Today, we filed an amicus brief in Virginia v. Sebelius, one of the cases challenging the constitutionality of the Obama health care plan’s individual mandate, which requires nearly all Americans to purchase health insurance by 2014 or pay a fine. I wrote the brief on behalf of the Washington Legal Foundation, a leading pro-free market public interest law firm, and fourteen prominent constitutional law scholars (this was the pro bono project that I finished right before my wedding).
The brief signers include VC co-conspirators Jonathan Adler, David Kopel, and Todd Zywicki, along with other well-known constitutional law scholars such as James Ely (Vanderbilt), Kurt Lash (University of Illinois), Gary Lawson (BU), Steven Presser (Northwestern), and others. Also among the signers is Professor Steven Willis of the University of Florida, coauthor of an important article explaining why, even if the mandate is a tax, it is not a tax authorized by the Constitution. Co-blogger Randy Barnett is filing his own amicus brief along with the Cato Institute and Competitive Enterprise Institute.
If nothing else, I hope the brief will help dispel the myth that there is an expert consensus to the effect that the mandate is constitutional (see also here). It should by now be obvious that many well-known and highly respected scholars believe otherwise.
The brief covers all three provisions of the Constitution that the government claims authorize the mandate: The Commerce Clause, the Tax Clause, and the Necessary and Proper Clause. Part I addresses the Commerce Clause and includes what I think is the most thorough discussion so far of why the mandate is not authorized by the Supreme Court’s broadest-ever Commerce Clause decision, Gonzales v. Raich (pp. 6-10). Part I also addresses many other relevant Commerce Clause decisions, including lower court cases. Part II covers the Tax Clause, emphasizing that the mandate is a regulatory penalty, not a tax as defined by Supreme Court precedent (pp. 16-21). Finally, Part III discusses the Necessary and Proper Clause. Among other things, it explains why the mandate runs afoul of the five part test established in the Supreme Court’s most recent Necessary and Proper Clause decision, United States v. Comstock, which I also discussed in detail in this article.
Because this is a district court brief, we take the Supreme Court’s current precedents as given and do not consider the possibility that that precedent might be flawed. Obviously, a district judge has no authority to overrule or cut back Supreme Court decisions. My own view, and that of many of the WLF brief signers, is that current precedent has numerous defects and often gives the federal government far more power than the text and original meaning of the Constitution actually permit. But even under Court’s overly permissive current doctrine, the mandate has serious flaws.
Although the early skirmishing has so far gone against the government, it is quite possible that the Supreme Court will ultimately uphold the mandate. But if it does, it won’t be for lack of strong arguments the other way.
UPDATE: I should note that the scholars who signed the brief are far from an exhaustive list of those who believe the mandate is unconstitutional. Rather, they were ones whom I could reach and persuade to sign on short notice. WLF and I decided not to reach out to potential signers until we had a nearly complete draft. There are other prominent legal scholars who believe the mandate is unconstitutional who did not sign because they are writing their own amicus briefs (as in the case of co-blogger Randy Barnett), because I was not able to reach them in time, or possibly because they don’t want to sign on to some of the specific points I made even if they agree with the bottom-line conclusion. Among the other well-known scholars who believe the mandate is unconstitutional are Richard Epstein, Michael McConnell, and Jonathan Turley.