Author: Timothy Sandefur
Still hot from the argument in Richmond yesterday, the Obamacare litigation now turns to the Florida lawsuit, now on appeal before the 11th Circuit Court of Appeals. It’s a misnomer to call it the Florida lawsuit, of course, since more than half of the states in the union are participating in this case, to challenge the constitutionality of the Obama Administration’s health insurance requirement and other provisions of the law. Yesterday, Pacific Legal Foundation filed this friend of the court brief in support of the plaintiffs.
In addition to supporting the plaintiffs’ standing, PLF (joined by Americans for Free Choice in Medicine, the National Tax Limitation Committee, and our client Matt Sissel) argues that the Mandate is not constitutional under the Commerce Clause or the Necessary and Proper Clause.
The Commerce Clause allows Congress only to regulate commerce among the several states, but the federal government has tried to expand this power to allow Congress to control any behavior whatsoever that has any economic consequences—which is to say, limitless power to do whatever it claims is good for the country. This is no exaggeration. Under the federal government’s interpretation, the power to “regulate commerce” includes the power to compel people to engage in commerce who haven’t chosen to do so. Thus if Congress thought it would be good for the economy to force Americans to buy a car or take dancing lessons or drink milk, it could do so. The theory is that there is no difference between activity and inactivity, so Congress can “regulate” inactivity by forcing people to buy things. In Mead v. Holder, a trial court decision upholding the Individual Mandate, the court said that the difference between activity and inactivity was mere “semantics” and that the federal government can control any “mental activity” that has an ultimate economic effect, as all mental activity does.
As we explain in the brief, there’s no precedent for such assertions of power. Congress has never tried to compel commerce before, and no court decision has ever allowed it. Each of the examples the Obama Administration has mustered actually don’t support the federal government’s authority here. The Endangered Species Act, for example, does not compel commercial activity; nor does the Access to Clinic Entrances Act. These laws merely specify forbidden behavior, as laws have always done. The only example the Administration offers of Congress actually forcing people to buy something, not as a condition of anything else, but simply because of who they are is the Militia Act of 1792—but as we’ve blogged before, that act was not passed under the Commerce Clause. It was passed under the Militia Clause, which does authorize Congress to compel behavior, in language markedly different from the Commerce Clause. That example actually undermines the federal government’s argument, because it shows that when the founders intended to give Congress power to compel behavior, they did not use the word “regulate.”
Still, there is one precedent in American history for what the Administration is arguing here. In 1766, after political protests persuaded Parliament to repeal the unpopular Stamp Act, British lawmakers passed a law emphasizing that it had jurisdiction not only to pass that economic regulation, but any other regulation it considered to be for the general welfare. This statute was called the Declaratory Act, and it declared that Parliament had “full power and authority to make laws and statutes of sufficient force and validity to bind the…people of America…in all cases whatsoever.” This law was so outrageous to the American founders that it found its way into the Declaration of Independence, which denounced Parliament for “declaring themselves invested with power to legislate for us in all cases whatsoever.”
Believing in the crucial importance of limiting government’s authority, the Constitution’s authors chose to give Congress only specific, enumerated powers. Yet the Obama Administration is seeking to establish the legal precedent that would allow Congress to control whatever mental activity will have some ultimate economic effects—even the “activity” of not doing anything in the first place. As the Supreme Court once observed, an argument like this would “completely change the nature of American government. It would convert the government, which the people ordained as a government of limited powers, into a government of unlimited powers,” one which would be capable of legislating for the people of America in all cases whatsoever.
