CATO Institute:
The CATO Institute’s brief first argues that individual mandate is unconstitutional under the “substantial effects” doctrine “that defines the scope of the Necessary and Proper Clause in the context of the Commerce Power.” In support of this claim, CATO writes that “the ‘substantial effects’ doctrine interprets the Necessary and Proper Clause in the Commerce Clause context to allow Congress to exercise its regulatory authority while cabining that authority, and “regulating inactivity transcends the Necessary and Proper Clause’s limits on the Commerce Clause.” Second, CATO argues that the “individual mandate cannot be justified as an essential part of a broader regulatory scheme” because Congress cannot regulate inactivity.” Finally, CATO argues that “the individual mandate constitutes ‘commandeering of the people’ that is not ‘proper’ under the Necessary and Proper Clause.”
Mountain States Legal Foundation:
The Mountain States Legal Foundation’s brief argues the following in support of the plaintiffs. First, that the “the principle of a limited federal government of enumerated powers is deeply in the history of the United States,” and are “enshrined in the Constitution.” Second, that the court should affirm the district court’s ruling because doing otherwise would cause the federal government to cease being one of enumerated powers. In furtherance of this claim, the Mountain States Legal Foundation argues that “if the individual mandate is a valid exercise of the Commerce Power, the Commerce Clause will render the other enumerated powers superfluous, and that “if the individual mandate is a valid exercise of the Commerce Power, the principle of a limited federal government of enumerated powers will be eviscerated.”
Justice and Freedom Fund:
The Justice and Freedom Fund makes the following arguments against the individual mandate’s constitutionality and severability. First, the Fund argues that the court “should strike down the entire act in order to protect the Doctrine of Separation of Powers as mandated by the Constitution.” In support of this, the Fund argues that “this court cannot conform the Act to the Constitution without performing radical surgery—a quintessentially legislative function.”
Second, the Justice and Freedom Fund argues that the court should “strike down the entire Act because severance would thwart the objectives of Congress in enacting it.” According to the Fund, this is so because “it is virtually certain that Congress would not have passed the Act without the individual mandate,” and because “even if the remaining provisions could function independently—a truncated act would not serve Congressional purposes.”
Finally, the Justice and Freedom Fund argues that “neither the Necessary and Proper Clause nor the Commerce Clause can salvage the perverse ‘necessity’ Congress itself created.” The Fund argues that “the Necessary and Proper Clause is not a separate grant of authority that Congress can use to penalize Americans who decline to purchase health insurance. The Fund proceeds to explain how the individual mandate fits within the five categories that the Supreme Court relied upon in determining the outcome of United States v. Comstock. Like the Washington Legal Foundation, the Fund concludes that when placed within the Comstock framework, the individual mandate falls short of constitutionality under the Necessary and Proper Clause.
Kurt Rohlfs:
Mr. Rohlfs’s brief focuses on two issues: whether Virginia has standing and whether “the ACA violates the Constitution’s apportionment and geographic uniformity provisions.” In regard to the latter, Mr. Rohlfs argues that (1) the ACA is an entitlement, (2) “compulsory premiums paid to satisfy the individual mandate are taxes,” and (3) “even if not ‘taxation,’ the individual mandate is not authorized by the Commerce Clause.”
Landmark Legal Foundation:
The Landmark Legal Foundation makes the following arguments against the ACA’s constitutionality. First, it argues that the individual mandate is “an unprecedented and unconstitutional police power impermissible under either the Commerce Clause or the Necessary and Proper Clause.” According the Foundation’s brief, “the Supreme Court’s modern Commerce Clause and Necessary and Proper Clause jurisprudence does not support the proposition that Congress may compel private individuals to engage in economic activity.” Second, the Landmark Legal Foundation argues that “Section 500A of the PPACA establishes an unconstitutional tax.”
Family Research Council:
The Family Research Council limited its argument to the severability issue. The Council argues that the court can “hold Section 1501 nonseverable from the remainder of PPACA without adverse ramifications for other statutes.” According to the Council, Virginia’s severability argument “under Alaska Airlines comports with the Supreme Court’s most recent restatement of [the] severability doctrine in Free Enterprise Fund.” Furthermore, the Council argues that Virginia’s severability argument is also confirmed by the three principles of [the] severability doctrine announced by the Supreme Court in Ayotte.” Finally, the Council concludes that Virginia’s “severability argument from Alaska Airlines is consistent with 111 years of prior Supreme Court precedent.”
