Highlights: the Cato Institute Eviscerates Obamacare's Individual Mandate

Among many Amici Curiae ("Friend of the Court") briefs filed during the Obamacare fight, the Cato Institute's (PDF) is among the most interesting and powerful. Its highlights are well worth reading.

Question Presented

Can a limited government to whom a free people have delegated only certain enumerated powers commandeer that people into purchasing a product from a private business pursuant to its power to pass laws “necessary and proper for carrying into execution” the authority to “regulate Commerce . . . among the several States”?

Summary of Argument

The individual mandate exceeds Congress’s power to regulate interstate commerce under existing doctrine. The outermost bounds of this Court’s Commerce Clause jurisprudence—the “substantial effects” doctrine—stop Congress from reaching intrastate non-economic activity regardless of its effect on the economy. Nor can Congress compel someone to engage in commerce, even if it purports to do so as part of a broader regulatory scheme.

The Constitution does not permit Congress to conscript citizens into economic transactions to remedy the admitted shortcomings—which the government usually terms “necessities”—of a hastily assembled piece of legislation...

...Although the Necessary and Proper Clause allows Congress to execute its regulatory authority over interstate commerce, it is not a blank check permitting Congress to ignore constitutional limits by manufacturing necessities and commandeering citizens to do its bidding... The individual health insurance mandate is not constitutionally warranted simply because it is “necessary” to make other legislation function properly. Indeed, any law “necessary” or otherwise—that purports to compel otherwise inactive citizens to engage in economic activity is unconstitutional.

While the government emphasizes the “uniqueness” of the healthcare market and the wisdom of the legislation, “this case is not about whether the Act is wise or unwise…in fact, it is not really about our healthcare system at all. It is principally about our federalist system, and it raises very important issues regarding the Constitutional role of the federal government.

...Moreover, what Congress is trying to do here is literally unprecedented, as recognized even by the lower courts that ruled for the government. “Congress has never exercised its commerce power in this way, and nothing suggests that this tradition reflects 200 years of self-restraint.” ... “The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles.”

The Congressional Budget Office agrees: “The government has never required people to buy any good or service as a condition of lawful residence in the United States." Nor has Congress ever before imposed on everyone a civil penalty for declining to participate in the market. And never before have courts had to consider such a breathtaking assertion of power under the Commerce Clause. Even in Wickard v. Filburn, 317 U.S. 111 (1942), the federal government claimed “merely” the power to regulate what farmers grew, not to mandate that people become farmers, much less to force people to purchase farm products. Even if not purchasing health insurance is considered an “economic activity”—which of course would mean that every aspect of human life is economic activity—there is no constitutional warrant for Congress to force Americans to enter the marketplace to buy a particular good or service...

...The explicit purpose of Article I is to grant Congress certain enumerated powers and then strictly limit them. James Madison, the architect of our system of government, famously observed that “[i]n framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

...Thus, Article I gives Congress only certain legislative powers “herein granted,” Articles II and III check those powers, and the Tenth Amendment emphasizes that all other powers remain with those who breathed life into the new government in the first place: the sovereign “people of the United States.” The Framers believed that limiting federal power, and reserving the “residual” power in the hands of the states and the people would help “ensure protection of our fundamental liberties” and “reduce the risk of tyranny and abuse.”

...Given the Framers’ clear intent to establish a limited government of enumerated powers, it is unsurprising that this Court has consistently reaffirmed that the federal government does not enjoy a general police power. ... The Court should not now break with this well established and foundational American principle.

It is both telling and tragic that our hopes for individual sovereignty in this country now rest in the hands of one or two individuals on the Supreme Court.

And if Obama is reelected, he will likely have the chance to further stuff the court with doctrinaire radicals like Elena Kagan. And this Republic would be doomed.