Author: Timothy Sandefur
The Pacific Legal Foundation filed this brief today in the U.S. Supreme Court urging it to take up the constitutional challenge to the Individual Mandate in reviewing the Sixth Circuit Court of Appeals’ decision in Thomas More Law Ctr. v. Obama. We argue that the Court should take the case not only to consider the Commerce Clause issue, but also to consider the Necessary and Proper Clause, and specifically to address whether Congress can regulate non-economic, non-interstate activity whenever it claims that doing so is necessary for the success of some national legislative scheme.
This is a critical question, because in the Lopez and Morrison cases, the Court said that Congress can’t simply add up the economic consequences of non-economic activities and call that “interstate commerce”—yet in the Raich case, it said that Congress can regulate non-economic, local activities whenever doing so is “essential” to the success of the laws it passes. The question remains, however, how courts should interpret that word “essential.” Does Congress just get to declare something “essential” without serious judicial oversight? If so, then as the Eleventh Circuit said in its recent Obamacare decision, “essential” would just become a “magic word” that Congress could use to justify doing anything it wants—in violation of what the Supreme Court itself has called a “first principle” of our Constitution: that Congress only has those powers listed in the Constitution.
This is the eighth brief that PLF has filed in the Obamacare cases. You can find the whole list of them here.