Cato and My Amicus Brief in Sixth Circuit

On Wednesday, the Cato Institute and I filed an amicus brief in the lawsuit brought by the Thomas More Law Center. (This is the complaint dismissed by District Court Judge Steeh prior to District Court Judge Hudson finding the individual mandate to be unconstitutional.) In our brief, we describe the existing doctrine governing the Necessary & Proper Clause — the substantial effects doctrine — and how it is limited to the regulation of economic activity. Under current Necessary and Proper Clause doctrine which binds lower courts, therefore, there is no existing authority for Congress to go beyond economic activity to reach inactivity. We also discuss Justice Scalia’s proposed new Necessary & Proper Clause doctrine (that was also dictum in Lopez & Raich): Congress may reach intrastate noneconomic activity when doing so is essential to a broader regulatory scheme. We contend that this yet-to-be-adopted doctrine should be limited by a distinction that is implicit in all previous Necessary & Proper executions of the commerce power: the activity-inactivity distinction. Finally, we discuss how, even if the individual insurance mandate is deemed to be “necessary,” it constitutes an “improper” commandeering of the people. You can download a pdf of the brief here.

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