Dep’t of Health and Human Services v. Florida (NFIB v. Sebelius)

Amici Brief in Dep’t of Health and Human Services v. Florida (a.k.a. NFIB v. Sebelius)
Timothy Sandefur (Pacific Legal Foundation)
Robert A. Levy, Ilya Shapiro and Anastasia Killian (Cato Institute)

Filed: February 13, 2012 (U.S. Supreme Court)

Can a limited government to whom a free people have delegated only certain enumerated powers commandeer that people into purchasing a product from a private business pursuant to its power to pass laws “necessary and proper for carrying into execution” the authority to “regulate Commerce . . . among the several States”?

WyLiberty joined this brief by our friends at Pacific Legal Foundation and the Cato Institute, along with 13 other organizations and 333 state legislators. It argues against Obamacare’s individual mandate, the requirement that most Americans purchase qualifying health insurance or pay a yearly penalty beginning in 2014. This is largely considered the lynchpin of the entire program: Obamacare expands insurance coverage mandates, sets arbitrary price controls, and attempts to magically make this cost-effective by forcing everyone to purchase the product. Although the other requirements could remain in place if the individual mandate is ruled severable from the rest of the Act, politically Obamacare would be a dead letter.

The brief explains that the Commerce Clause of the Constitution, Congress’s power “[t]o regulate Commerce . . . among the several States” (Article I, Section 8, Clause 3), cannot force individuals into performing the activity that influences the commerce among the states. To do so would make Congress’s power practically limitless, and would void the Tenth Amendment, which states “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or the people.” (Emphasis added.) Furthermore, the brief counters the feds’ claim that Congress’s power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” (Article I, Section 8, Clause 18) expands the Commerce power to a borderless length, because once again this contradicts the very federalist structure of the Constitution.

The Supreme Court heard oral arguments in the case on March 26, 27, and 28 (part 1, part 2), 2012.

On June 28, 2012, The Supreme Court ruled that Obamacare’s individual mandate could not be upheld under the commerce power, largely agreeing with this brief.  However, to the surprise of most, the Court upheld the mandate as a tax.  The Court also ruled that Obamacare’s Medicaid expansion provisions could not be forced upon states by threatening prior Medicaid funding.  The ruling is available here

Download the brief here.

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