POLICY FOUNDATION JOINS LEGAL CHALLENGE
TO NATIONALIZED MEDICAL INSURANCE
(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.