Tuesday, April 5, 2011

Summaries of yesterday's amicus briefs

Here are the first of our summaries of yesterday’s amicus briefs from the Fourth Circuit. We will continue to post them as they are completed.

Pacific Legal Foundation:

The Pacific Legal Foundation limits its argument to the standing issue, arguing that “states have a constitutionally recognized sovereign interest in articulating and defending the rights of their citizens.” The Pacific Legal Foundation states the following in support of this claim. First, that “federalism exists to protect the rights of citizens and the Tenth Amendment implicitly incorporates states’ sovereign interest in defending citizens’ rights.” Second, that “a state’s sovereign interest in protecting individual rights is distinct from the individual’s interest in those rights and is not a political question.” Third, that “states are uniquely positioned to litigate Tenth Amendment violations, and courts should interpret standing flexibly to allow them to do so.” Finally, the Pacific Legal Foundation argues that “allowing states to sue on these grounds is a viable alternative to ‘nullification.’”

Washington Legal Foundation and Constitutional Law Scholars:

The Washington Legal Foundation and Constitutional Law Scholars limit their arguments to whether Congress’s enactment of the individual mandate was supported by the Commerce Clause or the Necessary and Proper Clause.

First, in regard to the Commerce Clause, they write that “nothing in the Court’s Commerce Clause precedents gives Congress power to force private citizens to engage in economic transactions they would prefer to avoid.” They argue that “the individual mandate regulates neither consumption nor any other activity, but applies instead to virtually all uninsured Americans whether or not they consume health care services.” Thus, “if, as the Secretary suggests, the Commerce power extends to all economic decisions as well as all economic activities, Congress would enjoy unlimited authority to mandate any behavior of any kind.”

Second, regarding the Necessary and Proper Clause, the Washington Legal Foundation and Constitutional Law Scholars argue that “the individual mandate runs afoul of at least three of the five criteria for evaluating Necessary and Proper Clause cases recently utilized by the Supreme Court in United States v. Comstock.” They also argue that the individual mandate is not proper because “[h]istorical evidence suggests that ‘proper legislation at the very least must not upset the constitutional balance of power between the federal and state governments by giving Congress virtually unlimited authority.”

American Center for Law & Justice:

The American Center for Law & Justice limits its argument to whether the Commerce Clause authorizes the individual mandate, and whether the individual mandate is severable from the rest of the Act.

First, they argue that “the Commerce Clause has never been understood to encompass all ‘conduct’ that affects interstate commerce.” They argue that the Commerce Clause “does not authorize Congress to regulate the inactivity of American citizens by requiring them to buy a good or service (such as health insurance) as a condition of their lawful residence in this country.” Thus, “Because the decision not to engage in interstate commerce is not interstate commerce,” the individual mandate exceeds Congress’s Commerce Clause authority.

Second, the American Center for Law & Justice argues that the “individual mandate’s unconstitutionality requires the entire PPACA to fall.” This is based on two factors: that the PPACA does not contain a severability clause; and that, by the government’s admission, the PPACA’s remaining provisions cannot function without the individual mandate.”

American Physicians and Surgeons, Inc.:

American Physicians and Surgeons, Inc. argue that “Congress lacks power to enact Section 1501 for two reasons.” First, they argue that “there is no power to regulate commerce because there is not commerce.” Second, they argue that “Section 1501 fails to comply with the Constitution’s procedural requirements and substantive restrictions.” Regarding procedural requirements, American Physicians and Surgeons, Inc. argues that “Congress violated the Presentment Clause by simultaneously enacting and amending Section 1501.” On the substantive side, they argue that “Section 1501 invades the ‘private enclave’ enjoyed by patients since the time of Hippocrates.”

They also address the severability issue. American Physicians and Surgeons, Inc. argue that rather than being “a doctrine of judicial restraint,” the severance doctrine is a form of “judicial activism that allows, and possibly even encourages, constitutional sloppiness by Congress and the President.” Thus, they conclude that the individual mandate cannot be severed from the rest of the Act.