Thursday, July 28, 2011
The Thomas More Law Center this week asked the Supreme Court to review the Sixth Circuit's ruling last month upholding the individual health insurance mandate in the Affordable Care Act against its constitutional challenge.
The Sixth Circuit ruled last month in Thomas More Law Center v. Obama that the individual health insurance mandate in the Affordable Care Act was within Congress's Commerce Clause authority and not otherwise prohibited by the Constitution.
Thomas More Law Center's petition for writ of certiorari raises familiar arguments, including this: Congress can only regulate "commerce"; "commerce" means action (not inaction); and therefore the individual mandate, which regulates inaction, exceeds Congress's Commerce Clause authority.
Two points in the petition are worth note:
- Thomas More Law Center takes direct aim at both Wickard v. Filburn and Gonzales v. Raich, arguing that they are "vexatious"--i.e., out of step with U.S. v. Lopez and U.S. v. Morrison (presumably the Court's real jurisprudence on the Commerce Clause). It then backs off, though, arguing that Gonzales v. Raich makes sense of the "vexatious" duo by clarifying for us that "commerce" means "activity." (The rest of the argument then follows.) It looks like Thomas More Law Center is trying to put Wickard v. Filburn and Gonzales v. Raich in play.
- Thomas More Law Center includes a footnote with a lengthy quote from the Court's recent ruling in Bond v. U.S., the OT 10 case in which the Court ruled that an individual has standing to raise a Tenth Amendment defense. The quote focuses on the connection between federalism and freedom.
The gist of the petition, however, and the core reason for granting cert. can be reduced to this one liner, from Paragraph 1 of the petition:
Review is necessary to establish a meaningful limitation on congressional power under the Commerce Clause. . . .