CIR brief to Supreme Court Targets Health Law

Brief filed on behalf of former AG’s, Justice Officials

Washington, DC: Today the Center for Individual Rights filed an amicus brief authored by former Solictor General Theodore Olson challenging the individal mandate portion of the Patient Protection and Affordable Care Act of 2012, popularly known as “ObamaCare.”

The brief was filed on behalf of Attorney General John Ashcroft, Attorney General William P. Barr, Assistant Attorney General Timothy E. Flanigan, Attorney General Edwin Meese III, and Attorney General Michael B. Mukasey. The brief argues that allowing Congress to regulate inactivity, such as the failure to purchase health insurance, has no foundation in the text, history, or purpose of the commerce clause.

The brief explains that the framers, the eighteenth century public, and the early Supreme Court decisions all understood the power to “regulate interstate commerce” to refer to the regulation of existing commerce, not the compulsion of new commerce.

If the current Supreme Court were to expand the Commerce Clause to include the power to compel commercial activity, it would convert a grant of limited power into an unlimited authority to address any problem found to be national in scope.

The brief notes that “under such limitless logic,” Congress could regulate an individual’s decision not to buy a car by compelling every American to buy a Ford, in order to aid the ailing U.S. automotive industry. Or, Congress could compel all Americans to subscribe to home delivery of a daily newspaper to forestall the decline of print journalism. Or, finally, it could mandate that households use their uninvested savings to purchase equity in domestic corporations, in order to bolster the share price and fiscal soundness of the Nation’s businesses.

The brief argues that not even the modern expansive cases cited by courts that have upheld the individual mandate hold that Congress can compel commercial activity by individuals not otherwise disposed to such activity. And for good reason: The Commerce Clause is not a blank check. It is a specific and circumscribed grant of power that allows Congress to “regulate” ongoing commercial activity. To hold otherwise would represent a break with the text, history and meaning of the commerce clause, which reflect a grant of limited power to address problems in the free flow of existing commerce between the states.

CIR President Terence Pell commented, “This fight is about more than nationalized healthcare. Florida v. HHS poses an unavoidable choice between two views of government. As today’s brief makes clear, the text and history of the Commerce Clause supports the idea that ours is a limited government circumscribed by enforceable, constitutional limits, not a government of unlimited powers desigend to make every problem into a federal concern.”