Prof. Mark Scarberry of Pepperdine Law defends the use of the Alexander Hamilton quotation in the dissent to National Federation of Independent Business v. Sebelius against an attack at the History News Network:
Whatever you think about the views of the four dissenters in NFIB v. Sebelius, the quote from The Federalist No. 33 was not misused in their joint dissent. Hamilton was trying to rebut claims that the necessary and proper clause would give the federal government unlimited power (particularly claims that its application to the taxing power would give the federal government power to displace the state governments). He explained that it would not give the federal government unlimited power and that the powers granted to the federal government would be no greater with the N&P clause than they would be without it. According to Hamilton, the N&P clause simply makes explicit what is already implicit in the grant of the enumerated powers. The joint dissent argues that the interpretation of the commerce clause and the N&P clause urged by the government would result in the federal government having the kind of unlimited power that Hamilton assured his readers it would not have. For that purpose the joint dissent properly quoted from The Federalist No. 33. The joint dissent seemingly recognizes that the taxing power could have been used to create the same monetary incentive to obtain health insurance that the ACA’s mandate created. That is at least as broad a view of the taxing power as the one held by Hamilton. According to the joint dissent, people who do not obtain health insurance “could be denied a full income tax credit given to those who do purchase the insurance.” It notes that “[t]he issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.” The difference between the four dissenters and the other five justices on the mandate issue was whether the provision could be construed as an exercise of the taxing power. (The four dissenters also argued that if the provision were construed to be a tax, then there would be an issue of whether it was a direct tax that would have to apportioned among the states, but on their view it was not necessary to reach that issue. The Chief Justice’s opinion for the Court in Part III.C. reached the issue and held that it was not a direct tax.)
History buffs, start your engines.
