RGA Public Policy Committee Files Amicus Brief in Supreme Court Case Challenging Obamacare

The Republican Governors Association policy arm, the Republican Governors Public Policy Committee, filed an amicus brief today with the United States Supreme Court arguing against the constitutionality of the Patient Protection and Affordable Care Act. The brief was filed through Virginia Attorney General Ken Cuccinelli and the Commonwealth of Virginia.

The filing marks the first time that the Republican Governors Public Policy Committee has ever submitted an amicus brief to the Supreme Court.

“While the amicus focuses on the individual mandate, this case is about far more than just that component,” said RGA Chairman Bob McDonnell. “The Obama administration’s healthcare takeover grants sweeping authority to the federal bureaucracy to dictate to individuals, churches, charities, hospitals, schools, businesses and states how they must operate. This is the opposite of the vision of America set forth by our nation’s founders.”

“At its core, this case is about the future of America, and whether we maintain our identity as a federal republic, or creep ever closer to a centralized government in which all the power flows out of Washington,” McDonnell concluded.

The full brief can be found by clicking HERE, and a summary of its arguments is below:


I.          THE PRESUMPTION OF CONSTITUTIONALITY ATTACHING TO PPACA IS WEAK OWING TO THE PARLIAMENTARY PROCESS EMPLOYED IN ITS ENACTMENT.  There is doctrinal and philosophical support for such a presumption resting upon notions of separation of powers, particularly where it appears PPACA was not passed through any process resembling regular order.  The United States Senate passed PPACA late on Christmas Eve 2009 as a floor substitute on a straight party line vote.  The legislative vehicle was a House tax bill chosen to satisfy the Originating Clause for the taxes in PPACA.   PPACA passed the Senate on cloture with considerable minority protest. To the extent that a presumption of constitutionality arises from regular order and a hard look by Congress at the limits of its own power, those conditions are simply not present.

II.        THE FACT THAT CONGRESS HERETOFORE HAS NEVER CLAIMED THE POWER TO REQUIRE A CITIZEN TO PURCHASE A GOOD OR SERVICE FROM ANOTHER CITIZEN TENDS TO NEGATE THE EXISTENCE OF THAT POWER.  In the case of PPACA, the lack of historical precedent was well known to Congress before it acted.  At the heart of PPACA is § 1501, which generally requires American citizens to purchase a good or service from other citizens, namely, a health insurance policy.  When the Senate Finance Committee asked the Congressional Research Service whether a mandate supported by a penalty would be constitutional, the response was equivocal:  “Whether such a requirement would be constitutional under the Commerce Clause is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or a service.”


A.        The Mandate and Penalty are Not Supported by the Text of the Commerce Clause.  Noah Webster in 1828 defined commerce as “an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals, either by barter, or by purchase and sale; trade; traffick.”  This is commerce.  Its hallmarks are spontaneity and voluntary activity; not a command to buy something.  The claim that commerce means not commercial activity but mere passivity is violently discordant with any normal use of the word commerce at the founding or at any subsequent time.

B.        The Historical Context in which the Commerce Clause was Drafted Makes it Highly Unlikely that it Included a Power to Command a Citizen to Purchase Goods or Services From Another Citizen.  The founding generation would have regarded as preposterous any suggestion that Great Britain could have solved its colonial problems by commanding Americans to purchase tea under the generally conceded power of parliament to regulate commerce.

C.        There is No Tradition of Using the Commerce Clause to Require a Citizen to Purchase Goods or Services from Another Citizen.  Because this regime viewed the regulation even of economic activity as illegitimate unless that activity harmed or threatened harm to someone else, Lochner v. New York, 198 U.S. 45 (1905), it is inconceivable that the Commerce Clause prior to 1938 would have been deemed to validly reach inactivity.  The question thus becomes, has the Supreme Court decided any case in the post-Lochner era that has extended the Commerce Clause far enough to cover the mandate and penalty?

D.        The Mandate and Penalty are Outside the Existing Outer Limits of the Commerce Clause and Associated Necessary and Proper Clause as Measured by Supreme Court Precedent. “[E]ven if [an] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.'”  Wickard, 317 U.S.  at 125 (emphasis added).  Wickard marks the affirmative outer limits of the Commerce Clause.

Since Wickard, the Supreme Court has proceeded no further than to hold that Congress can regulate three things under the Commerce Clause: (1) “use of the channels of interstate commerce” (2) “the instrumentalities of interstate commerce,” and (3) “activities that substantially affect interstate commerce.”  U.S. v. Lopez, 514 U.S. at 558-59.  “[T]he Federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far.”  Id. at 578.

None of this is changed by an appeal to the Necessary and Proper Clause.  This Court elsewhere has emphatically held that the Necessary and Proper Clause is limited by general principles of federalism independent of any direct prohibition.  Alden v. Maine, 527 U.S. 706 (1999) (“When a ‘Law . . . for carrying into Execution’ the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions . . . it is not a ‘Law . . . proper for carrying into Execution the Commerce Clause,’ and is thus, in the words of The Federalist, ‘merely [an] act of usurpation’ which ‘deserves to be treated as such.'”) (citing Printz, 521 U.S. at 923-24).  It simply does not matter how “necessary” the mandate and penalty might be to the congressional scheme if the end being pursued is improper under the Necessary and Proper Clause.