(February 13, 2012) The Policy Foundation has joined a legal challenge to nationalized medical insurance, joining a coalition of national and state think tanks and legislators in a friend-of-the-court brief filed today with the U.S. Supreme Court. The amicus curiae brief, filed by the Cato Institute1, the Pacific Legal Foundation, Competitive Enterprise Institute, 14 organizations including the Policy Foundation, and a bipartisan group of 333 state legislators (including 58 from Arkansas) urges the Court to affirm the Eleventh Circuit’s ruling that the mandate exceeds Congress’s power to regulate interstate commerce in U.S. Dep’t of Health & Human Services v. Florida. 


Legal Argument


Intrastate economic activity, in modern legal doctrine can be a “necessary” means of carrying out Congress’s regulatory authority2 if, in the aggregate, it has a substantial effect on interstate commerce.  The obvious corollary is that regulating non-economic activity cannot be “necessary,” regardless of its economic effects.  A power to regulate inactivity is even more remote from Congress’s commerce power.  The government characterizes being uninsured as the activity of making an “economic decision,” i.e., how to finance health care services. But the notion that probable future participation in the marketplace constitutes economic activity pushes beyond existing precedent.  The definition of “activity” leaves individuals with no way of avoiding federal regulation; at any moment, we are all not engaged in an infinite set of activities.  Retaining the distinction between economic and non-economic activity limits Congress to regulating intrastate activities closely connected to interstate commerce—preserving the proper role of states and preventing Congress from using the Commerce Clause as a federal police power.  The distinction also provides a judicially administrable standard that obviates fact-based inquiries into the purported economic effects and the relative necessity of any one regulation, an exercise for which courts are ill-suited. 



Other Points

·         The individual mandate exceeds Congress’s power to regulate interstate commerce under existing doctrine.  The outermost bounds of this Court’s Commerce Clause jurisprudence—the “substantial effects” doctrine—stop Congress from reaching intrastate non-economic activity regardless of its effect on the economy.  Nor can Congress compel someone to engage in commerce, even if it purports to do so as part of a broader regulatory scheme.


·         The Constitution does not permit Congress to conscript citizens into economic transactions to remedy the admitted shortcomings—which the government usually terms “necessities”—of a hastily assembled piece of legislation. The Necessary and Proper Clause is not a blank check for Congress to ignore constitutional limits by manufacturing necessities and commandeering citizens to do its bidding.


·         This Court’s precedents are clear: Congress may reach non-commerce under its power to regulate commerce only via the Necessary and Proper Clause, and this executory power is categorically limited to the qualitatively distinct class of economic activity. Congress’s regulatory authority extends only to certain types of activity, rather than to any activity (or inactivity) that passes some threshold degree of effect on interstate commerce.


·         Denying Congress the power to mandate, as distinct from regulate or prohibit, activity—whether economic or not—by contrast, requires no such judicial policymaking and would affect no other existing law.  Congress could have reformed the healthcare system in many ways—including even a Medicare-for-all “single payer” scheme—that would have been legally unassailable under existing doctrine.


·         If the federal power to enact economic mandates is upheld, Congress would be free to require anything that is part of a national regulatory plan and to then hide those costs from the American public.


·         Outside of explicit constitutional authority or a preexisting duty of citizenship, imposing “economic mandates” on people is improper, both in the lay and constitutional senses of that word. 


·         For the first time, the federal government has imposed a mandate not derived from specific constitutional clauses or duties of citizenship. 


The brief is posted at: http://www.cato.org/pubs/legalbriefs/HHSvF-Brief.pdf

1 The Cato authors are Ilya Shapiro, Trevor Burrus, Robert A. Levy, Roger Pilon, Timothy Sandefur, and Anastasia Killian. www.cato.org


2  Regulatory authority as that term is understood under the Constitution’s Necessary and Proper Clause.