The brief is here, and it strikes me as significantly better than the briefs that DOJ was filing in the early mandate cases. In terms of atmospherics, it leads with a background of the health care industry to make clear that the industry as a whole is such a significant part of commerce, and it presents insurance as the “traditional” way to pay for health care. The argument section then leads with the Necessary and Proper clause. The word “Sutton” appears 14 times, and the word “Kavanaugh” appears 5 times. Just as a matter of litigation strategy, I agree that’s the best way to present it.
It will be interesting to see if Clement et. al. come up with anything new in their merits brief. If I were briefing it for the challengers, I would de-emphasize the formalistic activity/inactivity distinction and instead just focus on the overall extent of government power. That is, instead of focusing on any one aspect, I would focus on all of them together, and argue that the statute taken as a whole just goes too far in a federal system.
UPDATE: Commenter Jon Shields points out this interesting passage from the brief:
Respondents nonetheless attempt to subdivide the uninsured into cost-shifters (who they say can be regulated) and non-cost-shifters (who they say cannot be), contending that “many healthy individuals make a rational choice to self-insure and are fully capable of paying for the care they receive,” and that uninsured individuals are able to properly consider their “actuarial risk in self-financing (their) healthcare”…
The circumstances of this case well illustrate the flaws in respondents’ premises. At the outset of this litigation, respondent Mary Brown thought she had made a rational choice to forgo insurance: she said she did “not believe that the cost of health insurance coverage (was) a wise or acceptable use of (her) financial resources,” j.a. 141, apparently believing that she could pay her medical bills out of pocket. That belief proved incorrect. Ms. Brown and her husband recently filed a petition for bankruptcy, and they list among their liabilities thousands of dollars in unpaid medical bills, including bills from out-of-state providers. Those liabilities are uncompensated care that will ultimately be paid for by other market participants. As Congress found, Brown’s experience is hardly atypical. 42 u.s.c.a. 18091(a)(2)(g) (“62 percent of all personal bankruptcies are caused in part by medical expenses.”).