning the Commerce Clause, this time concerning the production and use of a substance for which interstate commerce is illegal.

Angel Raich and Diane Monson were two women in Northern California who had been growing and using marijuana for medicinal purposes—legal under California law, but not under federal law. They sued the federal government after Drug Enforcement Agency officials destroyed their plants.

The Court applied the usual rule that “Congress has the power to regulate activities that substantially affect interstate commerce.” In Raich, the ban on interstate production, sale, and possession of marijuana would have been unenforceable without the ability to reach intrastate conduct, given that intrastate production, sale, and possession of marijuana could not be “hermetically sealed off from the larger interstate marijuana market.”

David Rivkin:

“As the Justices explained in Gonzales v. Raich, the most recent Commerce Clause case, federal regulation is permissible so long as there is a rational basis to believe that ‘activities, taken in the aggregate, substantially affect interstate commerce.’ To summarize, under the current, most cutting-edge Commerce Clause jurisprudence, Congress can regulate a virtually infinite variety of inter- and intrastate economic activities, particularly if the latter are being reached as part of a comprehensive regulatory scheme directed at the regulation of interstate commerce or instrumentalities thereof. This proposition is well articulated in Justice Scalia’s concurring opinion in Gonzales v. Raich, where he noted that:

 “‘The authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.’” (Rivkin and Casey, 2009, p. 98)

“DOJ most certainly misreads Raich as standing for the proposition that Congress may do anything, including reaching inactivity, as part of a larger statutory scheme. The rule of Raich, as explained by Justice Scalia, is that “Congress may regulate even non-economic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.” (Rivkin, November 2010)

“In Raich, for example, the ban on interstate production, sale, and possession of marijuana would have been unenforceable without the ability to reach intrastate conduct, given that intrastate production, sale, and possession of marijuana could not be ‘hermetically sealed off from the larger interstate marijuana market.’” (Rivkin, December 2010) 

United States v. Comstock (2010)

Graydon Comstock had almost finished serving 37 months in prison for child pornography, when U.S. Attorney General Alberto R. Gonzales certified that Comstock was a “sexually dangerous person.”  The law Gonzales had applied had been ruled unconstitutional by lower courts on the grounds that it exceeded Congress’s constitutional authority. Then Solicitor General Elena Kagan argued the Department of Justice’s position that the Necessary and Proper Clause gave Congress the power to enact the law.  The Supreme Court ruled against the Department of Justice.

David Rivkin:

“As the Supreme Court reaffirmed this May in the Comstock case, the Necessary and Proper Clause gives Congress the power to effect or implement otherwise legitimate exercises of its enumerated powers.  As a result, the Individual Mandate cannot be supported by the Necessary and Proper Clause because it does not effect or implement a legitimate exercise of the power to regulate interstate commerce.” (Rivkin, December 2010)

“[Justice Kennedy] wrote a really strong concurrence that in a moving fashion emphasized the uniqueness of the dual sovereignty system with [the] federal government exercising limited and enumerated powers and the states exercising general police powers.  He called it the most distinctive feature of American constitutionalism. And if you look at his decision in the Comstock case, which came out in May of last year, he has a much briefer concurrence, but echoes very much [the] same themes. So this is an issue that Justice Kennedy feels very strong about.” (Rivkin, 2011)


  1. Rivkin, D. (2010, December 16). Opening arguments in Florida multi-state lawsuit.
  2. Rivkin, D. (2010, November 18). Speech presented at Federalist Society Convention, Washington, D.C.
  3. Rivkin, D., & Casey, L. A. (2009, September 18). Mandatory insurance is unconstitutional. The Wall Street Journal. Retrieved from
  4. Rivkin, D., & Casey, L. A. (2010, December 21). The states can check Washington’s power. The Wall Street Journal. Retrieved from
  5. Rivkin, D., & Casey, L. A. (2004, August 4). Bush’s good day in court. The Washington Post. Retrieved from
  6. Rivkin, D., & Casey, L. A. (2009, August 14). Judges who would be king. Slate. Retrieved from
  7. Rivkin, D. (1993, September 23). Health care reform vs. the Founders. The Wall Street Journal. Retrieved from
  8. Rivkin, D., & Casey, L. A. (2009). A healthy debate: The constitutionality of the individual mandate. Pennsylvania Law Journal, 158 (93). 93-118.
  9. Elliott, T. (Executive Producer). (2011, February 1). [Interview with Laura Ingraham]. Laura Ingraham Show. [Radio broadcast]. Washington, D.C.: Talk Radio Network, WTNT.
  10. Rivkin, D., & Casey, L. A. (2009, August 22). Illegal health reform. The Washington Post. Retrieved from
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