Wednesday, May 25, 2011

Summaries of Seven-Sky v. Holder amicus briefs

Association of American Physicians & Surgeons et al.:

Here, amici argue that the individual mandate is unconstitutional because (1) it violates the “Fifth Amendment’s Equal Protection Component,” and (2) it violates the Takings Clause.

Caesar Rodney Institute:

The Caesar Rodney Institute argues the following. First, that the “PPACA does not contain an express jurisdictional element, limiting regulation to individuals participating in the interstate health insurance market.” Second, that the “Congressional findings underpinning the PPACA rely on a method of reasoning to invoke the Commerce Clause that the Supreme Court has already rejected as untenable.” writes that “[a]rguments made for the PPACA’s individual mandate defy well recognized liberty interests protected by the Constitution.” In support, argues that (1) the “beliefs of its citizens provide no basis for government regulation,” (2) that “Due Process prevents government from regulating based on arbitrary and irrebuttable presumptions,” and (3) “Due Process protects the liberty of citizens to avoid jurisdiction by choosing not to engage in commercial activity.”

CATO Institute et al.:

Here, amici argue the following. First, amici argue that the “explicit purpose of Article I is to limit Congress’s powers.”

Second, amici argue that the individual mandate “exceeds the scope of the Necessary and Proper Clause as used to execute the power to regulate interstate commerce under the “substantial effects” doctrine.” In support, amici argues that (1) “[t]he ‘substantial effects’ doctrine applies the Necessary and Proper Clause to the Commerce Power and allows Congress to use its regulatory authority while cabining that authority,” (2) that “[r]eglulating inactivity transcends the Necessary and Proper Clause’s limits on the Commerce Clause,” and (3) that the “Comstock factors that are the most recent articulation of the Necessary and Proper Clause’s limits weigh against the individual mandate.”

Third, amici argue that the individual mandate “cannot be justified as an ‘essential part of a broader regulatory scheme’ because Congress cannot regulate inactivity.” According to amici, “[i]nactivity is not a type of activity,” and this distinction “provides judicially manageable standards with a minimum of judicial policymaking.” Also, the individual mandate “constitutes a ‘commandeering of the people’ that is not ‘proper’ under the Necessary and Proper Clause.”

Chamber of Commerce of the United States:

Just as it has in the other ACA cases, the Chamber of Commerce’s brief in Seven-Sky concentrates on the severability issue. You can find our most summary of the Chamber’s position here.

Judicial Watch:

Judicial Watch argues that, “Based on a review of United States Supreme Court precedents as well as the plain meaning of the term ‘activity’, Congress exceeded its authority by regulating an individual who simply does not purchase health insurance.”

Texas, Florida, Alabama, Indiana, Kansas, Maine, Michigan, Nebraska, North Dakota, Ohio, Pennsylvania, South Dakota, Washington, and Wisconsin (filed by Paul Clement):

Here, amici argue the individual mandate “exceeds Congress’s authority to regulate interstate commerce” for the following reasons. First, amici argue that “[t]he power to regulate commerce does not include the power to compel individuals to engage in commerce,” because (1) the “constitutional text and precedent are clear that the power to regulate commerce does not include the power to compel commerce,” and (2) “Congress has never before attempted to use the Commerce Clause to compel private commercial activity.”

Second, amici argue that “[t]he power to regulate commerce does not authorize the lifelong regulation of every citizen on the ground that most will, at some point, engage in commerce in the future.” In support, amici write that (1) “[i]t is not inevitable that everyone will purchase health insurance or consume health care services,” (2) that “[e]xercising regulatory authority over everyone on the theory that most people will eventually engage in an activity would impermissible give Congress an unbounded police power,” and (3) that “‘[c]ost-shifting’ is neither unique to the health care context nor a basis for departing from fundamental constitutional precepts.”

Third, relying largely on Comstock, amici argue that the individual mandate is “not a necessary and proper means of executing the Commerce Power.”

Finally, amici argue that the individual mandate “is not a valid exercise of Congress’s Taxing Power.”

Steven J. Willis:

Professor Willis makes the same arguments that he made in his amicus brief in TMLC v. Obama. You can view our summary of that brief here.