First ACA Briefs Due to SCOTUS Today


By Hadley Heath

According to the SCOTUS briefing schedule, there are a few briefs due today in the health care lawsuits:

  • From the Solicitor General: a brief on the Minimum Coverage Provision issue (No. 11-398), not to exceed 16,500 words
  • From the Court-appointed amicus curiae (Bob Long): a brief on the Anti-Injunction Act issue (No. 11-398)
  • From the petitioners: a brief on the Severability issue (Nos. 11-393 and 11-400)

Of greatest interest is the government's brief, which can be found here.  In defending the individual mandate ("minimum essential requirements"), the brief unsurprisingly (yawn) points to Raich and relies on the "substantial effects" doctrine:

In addition to regulating the “channels of interstate commerce” and “the instrumentalities of interstate commerce, and persons or things in interstate commerce,” Congress may “regulate activities that substantially affect interstate commerce.” Gonzales v. Raich, 545 U.S. 1, 16-17 (2005). 

In a quick look at the document, I performed a little experiment of my own and searched for the words "limiting principle."  My search returned zero results.

So, I tried again with "limiting" and got nothing.  With "limit," I had more luck.  Here's one revealing result (emphasis mine):

The court of appeals was of the view that Congress’s only choice in enacting a minimum coverage provision was to “require those who consume health care to pay for it with insurance when doing so.” Pet. App. 119a. No constitutional principle supports such a limitation on Congress’s choice of means for achieving its constitutionally authorized ends.

Yep.  There it is folks.  The end of American government as we know it... and it's all slipping away silently in some Supreme Court briefs.  Let's hope that the High Court doesn't stand for this.  

Not only does our government have a limited scope (it is not meant to tackle every problem that arises in the U.S.), but it has limited powers (it cannot achieve its constitutionally authorized ends by any means).  Otherwise the government could do a number of things that sound crazy, citing the many ends that today our government seeks to achieve.  Some examples? It could limit the number of children poor people have (general welfare, anti-poverty), limit the caloric intake of fat people (for public health reasons), tell people what to buy (interstate commerce, people!) or even indefinitely detain American citizens (for public safety and national defense)!!  

The reason government power is subject to limiting principles is because when government acts by unconstitutional means, individual rights suffer.

The "choice of means" is much more important than the DOJ would like to make it seem.  Otherwise, Republicans and Democrats would get along a lot more often, as they seemingly agree on some of the ends they'd like to reach (economic growth, poverty reduction, insuring more people, etc.), but diametrically oppose each other's means.

The next deadline is not for the reply briefs (which are due in early February), but is for the brief from petitioners on the Medicaid issue (No. 11-400), due Tuesday, January 10.


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