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Iliya Tynan
Professor Johnson
US Constitutional History
4/28/2011
BRIEF AMICUS CURIAE
CHALLENGING THE PATIENT PROTECTION AFFORDABLE
CARE ACT 2010 & THE HEALTH CARE AND EDUCATION
RECONCILIATION ACT 2010
April 28, 2011
Opening Summary
We, the private citizens of New York are collectively challenging The Patient Protection
Affordable Care Act of 2010 & The Health Care And Education Reconciliation Act of 2010.
Our interests lie in the fear of an ever expanding federal government as well as within the courts
who seem to interpret the constitution ever more broadly as to allow for the centralization of
greater power within the legislative branch of government. In reference to “ObamaCare”, we
feel that it is necessary to put a stop to this kind of extreme legislation now rather than the future.
If this kind of legislation is allowed to pass now, it will only solidify the powers of the federal
government but will further impede upon the rights of America’s private citizens. These laws
will be challenged in the following ways:
Argument
1. As States’ Rights
2. The Individual Mandate (Activity vs. Inactivity)
3. Disambiguation of tax/penalty rhetoric
4. The Legal Evolution of the Commerce Clause and its Ramifications
5. Spending Clause Complications
6. As an extension of Medicaid and the Necessary and Proper Clause
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7. Conclusion
States’ Rights:
The debate over whether or not the Obama Health Care legislation is beneficial or
detrimental to the citizens of the United States is not the issue at hand. Instead, the underlying
issue is whether or not the federal government has the power or authority to commandeer state
governments to adopt a system which calls for mandatory health care for its residents. This issue
goes back to James Madison’s quest for the solution to the “great difficulty”, a solution which
would work to “enable the government to control the governed; and in the next place to oblige it
to control itself.”1 The solution brought about by the founding fathers was that of Dual
Sovereignty. This system empowers the state government with the ability to “control the
governed”, while the federal government exists to ensure that state governments do not exceed
their bounds as prescribed by the United States Constitution. In theory, what is the result of this
governmental structure? A weak federal government and a strong state government which is only
limited by the national constitution’s conditions.
To further explicate this structure, the tenth amendment dictates that those powers not
delegated to the federal government by the constitution are instead given to the individual states.
The Founding Fathers’ rationale behind implementing this Dual Sovereignty was to proactively
attempt to limit the “risk of tyranny and abuse”. This distinction will be very important to
understand infra. as the Health Care Bill’s legality lies in how far the federal government can
encroach upon the carte blanche delineated by the constitution to the individual states.2
1
James Madison The Federalist 51.
2
“ORDER GRANTING SUMMARY JUDGMENT”, Roger Vinson, January 31 2011.
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Individual Mandate (Activity vs. Inactivity):
The Obama Health Care Legislation mandates that an overwhelming majority of
Americans purchase federally-approved health insurance or pay a monetary “tax”, in the guise of
an income; which, in reality, is actually a penalty. Here is why this mandate is unconstitutional:
it violates the commerce clause of the US constitution which congress relied on heavily in order
to pass this bill. It is an explicit violation of the constitution because Article I sec 8 clause 1, or
the Spending Clause does not grant the federal government power to institute penalties on the
citizens of the United States, only taxes, duties, imposts and excises. Charles Lane writes in the
Washington Post, in reference to the penalty/tax issue that “…one purpose of the Constitution is
to prevent government from engaging in politically expedient deception. The modern term, I
believe, is "transparency."”
Disambiguation of tax/penalty rhetoric:
A “Catch-22” arises in labeling the individual mandate as a tax or a penalty. The
government does not want to call the individual mandate a tax as Obama has stated. However,
this becomes problematic because if it is labeled as a penalty, ObamaCare’s individual mandate
would be illegal under the Spending Clause as penalties are not listed under the article, explained
Supra. This creates two problems for Obama: (1) Calling it a tax would go against his promise
of not raising taxes and (2) this would be a direct tax on something other than what is prescribed
by Article I Section 9 Clause 4, amended by the 16th amendment i.e. a tax on the failure to
acquire health insurance under ObamaCare.
Legal Evolution of the Commerce Clause and its Ramifications:
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In an interview regarding the misuse of the commerce clause as prescribed by the
constitution, John Eastman explains the difference between the Living Constitutionalist and
Originalist interpretations of the Constitution. The Living Constitutionalist method for
interpreting the words of the Founding Fathers implies that contemporary interpretations will fail
at understanding the original intent of the Framers. On the other hand, Originalists look to
history and documents left behind by the Founding Fathers such as the federalist papers, to name
a few, in order to understand the rationale behind the articles of the Constitution.
One of the problems found in the contemporary understanding and use of the commerce
clause is interpretation of the word “commerce”. This world has evolved from its colonial
denotation of “barter trade” to a connotation pertaining to industrialization, manufacturing,
agriculture, and retail sales. During the first hundred years of the Constitution’s inception,
however, the Commerce Clause was used in order regulate trade between states since they had
often imposed trade barriers. In other words, the commerce clause was a check placed on the
individual states’ power to put up trade barriers in order to prevent the threat of war and
dissolution of the union between the trading states.
This would change during Franklin Delano Roosevelt’s New Deal when courts were
pressured to accept the expansion of power of the federal government. This would become
possible due to an 1824 ruling by Chief Justice Marshall in Gibbons v. Ogden where the power
granted to congress by the Commerce Clause was greatly expanded to mean any “commerce”
(misuse of the original meaning e.g. operation of a steamboat) that affects more than one state.
The power of congress would once again be expanded in 1942 in Wickard v. Filburn. This
decision affirmed the Federal Government’s power to regulate activity vs. inactivity, analogous
to what the “individual mandate” would call for. It did so by stating that Filburn did not have the
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right to exceed the amount of wheat grown strictly for his personal use, as opposed to the selling
of his wheat which exceeded the quota of wheat as prescribed by law. Wickard was wrongly
decided and should be overturned, hopefully eliminating certain other mandated taxes such as
Social Security and Medicare for individuals who would choose not to pay into those systems,
had they the choice.
The only case that came close to delineating the powers of congress via the Interstate
Commerce Clause is that of United States v. Lopez in 1995. The decision stated that the federal
government did not have the right to “legislate control” over public schools under the Commerce
Clause as there was no interstate commerce involved, a step in the direction of the original
interpretation the word “commerce”. Unfortunately, in Gonzales V. Raich, No. 03-1454, better
known as the Medical Marijuana Case, the Supreme Court affirmed that the federal government
still has the right to overturn individual states’ laws, in this case: legalized personal use of
medical marijuana by the state of California. This shows how, over the years, the evolving
definition of the Commerce Clause, as defined by the Supreme Court, has broadened the Federal
Government’s power in reference to regulating individual states’ laws.
Simply put, the constitution was drafted in order to establish the powers of the three
branches of government. Justice Sandra Day O’Conner explains this in her own words which
will be later used by Judge Vinson in his ruling against Obama Health Care Law:
Some truths are so basic that, like the air around us, they are easily overlooked. Much of the
Constitution is concerned with setting forth the form of our government, and the courts have
traditionally invalidated measures deviating from that form. The result may appear "formalistic"
in a given case to partisans of the measure at issue, because such measures are typically the
product of the era's perceived necessity. But the Constitution protects us from our own best
intentions: It divides power among sovereigns and among branches of government precisely so
that we may resist the temptation to concentrate power in one location as an expedient solution to
the crisis of the day (as Charles Lane noted in the Washington Post 02/3/11).
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There are many arguments for the implementation of the individual mandate through
ObamaCare. One such argument was made by President Obama in a news interview regarding
the analogous mandate of automobile drivers having to purchase car insurance. There is a
distinct difference, however, between being given the choice to drive an automobile and being
forced to pay a penalty under ObamaCare. Individuals are not allowed the choice to opt out of
ObamaCare, which forces everyone alive to obtain health insurance. Instead, the rhetoric used
in support of ObamaCare falls subject to a slippery slope fallacy which can be seen with the
“broccoli example”; the anecdote of the federal government’s power expanding to the point
where there are no longer any checks or balances placed upon it which could grant it the power
to force Americans to have to eat broccoli. 3
Spending Clause Complications:
As mentioned Supra., the Spending Clause does not allow for the Federal Government to
institute penalties but rather, the Federal Government only has the right to implement taxes,
duties, imposts, and excises. ObamaCare violates the Spending Clause, as well as the precedent
set forth by South Dakota v. Dole, which places stricter guidelines on the spending power of
Congress. Dole had further instated these four limits: (1) the spending must be for the general
welfare; (2) the conditions must be stated clearly and unambiguously; (3) the conditions must
bear a relationship to the purpose of the program; and 4) the conditions imposed may not require
states “to engage in activities that would themselves be unconstitutional”.
Under ObamaCare, the Federal Government is already overstepping its bounds in terms
of the limits prescribed by the constitution, i.e. the creation of a penalty. In addition, according
to the Dole ruling, “a spending condition cannot be coercive” which is defined as follows: “in
3
Wheat, Weed, and ObamaCare: how the Commerce Clause Makes Congress All-Powerful. John Eastman, Chair in
Law at Chapman University School of Law.
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some circumstances the financial inducement offered by Congress might be so coercive as to
pass the point at which ‘pressure turns into compulsion against the states.’
Once again, this is not a tax, but rather a penalty, not a duty imposed on the sale of
imports or exports, not an Impost paid under a tariff nor an excise instated for goods bought
domestically. ObamaCare does not fit the 4 conditions prescribed by Dole, neither does it avoid
the “coercion theory” illegalized by that decision.
Extention of Medicaid and the Necessary and Proper Clause
It has been argued correctly that ObamaCare is an extension of the Medicaid program as
it will require the states to provide health services for those who are under the age of 65 with
incomes of up to 133% of the federal poverty level. In order to provide for its residents, states
would have to pay huge sums, possibly ones which they would not be able to afford. One
response to this is considering why states don’t just raise taxes. The answer is that the states
should not have to as prescribed by the ninth and tenth amendments to the Constitution. The
ninth amendment invalidates the power of the federal government to enact ObamaCare
legislation as it is not granted the power to do so under the Constitution4, “The enumeration in
the Constitution, of certain rights, shall not be construed to deny or disparage others retained by
the people”5. Furthermore, the tenth amendment affirms this: “The powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.”6 These two amendments from the Bill of Rights further the claim
4
“ORDER GRANTING SUMMARY JUDGMENT”, Roger Vinson, January 31 2011.
5
Bill of Rights, Amendment Nine.
Bill of Rights, Amendment Ten.
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that the federal government has no right to further implement taxes on, or regulate activity of
private persons. 7
The issue of the prescriptions provided by the tenth amendment, which are supposed to
limit the power of the federal government, can be easily overridden by the Necessary and Proper
Clause. These two conflicting pieces of United States law have been at odds for some time. In
United States v. Comstock, however, Justice Kennedy set a precedent for certain criteria that
would not restrict the Necessary and Proper Clause’s seemingly limitless powers. These are as
follows: (1) a case in which the National Government relieves the States of their own primary
responsibility to enact laws and policies for the safety and well being of their citizens.
See United States v. Morrison , 529 U. S. 598 (2000). (2) A case in which the exercise of
national power intrudes upon functions and duties traditionally committed to the State.
(Kennedy , J., concurring).8 We can easily see where the federal government is taking over the
rights of the states in regards to the “primary responsibility to enact laws and policies for the
safety and well being of their citizens”. Furthermore, “national power intrudes upon functions
and duties traditionally committed to the State” is an immediate problem faced by states who do
not wish to pay for or mandate the economic activity of their citizens.
Conclusion
To understand where our government went wrong is to understand the unjust
centralization of power of the federal government during the New Deal. According to the
framers, the federal government was only instituted in order to create a balance of dual
sovereignty between the people and state governments; to ensure that the states do not exceed
their bounds as prescribed by the constitution. To allow the New Deal decisions which extended
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8
“ORDER GRANTING SUMMARY JUDGMENT”, Roger Vinson, January 31 2011.
Justice Kennedy, concurring opinion US v. Comstock.
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federal power meant a very slippery slope which extended the federal government’s power to go
so far as to impede upon state’s rights which can be clearly seen in the Raich decision. The
expansion of the commerce clause was a grave error on the part of the judiciary in Wickard and
we are now feeling its repercussions. Perhaps the intentions of ObamaCare are sincere, however,
it will only take us further down this slippery slope of further expanding congress’s power which
constitution had intended to limit. Therefore we ask that the The Patient Protection Affordable
Care Act of 2010 & The Health Care And Education Reconciliation Act of 2010 be struck down
in order to preserve our government and way of life.