Saturday, November 20, 2010
Thirty-three Republican Senators filed an amicus brief in the Northern District of Florida case challenging federal health care reform. (We posted yesterday that state lawmakers filed their own amicus supporting reform.)
The Republicans' brief collects and restates the several well known arguments that Congress lacked authority to enact the individual health insurance mandate under the Commerce Clause. Thus the brief argues that (1) not getting health insurance isn't commerce and therefore isn't subject to Commerce Clause regulation, (2) at no time in our history has Congress required a "passive" person to purchase something under its Commerce Clause authority (and courts have never upheld this kind of exercise), (3) the government's theory would result in an unbridled Commerce Clause that would intrude into areas reserved for the states, vastly expand Congress's authority, and upset the delicate balance between federal enumerated powers and state police powers.
These are familiar arguments. But two points in the brief caught my attention. First, the Republicans argue that Congress didn't even find that not buying insurance substantially affects interstate commerce. Instead, they argue, Congress found only that requiring the purchase of health insurance would substantially affect interstate commerce. They argue that the Court requires Congress to find that the action regulated--and not the regulation itself--substantially affects interstate commerce, and therefore even Congress didn't find facts sufficient to support the exercise of its Commerce Clause authority in this way.
They also argue that while Congress has required "passive" individuals to do something under other Article I authorities (e.g., the authority to raise and support armies), it has never done so under the Commerce Clause. They don't explain why this matters--why the principle that Congress can require action under one Article I authority doesn't transfer to other Article I authorities--except to say that authority here would lead to a limitless Commerce Clause.