In Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, Professor Andrew Koppelman argues that the individual mandate in the Patient Protection and Affordable Care Act is constitutionally authorized by the Necessary and Proper Clause. This view is fundamentally wrong. The Necessary and Proper Clause is based on eighteenth-century agency law, including the fundamental agency doctrine of principals and incidents. Accordingly, the Clause only allows Congress to exercise powers that are incident to—meaning subordinate to or less “worthy” than—its principal enumerated powers. The power to compel private persons to engage in commercial transactions with other private persons is not an incidental power. Thus, the mandate is not authorized by the Necessary and Proper Clause, whether or not such a power is “necessary and proper for carrying into Execution” other powers. In addition, eighteenth-century public law carried administrative law principles—including the fiduciary norms at the heart of agency law—into delegations of power to political actors. One of the most basic of these fiduciary norms is the obligation to treat multiple principals equally. That equal treatment requirement is violated by the individual mandate, which compels transactions with a favored oligopoly of insurance companies. In short, the mandate is not an exercise of incidental power within the scope of the Necessary and Proper Clause, nor is the mandate “proper.”

This Essay takes the Supreme Court’s recent decision in Connick v. Thompson as a point of departure for examining the efficacy of professional responsibility measures in combating prosecutorial misconduct. John Thompson, the plaintiff in Connick, spent fourteen years on death row because prosecutors concealed exculpatory blood evidence from his defense attorneys. In rejecting Thompson’s attempt to hold the New Orleans District Attorney’s Office civilly liable for failing to train its prosecutors in proper discovery procedures, the Connick Court substantially narrowed one of the few remaining avenues for deterring prosecutorial misconduct. Implicit in the Court’s reasoning was a belief that district attorneys' offices should be entitled to reasonably rely on professional responsibility measures to prevent prosecutorial misconduct. This Essay subjects that premise to a searching critique by surveying all fifty states’ lawyer disciplinary practices. Our study demonstrates that professional responsibility measures as they are currently composed do a poor job of policing prosecutorial misconduct. However, we also take seriously the Supreme Court’s insistence that those measures should function as the primary means of deterring misconduct. Accordingly, in addition to noting the deficiencies of professional responsibility measures, we offer a series of recommendations for enhancing their effectiveness.

Introduction

Federal and state law enforcement officials throughout the nation are currently using Global Positioning System (GPS) technology for automated, prolonged surveillance without obtaining warrants. As a result, cases are proliferating in which criminal defendants are challenging law enforcement’s warrantless uses of GPS surveillance technology, and courts are looking for direction from the Supreme Court. Most recently, a split has emerged between the Ninth and D.C. Circuit Courts of Appeal on the issue. In United States v. Pineda-Moreno, the Ninth Circuit relied on United States v. Knotts—which approved the limited use of beeper technology without a warrant—to uphold warrantless use of GPS surveillance technology. However, in United States v. Maynard, the D.C. Circuit held that warrants are required for law enforcement use of GPS tracking devices. In distinguishing Knotts, the D.C. Circuit pointed to the vast differences between the relatively primitive beeper technology used almost thirty years ago and the unprecedented power of GPS surveillance technology used today. The Seventh Circuit Court of Appeals and various state courts are similarly divided. In light of this confusion, the Supreme Court has recently agreed to review the issue, granting certiorari from the decision of the D.C. Circuit in Maynard and leaving the Pineda-Moreno petition in a holding pattern. On November 8, the Supreme Court will hold oral arguments in the case, which was docketed under the new name United States v. Jones.

The Supreme Court’s Fourth Amendment doctrine, including its cases evaluating new surveillance technologies, has always been informed by one of the Amendment’s animating principles: its mandate to prevent abuse of police power. While the Court has not always articulated this theory of the Fourth Amendment as clearly as it could have, a careful review of the case law reveals a concern about abuse and “a too permeating police surveillance.” This reading demands that, in any review of new surveillance technology, courts must evaluate the technology’s potential for abuse.