No. 11-398444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States____________________

DEPT. OF HEALTH AND HUMAN SERVICES, ET AL.,Petitioners,

v.STATE OF FLORIDA, ET AL., Respondents.

____________________On Writ of Certiorari

to the United States Court of Appealsfor the Eleventh Circuit____________________

Brief Amicus Curiae of Virginia Delegate BobMarshall, Virginia Senator Dick Black, Oklahoma

Representative Charles Key, Institute on theConstitution, U.S. Justice Foundation, Gun OwnersFoundation, The Lincoln Institute for Research andEducation, The United States Constitutional Rights

Legal Defense Fund, Inc., Conservative LegalDefense and Education Fund, Policy Analysis

Center, Downsize DC Foundation, Gun Owners ofAmerica, Inc., The Liberty Committee, PublicAdvocate of the United States, American Life

League, Inc., and DownsizeDC.org in Support ofRespondents (Minimum Coverage Provision)

____________________GARY G. KREEP WILLIAM J. OLSON*U.S. JUSTICE FOUNDATION HERBERT W. TITUS

932 D Street, Suite 2 JOHN S. MILES

Ramona, CA 92065 JEREMIAH L. MORGAN

(760) 788-6624 WILLIAM J. OLSON, P.C.Counsel for USJF 370 Maple Avenue West

Attorney for U.S. Justice Suite 4Foundation Vienna, VA 22180-5615

(703) 356-5070*Counsel of Record wjo@mindspring.comFebruary 13, 2012 Attorneys for Amici Curiae444444444444444444444444444444444444444444

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I. CONGRESS EXCEEDED ITS COMMERCECLAUSE POWERS IN ENACTING PPACA, YETFOUND SUBSTANTIAL SUPPORT FROMCERTAIN OF THIS COURT’S DECISIONS,NECESSITATING THEIR REEXAMINATION.

A. This Court’s Commerce ClauseJurisprudence Has Eviscerated TextualLimits on Congressional Power . . . . . . . . . . 5

B. The Court Has Demonstrated aWillingness to Re-examine ItsConstitutional Jurisprudence WhenNecessary . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. The Court’s United States v. Darby andWickard v. Filburn Decisions WerePoliticized and Should Be Re-Examined . . 11

II. THE CONSTITUTIONALITY OF PPACA SHOULDBE DECIDED BY THE TEXT OF THECONSTITUTION, NOT BY CASE PRECEDENT . 14

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III. THE INDIVIDUAL MANDATE IS NOT AN EXERCISEOF POWER TO REGULATE COMMERCE, MUCHLESS INTERSTATE COMMERCE . . . . . . . . . . . 18

IV. THE INDIVIDUAL MANDATE IS NOT AN EXERCISEOF POWER TO MAKE ALL LAWS NECESSARY ANDPROPER TO CARRY INTO EXECUTION THECOMMERCE POWER . . . . . . . . . . . . . . . . . . . 23

A. The Government’s Claim that PPACA Is an“Economic Regulation” of “EconomicConduct” Is False . . . . . . . . . . . . . . . . . . . . 24

B. The Commerce Clause Does Not Vest inCongress Any Power to Adopt a NationalHealth Care Policy . . . . . . . . . . . . . . . . . . . 29

C. The Means Chosen by Congress toEstablish Its National Health CareServices System Was Not an Exercise ofLegislative Power . . . . . . . . . . . . . . . . . . . . 32

VI. PPACA IS AN IMMORAL MANDATE UNWORTHYOF A FREE PEOPLE . . . . . . . . . . . . . . . . . . . . 37

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

iii

TABLE OF AUTHORITIESPage

HOLY BIBLEExodus 18:16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Matthew 4:1-11 . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Luke 10:25-36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

U.S. CONSTITUTIONArticle I, Section 1 . . . . . . . . . . . . . . . . . . . . . . 17, 33Article I, Section 8, Clause 1 . . . . . . . . . . . . . . . . . 15Article I, Section 8, Clause 3 . . . . . . . . . . . . 3, passimArticle I, Section 8, Clause 18 . . . . . . . . . . . 4, passimArticle VI, Clause 2 . . . . . . . . . . . . . . . . . . 14, 16, 20Amendment II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Amendment IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Amendment X . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

STATUTESPatient Protection and Affordable Care Act,

Pub. L. 111-148 . . . . . . . . . . . . . . . . . . . 2, passim26 U.S.C. § 5000A . . . . . . . . . . . . . . . . . . . . . . . . . 2542 U.S.C. § 18091(a)(2)(A) . . . . . . . . . . . . . . . . . . 25

CASESBurnet v. Coronado Oil & Gas Co., 285 U.S. 393

(1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Carter v. Carter Coal Co., 298 U.S. 238 (1936) . . 11Champion v. Ames, 188 U.S. 321 (1902) . . . . 29, 30Cruzan v. Director, Missouri Dept. of Health, 497

U.S. 261 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . 39District of Columbia v. Heller, 554 U.S. 570

(2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449

(2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

iv

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1(1824) . . . . . . . . . . . . . . . . . . . . . . . . . . 12, passim

Gonzales v. Raich, 545 U.S. 1 (2005) . . . . . . 6, 7, 32Holmes v. Jennison, 39 U.S. (14 Peters) 540

(1847) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Marbury v. Madison, 5 U.S. (1 Cranch.) 137

(1803) . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 21McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

(1819) . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31, 37National Labor Relations Board v. Jones &

Laughlin Steel Corp., 301 U.S. 1 (1937) . . . . . 11Osborn v. Bank of the United States, 22 U.S. (9

Wheat.) 738 (1824) . . . . . . . . . . . . . . . . . . . . . . 17Schecter Poultry Corp. v. United States, 295 U.S.

495 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11United States v. Darby, 312 U.S. 100

(1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, passimUnited States v. Jones, 2012 U.S. Lexis 1063

(Jan. 23, 2012) . . . . . . . . . . . . . . . . . . . . . . . 9, 10United States v. Lopez, 514 U.S. 549 (1995) . 16, 21United States v. Southeastern Underwriters

Association, 322 U.S. 533 (1944) . . . . . 18, 19, 20Wickard v. Filburn, 317 U.S. 111 (1942) . . 3, passim

MISCELLANEOUSAlternative Medicine: Expanding Medical Horizons

(1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26W. Blackstone, Commentaries on the Laws of

England (U. of Chicago, facsimile ed. 1765) . . 33H. Clark, Biblical Law (Metro Press, Portland:

1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28T. Cooley, A Treatise on Constitutional

Limitations (5th ed. Little, Brown: 1883) . . . . . 28

v

D. Currie, The Constitution in Congress: TheFederalist Period, 1978-1801 (1999) . . . . . . . . . 5

D. Harrison, M.D., Family Research CouncilBlog (Sept. 28, 2011) . . . . . . . . . . . . . . . . . . . . 38

E.D. Hirsch, Validity in Interpretation (Yale Univ. Press, 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

D. Hogberg, “ObamaCare Rule May Bar HSAs,Low-Cost Health Plans Investors,”Investors.com (Dec. 7, 2011) . . . . . . . . . . . . . . 34

A. Kozinski, “Introduction to Volume Nineteen,” 19 HARV. J. L & PUB. POL. 1 (1995) . . . . . . . . . . 6

R. Pear, “Obama Reaffirms Insurers MustCover Contraception,” The New York Times (Jan. 20, 2012) . . . . . . . . . . . . . . . . . . . . . . 37, 38

F.D. Roosevelt, Fireside Chat on Reorganization of the Judiciary (Mar. 9, 1937) . . . . . . . . . . . . 11

A. Roy, “How ObamaCare May Disrupt Your Health Plan,” Forbes.com (Sept. 29, 2010) . . . 34

J. Shesol, Supreme Power: Franklin Roosevelt vs.the Supreme Court (Norton, 2010) . . . . . . . . . 12

N. Webster’s 1828 Dictionary . . . . . . . . . . 22, 30, 33Webster’s 1964 Third New International

Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35http://www.breitbart.tv/nancy-pelosi-we-need-to-

pass-health-care-bill-to-find-out-whats-in-it/ . . 5http://cnsnews.com/news/article/when-asked-

where-constitution-authorizes-congress-order-Americans-buy-health-insurance . . . . . . 6

http://www.medicare.com/services-and-procedures/alternative-therapies.html?ht= . . . 18

“New Regulations Threaten Insurance for CAMPatients,” http://www.anh-usa.org/new-regulations-threaten-insurance-for-cam-patients/print/ . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

INTEREST OF THE AMICI CURIAE1

Delegate Bob Marshall is a senior member of theVirginia House of Delegates, and was the Chief Patronof the “Virginia Health Care Freedom Act”2 whichundergirds Commonwealth of Virginia ex rel. KennethT. Cuccinelli, II v. Kathleen Sebelius, discussed infra. Senator Dick Black is a member of the VirginiaState Senate. Representative Charles Key is amember of the Oklahoma House of Representatives. All have worked against federal usurpation of powersreserved to the states and to the people under theTenth Amendment.

The Institute on the Constitution (“IOTC”) is aneducational organization reconnecting Americans withthe history of the Republic. The U.S. JusticeFoundation (“USJF”), Gun Owners Foundation(“GOF”), The Lincoln Institute for Research andEducation (“Lincoln”), The United StatesConstitutional Rights Legal Defense Fund, Inc.,Conservative Legal Defense and Education Fund(“CLDEF”), American Life League, Inc. (“ALL”),Policy Analysis Center (“PAC”), and Downsize DCFoundation (“DDCF”) are nonprofit educationalorganizations, exempt from federal income tax undersection 501(c)(3) of the Internal Revenue Code (“IRC”).

1 It is hereby certified that the parties filed blanket consents withthe Court, no counsel for a party authored this brief in whole or inpart, and no person other than these amici curiae, their members,or their counsel made a monetary contribution to its preparationor submission.

2 2010 Acts of the Assembly Chapter 818; codified as section 38.2-2430.1:1, Code of Virginia.

2

Gun Owners of America, Inc. (“GOA”), TheLiberty Committee (“TLC”), Public Advocate ofthe United States (“PA”), and DownsizeDC.org(“DDC”) are nonprofit social welfare organizations,exempt from federal income tax under IRC section501(c)(4). Each organization is interested in the properconstruction of state and federal constitutions andstatutes.

Delegate Marshall filed an amicus curiae brief inthe U.S. Court of Appeals for the Fourth Circuit insupport of the challenge to the Patient Protection andAffordable Care Act brought by the Commonwealth ofVirginia — Commonwealth of Virginia ex rel. KennethT. Cuccinelli, II v. Kathleen Sebelius.3 Co-amici wereGOA, GOF, ALL, IOTC, Lincoln, PA, CLDEF, TLC,DDCF, DDC, and PAC. Delegate Marshall filed anamicus curiae brief in support of Virginia’s Petition forWrit of Certiorari before this Court (No. 11-420), whichis pending.4 Co-amici were Senator Black, DDCF,DDC, GOA, GOF, TLC, USJF, CLDEF, and Lincoln.USJF filed an amicus curiae brief in the present casein support of granting certiorari in October 2011, andin the related case of National Federation ofIndependent Business v. Sebelius, No. 11-393, on theissue of severability on January 6, 2012.

3 Brief Amicus Curiae of Virginia Delegate Bob Marshall, et al.,U.S. Court of Appeals, 4th Cir., Nos. 11-1057 and 11-1058 (Apr. 4,2011), http://lawandfreedom.com/site/health/VA_v_Sebelius_Amicus.pdf.

4 Brief Amicus Curiae of Virginia Delegate Bob Marshall, et al. inSupport of Petitioner (Nov. 3, 2011), http://lawandfreedom.com/site/health/VA_v_Sebelius_Amicus_SC.pdf.

3

SUMMARY OF ARGUMENT

The Patient Protection and Affordable Care Act(“PPACA”) is a remarkable law, not just imposingplenary federal control over the private healthinsurance industry and health care practices, but alsoplacing the federal government into that business andpractice. Purporting to be an exercise of Congress’Commerce Clause power, this law goes beyond anyprior Congressional exercise of the Commerce power,mandating that individuals purchase privateinsurance, overriding any religious, moral, or practicalscruples that they may have.

The Government believes that this law is fullyjustified under this Court’s Commerce Clausejurisprudence, particularly relying on United States v.Darby and Wickard v. Filburn. These revolutionarySupreme Court decisions cast aside settledconstitutional doctrine for reasons of politicalexpediency in the wake of President Franklin D.Roosevelt’s threat to pack the Court. The time hascome that they should be re-examined and overturned,lest Congress conclude that it can compel whateverbehavior it believes would make us a more healthyPeople — leading us to a totalitarian state whereeverything not prohibited is mandated.

In conducting its re-examination of its CommerceClause jurisprudence, this Court should return to thetext of the Constitution as “the supreme Law of theLand” giving no deference to its own decisions, ratherexamining the issue afresh. Such an examinationdemonstrates that the individual mandate is not an

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exercise of power to regulate interstate commerce. Theindividual mandate is not regulation of voluntarycommercial intercourse; it is more akin to forcibleeconomic rape.

The government attempts to justify its individualmandate as being a constitutionally permissible meansof regulating interstate commerce, as a law which is a“Necessary and Proper” means to achieve a legitimateend. However, the Government admits the purpose ofPPACA is to “expand access to health care” — makingit a social welfare program designed to achieve a moralobjective — a power not constitutionally authorized. The Commerce Clause does not empower Congress toadopt a national health care policy. Under theGovernment’s theory, the combination of theCommerce Clause and the Necessary and ProperClause becomes a pretext to confer on Congress ageneral police power which it was never intended tohave.

PPACA is designed to put the government into thehealth care insurance business. The ramifications ofthis coercive measure are just now being felt withmandates for abortifacient contraceptives, convertingthe federal government into the master over the bodiesand the morals of a heretofore sovereign people.

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ARGUMENT

I. CONGRESS EXCEEDED ITS COMMERCECLAUSE POWERS IN ENACTING PPACA,YET FOUND SUBSTANTIAL SUPPORTFROM CERTAIN OF THIS COURT’SDECISIONS, NECESSITATING THEIRREEXAMINATION.

A. This Court’s Commerce ClauseJurisprudence Has Eviscerated TextualLimits on Congressional Power.

There was a time that Members of Congress tooktheir oath to the Constitution seriously, becomingstudents of the Constitution. Often, argument oncomplex constitutional issues in the halls of Congressrivaled the work of advocates before the SupremeCourt.5 However, during Congressional considerationof the Patient Protection and Affordable Care Act(“PPACA” or “the Act”), few, if any, Members ofCongress even claimed to have read H.R. 3590 — a1,928 page bill — before voting on it.6

5 See generally David Currie, The Constitution in Congress: TheFederalist Period, 1978-1801 (1999) (“It was in the legislative andexecutive branches, not in the courts, that the originalunderstanding of the Constitution was forged.... [T]he quality ofargument remained astoundingly high....” p. 296).

6 Speaker Pelosi said, “We have to pass the bill so you can find outwhat is in it....” http://www.breitbart.tv/nancy-pelosi-we-need-to-pass-health-care-bill-to-find-out-whats-in-it/. AmicusDownsizeDC.org has drafted a bill which would require membersof Congress to read bills before voting on them, but thus far has

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When then-Speaker of the House Nancy Pelosi wasasked about the constitutional authority of Congress topass PPACA, she replied: “Are you serious? Are youserious?”7 While many viewed that statement toindicate a lack of regard for constitutional limitationsgenerally, the Speaker’s reply bespoke the commonassumption that Congress’ powers under theCommerce Clause are virtually unlimited. That viewwould have ample support in the decisions of thisCourt. Indeed, Chief Judge Alex Kozinski of the U.S.Court of Appeals for the Ninth Circuit characterizedmodern Commerce Clause decisions as follows:

[Y]ou wonder why anyone would make themistake of calling it the Commerce Clauseinstead of the “Hey, you -can-do-whatever-you-feel-like Clause?” [A. Kozinski, “Introductionto Volume Nineteen,” 19 HARV. J.L. & PUB.POL’Y. 1 (1995).]

Ten years later, in Gonzales v. Raich, 545 U.S. 1(2005), with respect to federal regulation of marijuanathat had never been sold, had never crossed state lines,and had no effect on the national market, JusticeThomas observed in dissent:

If Congress can regulate this under the

not found a single Congressman willing to introduce it. https://secure.downsizedc.org/etp/rtba/.

7 http://cnsnews.com/news/article/when-asked-where-constitution-authorizes-congress-order-americans-buy-health-insurance.

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Commerce Clause, then it can regulatevirtually anything ... quilting bees, clothesdrives, and potluck suppers throughout the 50States. [Id., 545 U.S. at 57-58, 69.]

B. The Court Has Demonstrated aWil l ingness to Re-examine ItsConstitutional Jurisprudence WhenNecessary.

The Government’s brief adopts this virtuallyunlimited view of the Commerce Clause, repeatedlyinvoking two of this Court’s most expansive statementsof the commerce power — United States v. Darby, 312U.S. 100 (1941) and Wickard v. Filburn, 317 U.S. 111(1942) (five times each). In contrast, after quoting thetext of the Commerce Clause in the first sentence of itsArgument, the Government abandons any discussionof the Clause itself. Pet. Br., p. 21. Likewise,Respondents also appear content, or resigned, to arguethe instant case in accordance with prior decisions ofthis Court.8

The principle of stare decisis should not impede aregular return to the constitutional text — particularlyin a case such as this which has generated so muchpublic opposition and controversy. As Justice Brandeisexplained:

Stare decisis is usually the wise policy.... [b]ut

8 See Brief for State Respondents on the MinimumCoverage Provision, pp. 16-17, 19; Brief for Private Respondents,p. 15.

8

in cases involving the Federal Constitution,where correction through legislative action ispractically impossible, this Court has oftenoverruled its earlier decisions.... [Burnet v.Coronado Oil & Gas Co., 285 U.S. 393, 406-407(1932) (Brandeis, J., dissenting).]

On many occasions, however, the Court addressesthe constitutional text secondarily, if at all. In a recentcase, Chief Justice Roberts engaged in some Court-deprecating humor, in stating near the end of theopinion: “Yet, as is often the case in this Court’s FirstAmendment opinions, we have gotten this far in theanalysis without quoting the Amendment itself.... TheFramers’ actual words put these cases in properperspective.” FEC v. Wisconsin Right to Life, Inc., 551U.S. 449, 480-82 (2007).

These amici urge this Court in this historic case toopt to re-examine its Commerce Clause jurisprudenceunder the actual text of the Commerce Clause. Indeed,on two important recent occasions in which these amicihave been involved, this Court has demonstrated itswillingness to go beyond an inquiry into decisional“law.”

In District of Columbia v. Heller, 554 U.S. 570(2008),9 after stating the facts and issue presented,

9 On February 11, 2008, amicus curiae herein Gun Owners ofAmerica, Inc., and a number of other organizations filed anamicus brief on the merits in this Court in the Heller case. http://lawandfreedom.com/site/constitutional/DCvHellerAmicus.pdf.

9

Justice Scalia’s opinion for the Court began with thetext of the Second Amendment. The Court thenlaboriously parsed the Amendment in a search formeaning, examining historical documents and legalscholarship. Only when that search was complete didthe Court examine “how the Second Amendment wasinterpreted from immediately after its ratification....” Id. at 605. In the end, the Court’s decision was guidedby the constitutional text, not modern “case law”:

[T]he enshrinement of constitutional rightsnecessarily takes certain policy choices off thetable.... Undoubtedly some think that theSecond Amendment is outmoded in a societywhere our standing army is the pride of ourNation, where well-trained police forcesprovide personal security, and where gunviolence is a serious problem. That is perhapsdebatable, but what is not debatable is that itis not the role of this Court to pronounce theSecond Amendment extinct. [Id., p. 636.]

In United States v. Jones, __ U.S. __, 2012 U.S.Lexis 1063 (Jan. 23, 2012),10 the Government

10 On May 16, 2011, amicus curiae herein Gun Owners of Americaand other organizations filed the only amicus brief at the Petitionstage in the Jones case, urging this Court to take this case anduse it to re-examine the original property-based text and purposeof the Fourth Amendment. Granting certiorari, this Court addedthe property issue for parties to address: “Whether thegovernment violated respondent’s Fourth Amendment rights byinstalling the GPS tracking device on his vehicle without a validw a r r a n t a n d w i t h o u t h i s c o n s e n t . ” http://www.supremecourt.gov/Search.aspx?FileName=/docketfil

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contended that the attachment of a GPS device toJones’ Jeep Cherokee was neither a search nor aseizure, because in this technological age, Jones had noreasonable expectation of privacy from theGovernment tracking him on a public roadway. Opening with a citation to a 1765 English case, Entickv. Carrington, a majority of this Court stated:

The Government physically occupied privateproperty for the purpose of obtaininginformation. We have no doubt that such aphysical intrusion would have been considereda “search” within the meaning of the FourthAmendment when it was adopted. [Jones, p.*8.]

Then, in a remarkably frank admission as to how farfrom the text the Court has strayed, Justice Scaliaexplained that:

our Fourth Amendment jurisprudence was tiedto common-law trespass, at least until thelatter half of the 20th century [but] [o]ur latercases … have deviated from that exclusivelyproperty-based approach [in favor of a moreflexible, modernist analysis based upon thecourt’s perceptions of a] “reasonableexpectation of privacy.” [Id., pp. *9-*10.]

es/10-1259.htm. On October 3, 2011, amici herein Gun Owners ofAmerica was joined by another, ideologically diverse group infiling an amicus curiae brief addressing the original propertybases of the Fourth Amendment. http://lawandfreedom.com/site/constitutional/USvJones Amicus_Merits.pdf.

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It is this type of candid and transparent analysiswhich gives the Court credibility with the bar and thepublic, and which is needed now with respect to theCommerce Clause.

C. The Court’s United States v. Darby andWickard v. Filburn Decisions WerePoliticized and Should Be Re-Examined.

It is no secret that this Court’s Commerce Clausejurisprudence undertook a sharp turn after PresidentFranklin Roosevelt’s proposal of the JudicialProcedures Reform Bill of 1937 — the court-packingplan. The Court’s decisions that many of thePresident’s early New Deal initiatives wereunconstitutional evoked a highly political attack on theCourt. While these cases involved a variety ofconstitutional provisions, the Court’s decisions inSchecter Poultry Corp. v. United States, 295 U.S. 495(1935) invalidating the National Industrial RecoveryAct, and in Carter v. Carter Coal Co., 298 U.S. 238(1936), invalidating the Bituminous Coal ConservationAct, were Commerce Clause cases.

President Roosevelt’s March 1937 Fireside chat11

and his proposal to add up to six additional justices tothe U.S. Supreme Court was closely followed by JudgeOwen Robert’s April 1937 Commerce Clause reversalin National Labor Relations Board v. Jones & LaughlinSteel Corp., 301 U.S. 1 (1937), rejecting well-established precedents to uphold the constitutionality

11 See, e.g., F.D. Roosevelt, Fireside Chat on Reorganization of theJudiciary (Mar. 9, 1937), http://www.hpol.org/fdr/chat/.

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of the National Labor Relations Act, signaling theCourt’s lack of will for a political showdown.

By the time some of the Court’s most extremeCommerce Clause cases — Darby and Wickard — weredecided in 1941 and 1942, respectively, the tide hadfirmly turned. The effect of the court-packing plan onSupreme Court jurisprudence has been the grist forlaw review articles and books.12 There are manyreasons to believe that, in cases like Darby andWickard, political expediency overrode constitutionalfidelity, justifying re-examination of these tworevolutionary Commerce Clause cases.

In United States v. Darby, the Court found that theCommerce Clause vested in Congress the plenarypower to regulate interstate commerce for any purpose. Id., 312 U.S. 100, 115-16 (1941). Purporting to relyupon Chief Justice Marshall’s opinion in Gibbons v.Ogden, 22 U.S. (9 Wheat) 1 (1824), the Darby Courtstated that the “purpose of a regulation of interstatecommerce are matters for legislative judgment uponthe exercise of which the Constitution places norestriction and over which the courts are given nocontrol.” 312 U.S. at 115. In support of thisconstitutional proposition, the Darby Court quoted theGibbons statement that the power of Congress overinterstate commerce “is complete in itself, may beexercised to its utmost extent, and acknowledges nolimitations other than are prescribed in theconstitution.” Gibbons, 22 U.S. at 196.

12 See e.g., J. Shesol, Supreme Power: Franklin Roosevelt vs. theSupreme Court, Norton (2010).

13

Omitted entirely from the Darby opinion was ChiefJustice Marshall’s follow-up statement that “thesovereignty of Congress, though limited to specifiedobjects, is plenary as to those objects.” Gibbons, 22U.S. at 197 (emphasis added). Contrary to the DarbyCourt’s misinterpretation of Gibbons, the trueMarshall legacy is that the Commerce Clause does notvest in Congress complete discretion as to thepermissible “object” or “end” of the exercise of powerover the subject of interstate commerce. Rather, thepermissible “object” or “end” of the exercise of thatpower, or any other enumerated power, wasdetermined by the constitutional text.

Wickard v. Filburn is considered by many to beamong the least principled Supreme Court cases. Although the Constitution grants Congress the powerto regulate “commerce ... among the several States...”the Court allowed the Department of Agriculture thepower to regulate home grown and consumed wheatthat never traveled in interstate commerce. The Courtreached its decision based on a completely utilitariananalysis:

This record leaves us in no doubt thatCongress may properly have considered thatwheat consumed on the farm where grown, ifwholly outside the scheme of regulation, wouldhave a substantial effect in defeating andobstructing its purpose to stimulate tradetherein at increased prices. [Id., 317 U.S. at128-29.]

The Court did not even tip its cap to the constitutional

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text, removing altogether the last textual restraint onthe Commerce power.

The day has come for these relics of a politicizedera to be reconsidered and overturned.

II. THE CONSTITUTIONALITY OF PPACASHOULD BE DECIDED BY THE TEXT OFTHE CONSTITUTION, NOT BY CASEPRECEDENT.

Bound by this Court’s case precedents applying theCommerce Clause and the Necessary and ProperClause, the court of appeals measured theconstitutionality of the individual mandate in PPACAsolely by “ existing Commerce Clause doctrines that [it]as an inferior Article III court, must apply.” Florida v.Department of Health and Human Services (“Florida”),648 F.3d 1235, 1269 (11th Cir. 2011). The question inthis Court, however, is not whether PPACA complieswith Supreme Court “doctrine,” but, as stated by theGovernment in its opening brief, “whether theminimum coverage provision is a valid exercise ofCongress’s powers under Article I of the Constitution.” Pet. Br., p. 1. After all, it is “this Constitution, and theLaws of the United States ... made in Pursuancethereof [that is] the supreme Law of the Land,”13 notthis Court’s opinions and Congress’ laws made inpursuance of those opinions. As Chief Justice JohnMarshall recognized in Marbury v. Madison, “the

13 United States Constitution, Article VI, Clause 2.

15

framers of the constitution contemplated thatinstrument, as a rule for the government of courts, aswell as of the legislature.” Id., 5 U.S. (1 Cranch.) 137,179-80 (1803). Otherwise, as Chief Justice Marshallobserved, why does the Constitution “direct the judgesto take an oath to support” the Constitution, and“[w]hy does a judge swear to discharge his dutiesagreeably to the Constitution of the United States ifthat Constitution forms no rule for his government”? Id., 5 U.S. at 189.

This first principle upon which judicial review restsis especially important in this case. As the court ofappeals below observed, the individual mandate, thevortex of this case, is “so unprecedented ... that thegovernment has been unable, either in its briefs or atoral argument, to point this Court to Supreme Courtprecedent that addresses [its] constitutionality.” Florida, 648 F.3d at 1288. Indeed, the court of appealsacknowledged that its own “independent review [didnot] reveal such a precedent.” Id. Rather, that reviewyielded additional confirmation from both theCongressional Research Service and the CongressionalBudget Office, each of which found it to be a completely“novel” proposition that Congress has the power to“require[] people to buy any good or service as acondition of lawful residence in the United States.” Id.

In its opening brief, however, the Governmentattempts to obscure the unprecedented nature of theindividual mandate with an avalanche of wordsdistilled from this Court’s Commerce, Necessary andProper, and Tax Clause cases. See Pet. Br., p. 17 etseq. The Government’s lawyers insult the intelligence

16

of this Court when they describe this case as run-of-the-mill, “well within the full scope of [Congress’s]authority” (Pet. Br., p. 26). Not once does theGovernment pause to examine the mandate under themicroscope of the Constitution. There is a simplereason for this. As Justice Thomas observed in hisconcurring opinion in United States v. Lopez, 514 U.S.549 (1995), the “substantial effect” test (employed bythe Government in its opening brief) “taken to itslogical extreme, would give Congress a ‘police power’over all aspects of American life.” Id. at 584 (Thomas,J., concurring) (emphasis added). And, as JusticeThomas concluded, “[a]ny interpretation of theCommerce Clause that even suggests that Congresscould regulate such matters [as marriage, littering, orcruelty to animals] is in need of reexamination.” Id. at585.

An unprecedented legislative measure, such as theindividual mandate, must not be tested solely byprecedent, lest the language of the judicial branch ofGovernment become the operative language of theConstitution, contrary to the Supremacy Clause ofArticle VI. As Chief Justice Marshall stated inMarbury v. Madison, the language of Article VI“confirms and strengthens the principle, supposed to beessential to all written constitutions ... that courts, aswell as other departments, are bound by thatinstrument.” Id., 5 U.S. at 180 (emphasis added). Inshort, Article VI of the Constitution requires judicialopinions to be subordinate to the Constitutional text,not the other way around. It is, therefore, illegitimateto elevate this Court’s opinion above the law as it iswritten in the Constitution. Rather, it is this Court’s

17

duty “to say what the law is” (id., 5 U.S. at 177), not tomake the law say what this Court wills it to be.14

Since a reexamination of the application of thewords of the Commerce Clause and the Necessary andProper Clause as applied to PPACA could not beundertaken below, it must now be performed by thisCourt. If this is not done here, then Article I, Section1, which states that only those “legislative powersherein granted [are] vested in [the] Congress of theUnited States” (emphasis added), will have beendeclared a dead letter by this Court.

14 See Osborn v. Bank of the United States, 22 U.S. (9 Wheat.)738, 866 (1824) (“Judicial power is never exercised for giving effectto the will of the judge,” but “always for the purpose of givingeffect ... to the will of the law.”). See also Exodus 18:16 (“Whenthey have a matter, they come unto me; and I [Moses] judgebetween one and another, and I do make them know the statutesof God and his laws.”).

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III. THE INDIVIDUAL MANDATE IS NOT ANEXERCISE OF POWER TO REGULATECOMMERCE, MUCH LESS INTERSTATECOMMERCE.

In pertinent part, Article I, Section 8, Clause 3,states that “[t]he Congress shall have the Power ... [t]oregulate Commerce ... among the several States.” Ifthe individual mandate is to be justified under thisprovision, the decision of an individual whether or notto purchase a health insurance product must, at thevery least, be “commerce.” According to theGovernment, the decision not to purchase health careinsurance is “commerce” because it is “economicconduct” (Pet. Br., pp. 18-19, 26, 33) or “economicactivity” (Pet. Br., p. 23), or “economic, commercialactivity” (Pet. Br., p. 46). Indeed, the Governmentpoints out that Congress, itself, “expressly found [that]the minimal coverage provision ‘regulates activitythat is commercial and economic in nature: economic and financial decisions about how and whenhealth care is paid for, and when health insurance ispurchased.’” Pet. Br., p. 33. Petitioner’s brief is devoidof any discussion or analysis of the question of whetherthe decision not to purchase health care insurance is“commerce” within the meaning of that term in ArticleI, Section 8, Clause 3. And, of course, theGovernment’s brief assumes, sub silentio, that theoriginal meaning of “commerce” is irrelevant.

However, as Justice Hugo Black acknowledged in1944, “[o]rdinarily courts do not construe words used inthe Constitution so as to give them a meaning morenarrow than one which they had in the common

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parlance of the times in which the Constitutionwas written.” United States v. SoutheasternUnderwriters Association, 322 U.S. 533, 539 (1944)(emphasis added). Indeed, 100 years before JusticeBlack wrote these words, this Court had adopted a ruleof construction that required the Court to unearth theoriginal meaning of the constitutional text:

In expounding the Constitution of the UnitedStates, every word must have its due force, andappropriate meaning; for it is evident from thewhole instrument, that no word wasunnecessarily used, or needlessly added. Themany discussions which have taken place uponthe construction of the Constitution, haveproved the correctness of this proposition.... Every word appears to have been weighed withthe utmost deliberation, and its force and effectto have been fully understood. No word in theinstrument, therefore, can be rejected assuperfluous or unmeaning.... [Holmes v.Jennison, 39 U.S. (14 Peters) 540, 570-71(1847).]

There is, then, no room for the kind of atextualfreelancing engaged in by the Government in its brief. Thus, this Court must not let the Government getaway with citing Southeastern Underwriters tosupport its contention that “Congress understood theeconomic reality that health insurance and health carefinancing are inherently integrated, and it waspermitted to regulate on that basis.” See Pet. Br.,p. 41 (emphasis added). To the contrary, Article I,Section 8, Clause 3 emphatically does not empower

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Congress to define what commerce means, and then toenact the minimum coverage provision pursuant to itsown definition. That would undermine Article VI,which requires Congress to enact laws only in“pursuance” of the Constitution. Thus, unlike theGovernment’s brief, Justice Black’s analysis inSoutheastern Underwriters began with a search for themeaning of commerce in “the dictionaries,encyclopedias, and other books of the period” todetermine whether “trading in insurance,” like tradingin other products and services, constituted “commerce,”as that term was understood by the American people inthe founding era. Southeastern Underwriters, 322U.S. at 539.

The Government’s approach in this case is theantithesis of that employed in SoutheasternUnderwriters. Instead of assessing whether theminimum coverage provision of PPACA fits within theoriginal meaning of “commerce” in Article I, Section 8,Clause 3, the Government addresses instead thequestion whether the “Minimum Coverage Provision”is an integral part of a comprehensive scheme ofeconomic regulation. See Pet. Br., p. 24. Thus, theGovernment would have this Court conform themeaning of “commerce” to fit Congress’s view of“economic realities” instead of determining whetherPPACA’s individual mandate is a subject matter withinthe original meaning of “commerce.” See Pet. Br., pp.24-32. This approach stands the Constitution on itshead, in shameless defiance of the essential nature andpurpose of a written constitution, substituting the willof Congress over the will of the people, violating theprinciple:

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That the people have an original right toestablish, for their future government, suchprinciples as, in their opinion, shall mostconduce to their own happiness, is the basis, onwhich the whole American fabric has beenerected.... The principles, therefore, soestablished, are deemed fundamental. Andas the authority, from which they proceed, issupreme ... they are designed to bepermanent.... The powers of thelegislature are defined, and limited; andthat those limits may not be mistaken, orforgotten, the constitution is written.[Marbury, 5 U.S. at 176 (emphasis added).15]

Applying the well-established rule that themeaning of the words in the Constitution is theordinary one, extant at the time the Constitution waswritten,16 Justice Marshall got it right in Gibbons v.Ogden, stating that “commerce” is “commercialintercourse.” Id., 22 U.S. (9 Wheat.) 1, 189-90 (1824). Or, as elaborated upon by Justice Thomas in his Lopezconcurrence, commerce is the “‘exchange of one thingfor another; interchange of any thing; trade; traffick.’” Lopez, 514 U.S. at 586 (Thomas, J., concurring).

15 The temptation to substitute the Court’s opinions for thewritten Constitution is strong and recurrent. Indeed, it is in thevery nature of mankind to attempt to conform external reality toone’s reason. Such temptation must be resisted no matter whatthe circumstances or cost. See Matthew 4:1-11, especially verses4, 7, and 10 (“It is written”).

16 See, e.g., E.D. Hirsch, Jr., Validity in Interpretation, pp. 5-6,212-213 (Yale Univ. Press: 1967).

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Whether “commerce” is defined as “intercourse,exchange, or interchange,” it connotes “mutuality.” “Interchange” for example, meant “to give and takemutually,” or “to reciprocate.” N. Webster’s 1828Dictionary. Likewise, “exchange” was “the act of givingone thing or commodity for another; barter ... the act ofgiving and receiving reciprocally.” Id. “Intercourse”meant a “connection by reciprocal dealings betweenpersons or nations, either in common affairs andcivilities, in trade, or correspondence by letters.” Id.

In contrast, the individual mandate is obligatoryand coercive, backed by the full force of thegovernment, in the form of a monetary penalty. As theGovernment admits, the individual mandate isdesigned specifically to “internalize” the risks and costsof health care, which it has the temerity to call “classiceconomic regulation of economic conduct.” See Pet. Br.,pp. 19, 34. In fact, the mandate is classic sumptuarylegislation, prohibiting personal spending choiceswhich offend the moral or religious beliefs of Congress. See Pet. Br., pp. 39-40. Thus, the Government’sindividual mandate is not a regulation of commerce; itis a compelled societal duty. Indeed, the individualmandate is not voluntary commercial intercourse; it isforcible economic rape.

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IV. THE INDIVIDUAL MANDATE IS NOT ANEXERCISE OF POWER TO MAKE ALL LAWSNECESSARY AND PROPER TO CARRY INTOEXECUTION THE COMMERCE POWER.

While the Government has erroneously assumedthat the individual mandate is “commerce” within themeaning of Article I, Section 8, Clause 3, it hascorrectly understood that, standing alone, the mandatecannot be sustained as a Constitutional exercise of theCommerce power. See, e.g., Pet. Br., p. 17. Rather, theGovernment contends that the mandate isconstitutional because it is a constitutionallypermissible means of regulating interstate commerce,as vested by Article I, Section 8, Clause 18 in Congress,namely, “to make all Laws which shall be necessaryand proper for carrying into Execution the foregoingPowers....” In short, the Government contends that,because PPACA as a whole is a regulation of interstatecommerce, the individual mandate component is aconstitutional means to reach that constitutional end. See Pet. Br., pp. 17-19. The broad questions before thisCourt, then, are whether PPACA is a Constitutionalexercise of power to regulate interstate commerce, andif so, whether the individual mandate qualifies as a“necessary and proper” means to that end.

As the court of appeals below stated, one must first“know[] what is in the Act,” that is, what the “Act saysand does.” Florida, 648 F. 3d at 1241. In a nutshell,the Government has captured both the purpose of theAct and the means employed by the Act to accomplishthat purpose:

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The Act in general, and the insurance reformsin particular, culminated a nearly century-longnational effort to expand access to healthcare by making affordable healthinsurance more widely available. [Pet. Br.,pp. 12-13 (emphasis added).]

Here, the Government admits that the purpose of theAct is to “expand access to health care,” and the meanschosen is “making affordable health insurance morewidely available.” The specific questions in this case,therefore, are whether the Commerce Clause vests inCongress the power to “expand access to health care”and, if so, whether the Necessary and Proper Clausevests in Congress the power of “making affordablehealth care insurance more widely available.” Acareful examination of the terms of the Act, and thetext of both clauses, demonstrates that neither poweris constitutionally authorized.

A. The Government’s Claim that PPACA Is an“Economic Regulation” of “EconomicConduct” Is False.

In an effort to fit PPACA and its individualmandate under the Commerce Clause by applying theso-called “substantial effects” test, the Governmentcontends that the Act, as a whole, and the mandate inparticular, are nothing more than economic regulationsof economic conduct. See Pet. Br., pp. 17-19, 21-37. Oncloser look, however, PPACA and the individualmandate only appear to implement an economicmeasure to achieve economic objectives. The economicclaims made by the Government are little more than a

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facade designed to camouflage what is really anenactment of a public morals policy governing personaland familial decisions concerning the physical,emotional, and spiritual health of individual humanbeings, a power not found among those enumerated inthe Constitution.

In justification of the individual mandate, Congresscharacterized the individual decision to take care ofone’s body to be an “activity that is commercial andeconomic in nature: economic and financial decisionsabout how and when health care is paid for, andwhen health insurance is purchased.” See 42 U.S.C.§ 18091(a)(2)(A) (emphasis added). In its brief, theGovernment agrees with Congress that health caredecisions are just a matter of dollars and cents. SeePet. Br., pp. 33, 41. By requiring everyone to purchasea government-approved health insurance policy, theGovernment presumes everyone will have the sameaccess to the health care that they need and want. Both Congress and the Government are mistaken. Thehealth care system approved by PPACA is only one ofseveral available. Yet, PPACA and the individualmandate force everyone, except the precious few whohave been given a statutory exemption,17 to pay for aservice that many persons would not voluntarily chooseto utilize, for a variety of reasons that have nothing todo with money.

For example, typical government-subsidized healthcare programs, such as Medicare, exclude from

17 See 26 U.S.C. § 5000A(d) and (e).

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coverage alternative therapy, such as “homeopathy,naturopathy, acupuncture, holistic therapies,midwifery and herbal medicines.”18 According to theGovernment, PPACA “supplements” Medicare, so thereis no reason to expect that PPACA will expand the“health care market” to include alternatives to theconventional, pharmaceutical-centered, allopathicmedicine. In short, there is no monolithic health caremarket as represented by the Government in its brief. See, e.g, Pet. Br., pp. 3-5. See Alternative Medicine:Expanding Medical Horizons: A Report to the NationalInstitutes of Health on Alternative Medical Systemsand Practices in the United States, pp. xi-xxxi (1992)(“The Chantilly Report”).19

In further “economic” justification of the individualmandate, the Government contends that “as [a] class,the uninsured shift tens of billions of dollars of costsfor the uncompensated care they receive to othermarket participants annually.” Pet. Br., p. 2. As theGovernment explains, the individual mandate isspecifically designed to solve this “economic” problem:

[T]he uninsured as a class presentlyexternalize the risks and costs of much of their

1 8 S e e ht t p : / /www.medicare . com /s er v i c es -and-procedures/alternative-therapies.html?ht=.

19 “Worldwide, only an estimated 10 percent to 30 percent ofhuman health care is delivered by conventional, biomedicallyoriented practitioners. The remaining 70 percent to 90 percentranges from self-care according to folk principles to care given inan organized health care system based on alternative traditionor practice.” The Chantilly Report, p. xv.

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health care; the minimum coverage provisionwill require that they internalize them (or paya tax penalty). This is classic economicregulation of economic conduct. [See Pet. Br.,p. 19.]

But the unilateral economic decision of the uninsureddoes not externalize the cost and risk of his or her ownhealth care. Rather, as the Government concedes, theuninsured receives health care because of “the well-established legal duty of health care providers toprovide emergency care regardless of ability topay.” See Pet. Br., p. 20 (emphasis added). Thus, therule mandating the near universal purchase ofgovernment-approved insurance for government-approved health services is justified, according to theGovernment, not because restrictions at the point ofsale are said to be “infeasible” economically, butbecause failure to purchase health insurance is morally“inhumane.” Id. After all, the “legal duty” to providehealth care services to someone, regardless of therecipient’s ability to pay, is said to arise out of “deeplyrooted societal values” and “ethical duties” of healthcare providers, without regard for monetaryconsiderations. See Pet. Br., p. 7. Thus, the individualmandate is not a “classic economic regulation ofeconomic conduct” (Pet. Br., p. 19), but a classic publicmorals regulation requiring, what Congress hasdetermined to be one’s moral duty.20

20 Indeed, the individual mandate is designed to force theAmerican people to behave like the Good Samaritan, whovoluntarily spent his money to cover the medical expenses of aman lying by the wayside. But the parable of the Good Samaritan

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Finally, the individual mandate, along with otherPPACA provisions, are designed to (i) equalize thefinancial burdens borne by the healthy and theunhealthy (Pet. Br., pp. 5-6, 10, 18); and (ii) providebetter health care for the poor (Pet. Br., p. 9). Indeed,the “market reforms [to] end discriminatory practicesunder which millions of Americans are deniedcoverage, or charged unaffordable rates, based onmedical condition or history” (Pet. Br., p. 18), removefrom consideration a major economic risk factor insetting the price for a health insurance policy. Suchreforms are not based upon economic considerations,but on moral ones.

In sum, PPACA and the individual mandate areclassic examples of social welfare legislation whichsubordinates financial concerns to humanitarian ones. Yet, the Government insists that “the Act’s broadframework of economic regulations and incentives” areeconomic in nature and purpose, well within the scopeof the Commerce Clause. See Pet. Br., pp. 24-30. Tothe contrary, PPACA, as a whole, and the individualmandate in particular, are social welfare legislation, aclassic example of the exercise of the police powerreserved to the States. See T. Cooley, A Treatise onConstitutional Limitations, p. 706 and n.1 (5th ed.Little, Brown: 1883).

teaches what one must do to meet God’s commandment to “lovethy neighbor as thyself.” See Luke 10:25-36. Coercing behavior tofulfill the law of love is, however, destructive of that verycommand, love necessarily being a voluntary, unconditional act. See H. Clark, Biblical Law, § 23, pp. 11-12 (Metro Press, Portland:1943).

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B. The Commerce Clause Does Not Vest inCongress Any Power to Adopt a NationalHealth Care Policy.

As Chief Justice John Marshall recognized inGibbons v. Ogden, it “has always been understood[that] the sovereignty of Congress [is] limited tospecified objects.” Id., 22 U.S. at 197 (emphasisadded). Among the enumerated powers in the UnitedStates Constitution, there is none that empowersCongress to enact any law, the object of which ishealth care. As Chief Justice Marshall observed inGibbons, “health laws of every description ... arecomponent parts” of the “immense mass of legislation,which embraces every thing within the territory of aState, not surrendered to the general government.” Id., 22 U.S. at 203 (emphasis added). Because “[n]odirect general power over these objects is granted toCongress,” Chief Justice Marshall continued, “theyremain subject to State legislation.” Id.

Almost 80 years later, echoing Chief JusticeMarshall, Chief Justice Melville Fuller wrote:

The power of the State to impose restraintsand burdens on persons and property in ...promotion of the public health ... is a poweroriginally and always belonging to theStates, not surrendered by them to theGeneral Government ... and essentiallyexclusive.... [Champion v. Ames, 188 U.S.321, 364-65 (1902) (Fuller, C.J., dissenting)(emphasis added).]

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Chief Justice Fuller continued, concluding:

To hold that Congress has general police powerwould be to hold that it may accomplishobjects not entrusted to the GeneralGovernment, and to defeat the operation of theTenth Amendment.... [Id.]

According to Webster’s 1828 dictionary, the word“object” meant “end” or “ultimate purpose.” Id. Fiveyears before Chief Justice Marshall handed down hisGibbons opinion, he wrote McCulloch v. Maryland, 17U.S. (4 Wheat.) 316 (1819) in which he stated that itwas of the very “nature” of a constitution that:

[O]nly its great outlines should be marked, itsimportant objects designated, and the minoringredients which compose those objects bededuced from the nature of the objectsthemselves. That this idea was entertained bythe framers of the American constitution, isnot only to be inferred from the nature of theinstrument, but from the language. [Id. at 407(emphasis added).]

Thus, by its very nature, the exercise of an enumeratedpower was limited to the “object” or “end” of theexercise of that power, as determined by theconstitutional text, not by the will of Congress.

In McCulloch, Chief Justice Marshall captured thisvery principle in his seminal test for determiningwhether a statute enacted by Congress was authorizedby the Necessary and Proper Clause:

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Let the end be legitimate, let it be within thescope of the constitution, and all means whichare appropriate, which are plainly adapted tothat end, which are not prohibited, but consistwith the letter and spirit of the constitution,are constitutional. [Id. at 421 (emphasisadded).]

While the McCulloch test is regularly repeated by thisCourt, and appears in the Government’s opening briefin this case (Pet. Br., p. 23), it has been stripped of allmeaning by the assumption that Congress has plenarypower under the Commerce Clause to pursue anyobject, end, or purpose with respect to any subjectmatter that it chooses. See Pet. Br., pp. 21-24. If anyend will do, then the Commerce Clause, enhanced bythe Necessary and Proper Clause, means that Congressis no longer a government of enumerated powers. SeeRaich, 545 U.S. at 66-71 (Thomas, J., dissenting).

Such a result is inconsistent with Marshall’stextual legacy, as is plainly evident from that portionof the McCulloch decision explaining its end/meanstest:

[S]hould Congress, under the pretext ofexecuting its powers, pass laws for theaccomplishment of objects not entrusted tothe government, such [acts are] not the law ofthe land. [Id., 17 U.S. at 423 (emphasisadded).]

Such a result is also inconsistent with the text andstructure of the Constitution. As Justice Thomas has

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most recently observed, the Necessary and ProperClause, attached to the Commerce Clause, has beenconstrued to “confer on Congress a general ‘policepower’ over the Nation,” thereby “subvert[ing] basicprinciples of federalism and dual sovereignty.” Gonzales v. Raich, 545 U.S. 1, 65 (2005) (Thomas, J.,dissenting). This would, Justice Thomas has furthernoted, “convert the Necessary and Proper Clause intoprecisely what” Chief Justice Marshall’s test wouldnever countenance — “a ‘pretext ... for theaccomplishment of objects not intrusted to thegovernment.’” Id. at 66. Applying that test here,under the pretext of exercising its power to regulatecommerce, Congress produced PPACA, and itsindividual mandate, as a public health care measure,the enactment of which is outside the scope of any ofits enumerated powers and, thus, is anunconstitutional usurpation of the police powersreserved to the States by the Tenth Amendment to theU.S. Constitution.

C. The Means Chosen by Congress toEstablish Its National Health CareServices System Was Not an Exercise ofLegislative Power.

While Article I, Section 8, Clause 18 is a grant oflegislative power to Congress, it is not without limits. As the text states, Congress is authorized to “make ...laws” that are “necessary and proper,” not to take anyaction that it might deem necessary to reach apurportedly constitutional object or end. Thus, by itsvery language, the Necessary and Proper Clause vestsin Congress only those powers that are “legislative” in

33

nature. See also Article I, Section 1. To be justified asan exercise of power under the Necessary and ProperClause, then, PPACA must be legislative in nature,namely, “rule[s] ... prescribed by the supreme power ofa state to its subjects, for regulating their actions.” Webster’s 1828 Dictionary. See also I W. Blackstone,Commentaries on the Laws of England, p. 38 (U. ofChicago, facsimile ed. 1765) (“Law ... is a rule of action,which is prescribed by some superior, and which theinferior is bound to obey....”). More particularly, theNecessary and Proper Clause only authorizes Congressto make “rule[s] of civil conduct ... commanding whatits subjects are to do, and prohibiting what they are toforbear.” See Webster’s 1828 Dictionary. See also IBlackstone’s Commentaries at 44. By definition, then,the Necessary and Proper Clause, as applied to theCommerce Clause, does not authorize Congress toengage in commerce, but “to regulate [it]; that is, toprescribe the rule by which commerce is to begoverned.” See Gibbons, 22 U.S. at 196.

According to the Government, PPACA is a“comprehensive framework of economic regulation andincentives that will improve the functioning of thenational market for health care by regulating theterms on which insurance is offered, controllingcosts, and rationalizing the timing and method ofpayment for health care services.” Pet. Br., pp. 2-3(emphasis added). But under PPACA, the federalgovernment does not “regulate” the interstate healthcare insurance business; rather, it engages in thatbusiness by authorizing the Secretary of Health andHuman Services to make business decisions, not toexecute rules of conduct by which nongovernment

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entities are to conduct their businesses.

First, under PPACA, the Secretary of Health andHuman Services is empowered to set the Medical LossRatio (“MLR”), that is, the percentage of premiumdollars that must be applied to health care expensesand quality improvement, rather than to sales,overhead, and profits — a quintessential businessdecision previously left largely to private insurancecompanies. See A. Roy, “How ObamaCare May DisruptYour Health Plan,” Forbes.com (Sept. 29, 2010). Ifcompanies fail to meet the Government’s MLR, thenthey are required to provide a rebate to theircustomers. See “New Regulations Threaten Insurancefor CAM Patients,” p. 1.21 The rebate requirement, inturn, will discriminate against health plans with highdeductibles and health savings accounts used by manyto help “pay for complementary and alternativemedical (CAM) treatments not covered by regularinsurance,” because the payments made for suchservices will not count as payments for health careunder the conventional medicine policy. Id. As aresult, insurance companies will likely move away fromplans that have high deductibles, and Health SavingsAccounts will largely disappear from themarketplace.22 Id.

21 http://www.anh-usa.org/new-regulations-threaten-insurance-for-cam-patients/print/.

22 Plans with low deductibles, with more “first dollar” coverageare relatively more expensive, as they have high administrativecosts. See, e.g., D. Hogberg, “ObamaCare Rule May Bar HSAs,Low-Cost Health Plans Investors,” Investors.com (Dec. 7, 2011),ht tp : / /news . investors . com/Art i c l e /594079 /20111207

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Second, under PPACA, the Secretary “controlshealth care costs by reforming the terms on whichhealth insurance is offered....” Pet. Br., p. 17(emphasis added). “Cost control” is the “use bymanagement of cost analyses and their interpretationin corrective measures towards increasing efficiencyand economy of operation.” N. Webster, Third NewInternational Dictionary (1964), p. 515. PPACAcontrols costs by vesting in Government the power todecide what kinds of health care insurance productsmay be made available for purchase in themarketplace. For example, no one will be able topurchase a health care product that is “based onmedical condition or history.” See Pet. Br., p. 18. Instead, PPACA ensures that there will be no healthcare insurance product that “discriminates” on thebasis of risk, so that persons who might otherwise notbe able to afford health care insurance will have suchmarket access at a price set by the Secretary, not at aprice set by the market. See Pet. Br., p. 17. This isanother classic business decision that would beimplemented under the guise of the exercise ofexecutive power, pursuant to a rule enacted byCongress. See Pet. Br., pp. 17-18.

Third, under PPACA, the Secretary would“expand[] access to health care services ... by ...rationalizing the timing and means of payment forhealth care services.” See Pet. Br., p. 17 (emphasisadded). “Rationalize” is defined by Webster as“apply[ing] the principles of scientific management to

1853/obamacare-rule-hits-hsa-high-deductible-plans.htm.

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(a factory, industrial process, or industry).” Webster’s1964 Third New International Dictionary at 1885. The“rationalizing” power governs the “timing” and “means”of payment for the purchase of the insurance productoffered by the Government-run health care insurancemarket. Again, the individual mandate “plays acritical role,” requiring that everyone must buy theGovernment’s health care insurance product at the“time” and using the “means” determined by theGovernment. See Pet. Br., pp. 17-19. Traditionally,the decision of whether to purchase a product is anindividual one, based upon numerous factors, only oneof which is affordability. Not so, however, under thenew scientific management system implemented byPPACA. Under PPACA’s collectivist health careservice system, almost everyone must participate as abuyer in the market, and the Secretary is given theexecutive power to establish and solidify theGovernment’s newly-established monopoly.

What appears to be modern and enlightened,however, is feudal and enslaving. Under PPACA, theGovernment acts as if it is a sole monopolisticproprietor, empowered to exercise virtual ownership ofboth sellers and buyers of health care insurance in amarket in which the Government determines thedemand for health care insurance, sets the terms andprice, and keeps out the competition. But theNecessary and Proper Clause rests upon an entirelydifferent political and legal foundation, wherein civilauthorities are empowered to administer justice bymeans of democratically and constitutionally enactedrules of civil conduct governing an entrepreneurialpeople, not to exercise monopolistic dominion like that

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employed by a feudal lord over the serfs living on aking’s land. To read the Necessary and Proper Clause,as the Government has done in this case, would invertthe relationship of government officials and the people,transforming the former into the role of the master,and the latter into role of the servant. Such aninversion directly contradicts the principle upon whichthe Necessary and Proper Clause, as well as all otherenumerated powers, rests, namely, that “[t]hegovernment of the Union ... is, emphatically, and truly,a government of the people,” constituted by them toexercise only those powers “granted by them.” McCulloch, 17 U.S. at 404-05. Under the Americannational charter, the Declaration of Independence, it isthe government’s role to secure the people’s God-givenrights to life, liberty, and the pursuit of happiness, notto displace those rights with socialistic experimentslike PPACA.

VI. PPACA IS AN IMMORAL MANDATEUNWORTHY OF A FREE PEOPLE.

On January 20, 2012, the Obama administrationannounced that, in order to be compliant with PPACA’smandate that all health insurers cover “preventivehealth services,” employers will be required to furnish,without charge, “the full range of contraceptivemethods approved by the Food and DrugAdministration”23:

23 R. Pear, “Obama Reaffirms Insurers Must CoverContraception,” The New York Times (Jan. 20, 2012).

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Among the drugs and devices that must becovered are emergency contraceptivesincluding pills known as ella and Plan B. Therule also requires coverage of sterilizationprocedures for women without co-payments ordeductibles. [Id.]

Amongst these drugs and devices are potions andinstruments that kill the most helpless among us —unborn children.24

In support of this new mandate, the Secretary ofHealth and Human Services stated that the new rule,with only a narrow exception for churches, “strikes theappropriate balance between respecting religiousfreedom and increasing access to important preventiveservices.” Id. Not surprisingly, the Secretary’sannouncement lit up a firestorm of protest, inCatholics and Protestants alike. The NationalAssociation of Evangelicals proclaimed that“[e]mployers with religious objections to contraceptionwill be forced to pay for services and procedures theybelieve to be morally wrong.” Id.

In response, President Obama announced thatreligious employers would be given a year to comply. The Catholic Archbishop replied: “In effect, thepresident is saying that we have a year to figure outhow to violate our consciences.” Id.

Throughout its brief in this case, the Government

24 See D. Harrison, M.D., Family Research Council Blog (Sept. 28,2011), http://www.frcblog.com/2010/09/ella-vs-plan-b/.

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has repeatedly referred to “health care,” as if it were aself-defining, morally-benign term, governed only byeconomic considerations (see Pet. Br., pp. 18-19, 33-34)and, because “‘[h]ealth care and the means of payingfor it are “quintessentially economic”’” (id. at 46),PPACA is “well within the established scope ofCongress’s power.” Id. at 23-24. The January 20“contraceptives” mandate that extends toabortifacients, issued just two days before the 39th

anniversary of Roe v. Wade, shatters the PPACAeconomic masquerade. The new employer mandateexposes PPACA and its individual mandate for whatthey really are, a stealth attack unleashinggovernment bureaucrats to intrude into an area of lifethat has long been governed by the dictates ofindividual conscience and by a person’s relationship tothose closest to him — his family, his friends, and hisGod. See Cruzan v. Director, Missouri Dept. of Health,497 U.S. 261, 269-71 (1990). Even if the currentexemption for churches were extended to church-runhospitals, the Government would still be compellingCatholic and Christian businessmen to fund healthcare that violates their religious beliefs and moralconscience. PPACA’s individual mandate is inherentlycoercive, intruding into areas never before violated bythe federal government, which is why it should neverbe tolerated by a sovereign people.

CONCLUSION

For the reasons set out above, the decision of theCourt of Appeals should be affirmed with respect to theindividual mandate.

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Respectfully submitted,

GARY G. KREEP WILLIAM J. OLSON*U.S. JUSTICE HERBERT W. TITUS FOUNDATION JOHN S. MILES932 D Street, Ste. 2 JEREMIAH L. MORGANRamona, CA 92065 WILLIAM J. OLSON, P.C.(760) 788-6624 370 Maple Avenue WestCounsel for USJF Suite 4

Attorney for U.S. Justice Vienna, VA 22180-5615Foundation (703) 356-5070

wjo@mindspring.com*Counsel of Record A t t o r n e y s f o r A m i c i

CuriaeFebruary 13, 2012