In the

Supreme Court of the United States

THOMAS MORE LAW CENTER, JANN DEMARS, JOHN CECI, STEVEN HYDER, and SALINA HYDER,

v.

Petitioners,

BARACK HUSSEIN OBAMA, in his official capacity as President of the United States, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

DAVID YERUSHALMI LAW OFFICES OF DAVID YERUSHALMI,P.C. P.O. BOX 6358 CHANDLER, AZ 85246 (646) 262-0500

July 26, 2011

ROBERT JOSEPH MUISE

Counsel of Record

THOMAS MORE LAW CENTER 24 FRANK LLOYD WRIGHT DRIVE P.O. BOX 393
ANN ARBOR, MI 48106
(734) 827-2001 rmuise@thomasmore.org

Counsel for Petitioners

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

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QUESTIONS PRESENTED

This case challenges Congress’s authority to require private citizens to purchase and maintain “minimum essential” healthcare insurance coverage under penalty of federal law (hereinafter “individual mandate”) pursuant to the Patient Protection and Affordable Care Act.* Petitioners, who are subject to the individual mandate, seek review of the divided opinion of the Sixth Circuit, which upheld the constitutionality of the mandate as a proper exercise of Congress’s Commerce Clause authority.

1. Does Congress have authority under the Commerce Clause to require private citizens to purchase and maintain “minimum essential” healthcare insurance coverage under penalty of federal law?

2. Is the individual mandate provision of the Act unconstitutional as applied to Petitioners who are without healthcare insurance?

* Pub. L. No. 111-148, 124 Stat. 119 (2010), amended by Healthcare and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (hereinafter “Affordable Care Act” or “Act”).

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PARTIES TO THE PROCEEDING

The Petitioners are Thomas More Law Center, Jann DeMars, John Ceci, Steven Hyder, and Salina Hyder (collectively referred to as “Petitioners”).

The Respondents are President Barack Hussein Obama, in his official capacity as President of the United States; Kathleen Sebelius, in her official capacity as Secretary, United States Department of Health and Human Services; Eric H. Holder, Jr., in his official capacity as Attorney General of the United States; and Timothy F. Geithner, in his official capacity as Secretary, United States Department of Treasury (collectively referred to as “Respondents”).

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TABLE OF CONTENTS

QUESTIONSPRESENTED ………………. i

PARTIESTOTHEPROCEEDING ………… ii

TABLEOFCONTENTS ………………… iii

TABLEOFAUTHORITIES ……………… v

OPINIONSBELOW …………………… 1

JURISDICTION ……………………… 1

CONSTITUTIONAL AND STATUTORY PROVISIONSINVOLVED ……………. 1

STATEMENT ……………………….. 1 REASONS FOR GRANTING THE PETITION . . . 5

CONCLUSION APPENDIX

Appendix A:

……………………… 28

Opinion/Judgment, United States Court of Appeals for the Sixth Circuit
(June29,2011) ………….. 1a

Appendix B:

Appendix C:

Appendix D:

Appendix E:

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Stipulated Order Dismissing Remaining Claims Without Prejudice, United States District Court for the Eastern District of Michigan

(October21,2010) ………. 92a

Order Denying Plaintiffs’ Motion for Injunction and Dismissing Plaintiffs’ First and Second Claims for Relief [Doc. #7], United States District Court for the Eastern District of Michigan (October7,2010) ……….. 97a

Statutes
26U.S.C.§5000A ……. 121a 42U.S.C.§18022 ……. 133a 42U.S.C.§18091 ……. 143a

Plaintiffs-Appellants Letter Brief, United States Court of Appeals for the Sixth Circuit
(May23,2011) ………… 147a

CASES

v

TABLE OF AUTHORITIES

Bond v. United States,
No. 09-1227, 2011 U.S. LEXIS 4558 (June 16, 2011) ………………………. 2,22,23

City of Chicago v. Morales,
527U.S.41(1999) …………………. 25

Commonwealth of Va. v. Sebelius, 728F.Supp.2d768(E.D.Va.2010) …….. 26

Gibbons v. Ogden,
22U.S.1(1824) ……………………. 9

Gonzales v. Raich,
545U.S.1(2005) ………………..passim

Heart of Atlanta Motel, Inc. v. United States, 379U.S.241(1964) ………….11,13,19,21

Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc.,

452U.S.264(1981) ………………… 10

Katzenbach v. McClung,
379U.S.294(1964) …………… 11,19,21

Perez v. United States,
402U.S.146(1971) ………………… 10

United States v. Evans,
928F.2d858(9thCir.1991) ………….. 13

vi United States v. Lopez,

514U.S.549(1995) ………………passim United States v. Morrison,

529U.S.598(2000) ………………passim United States v. Salerno,

481U.S.739(1987) …………… 25,26,27

Wickard v. Filburn,
317U.S.111(1942) ……….12,15,17,19,21

CONSTITUTION

U.S.Const.art.I,§8,cl.3 …………….. 1,9

STATUTES

26U.S.C.§5000A(a) …………………. 2,3 26U.S.C.§5000A(b) …………………… 3 26 U.S.C. § 5000A(b)(1) . . . . . . . . . . . . . . . . . . . . 2, 4 26U.S.C.§5000A(d)(2)…………………. 3 26U.S.C.§5000A(d)(3)…………………. 3 26U.S.C.§5000A(d)(4)…………………. 3 28U.S.C.§1254(1) ……………………. 1 42 U.S.C. § 18022(b)(1) . . . . . . . . . . . . . . . . . . . . . . 4 42U.S.C.§18091(1) ………………… 2,20

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42U.S.C.§18091(2) ………………….. 21

42U.S.C.§18091(C) ………………….. 27

Pub. L. No. 111-148, 124 Stat. 119 (2010), amended
by Healthcare and Education Reconciliation Act
of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010) ………………………..passim

RULES

Sup.Ct.R.10(c)……………………. 5,28

OTHER AUTHORITIES

Oliver Wendell Holmes, The Path of the Law, 10 Harv.L.Rev.457(1897) ……………… 3

TheFederalistNo.78(A.Hamilton) ……… 2,3

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PETITION FOR WRIT OF CERTIORARI OPINIONS BELOW

The opinion of the court of appeals, App. 1a, appears at 2011 U.S. App. LEXIS 13265 (6th Cir. June 29, 2011). The opinion of the district court, App. 97a, is reported at 720 F. Supp. 2d 882.

JURISDICTION

The judgment of the court of appeals was entered on June 29, 2011. App. 90a-91a. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Commerce Clause authorizes Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. Art. I, § 8, cl. 3.

Relevant statutory provisions are reprinted in the appendix to this petition. App. 121a-146a.

STATEMENT

This case challenges the constitutionality of the individual mandate provision of the Affordable Care Act, which requires private citizens, including Petitioners, to purchase and maintain “minimum essential” healthcare insurance coverage under

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private healthcare insurance during the pendency of this appeal. App. 8a-10a.

Petitioners have arranged their personal affairs such that it will be a hardship for them to have to either pay for health insurance that is not necessary or desirable or face penalties under the Act. App. 9a.

3. Similar to the district court, the Sixth Circuit concluded that all Petitioners have standing to advance this constitutional challenge and that their claims are ripe for review. App. 8a-15a. Moreover, the court concluded that the Anti-Injunction Act does not bar this action. App. 15a-19a.

REASONS FOR GRANTING THE PETITION

1. Review is necessary to establish a meaningful limitation on congressional power under the Commerce Clause. As this Court’s own rules provide, certiorari is appropriate when “a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court.” Sup. Ct. R. 10(c).

As noted by the Congressional Budget Office in August 1994:

A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.

See App. 57a.

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In its order upholding the constitutionality of the individual mandate, the district court acknowledged this historical reality, stating, “The Court has never needed to address the activity/inactivity distinction advanced by plaintiffs because in every Commerce Clause case presented thus far, there has been some sort of activity. In this regard, the [Affordable Care] Act arguably presents an issue of first impression.” App. 114a.

Circuit Judge Sutton and Senior District Judge Graham, sitting by designation, both noted in their respective opinions the need for this Court to address the limits of Congress’s Commerce Clause authority in the context of this case, which has national importance.

In his concurring opinion, Judge Sutton made the following relevant observation:

At one level, past is precedent, and one tilts at hopeless causes in proposing new categorical limits on the commerce power. But there is another way to look at these precedents—that the Court either should stop saying that a meaningful limit on Congress’s commerce powers exists or prove that it is so. The stakes of identifying such a limit are high because the congressional power to regulate is the power to preempt, a power not just to regulate a subject co-extensively with the States but also to wipe out any contrary state laws on the subject. U.S. Const. art. VI, cl. 2. The [Petitioners] present a plausible limiting principle, claiming that a mandate to buy medical insurance crosses a line between regulating action and inaction,

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Judge Graham concluded his dissenting opinion with a cogent explanation for why the Court should grant this petition:

If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be. What aspect of human activity would escape federal power? The ultimate issue in this case is this: Does the notion of federalism still have vitality? To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for-type of economic connection, which nearly all human activity does. . . . Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people. A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment.

App. 88a-89a (dissenting).

2. a. The Court has referred to the principles that establish the fundamental structure of our government embodied in the Constitution, which limits the powers of the federal government to those expressly enumerated, as “first principles”:

We start with first principles. The Constitution creates a Federal Government of enumerated

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powers. As James Madison wrote, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” This constitutionally mandated division of authority was “adopted by the Framers to ensure protection of our fundamental liberties.” Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.

United States v. Lopez, 514 U.S. 549, 552 (1995) (internal citations and quotations omitted).

The first of the discreet enumerated powers of the federal government are set out in Article I, section 8 of the Constitution. The third of this first grouping of powers is the Commerce Clause, which grants Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, §8, cl. 3.

b. From the early days of our Republic until the present, the Court has confronted and grappled with the meaning and scope of the phrase “Commerce . . . among the several States.” In the first of these cases, Gibbons v. Ogden, 22 U.S. 1 (1824), the Court held that “commerce” included more than just the “traffic” of goods from one state to another; it also included the regulation of commercial “intercourse,” such as navigation on the country’s waterways. Id. at 189-90.

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interstate commerce, simply because it is an integral part of a broader statutory scheme that permissibly regulates interstate commerce. The two model cases of this sort—bookends separated by more than 60 years—are Wickard v. Filburn, 317 U.S. 111 (1942), and Gonzales v. Raich, 545 U.S. 1 (2005).

In Wickard, the Court held that a regulatory scheme permissibly regulating commercial, interstate agricultural activity could properly capture the non- commercial, economic activity of individual wheat farmers growing wheat for their own personal consumption precisely because this activity could have an adverse affect on the regulatory scheme’s price control mechanisms. Similarly, in Raich, the Court concluded, relying in large part on Wickard, that non- commercial, home-grown, medicinal marijuana was permissibly captured by the legislative regulatory scheme because Congress could rationally conclude that some of this marijuana would leak into the illegal interstate commercial market, which was the central target of the statutory scheme.

Vexation is inescapable, however, because nestled in between Wickard and Raich are two modern cases which are widely understood to cabin the Commerce Clause’s reach by prohibiting the federal regulation of purely local, non-commercial activity. Both United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), invalidated federal statutes which sought impermissibly to regulate purely local, non-commercial activity—activity Congress had concluded quite rationally could affect interstate commerce. Specifically, in Lopez, the Court confronted the Gun-Free School Zone Act of 1990, which criminalized possession of a gun within a

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statutorily defined school zone. It is worth a moment’s pause here to follow the Court’s reasoning in rejecting the Commerce Clause’s reach into this domain of non- commercial activity:

The Government’s essential contention, in fine, is that we may determine here that § 922(q) is valid because possession of a firearm in a local school zone does indeed substantially affect interstate commerce. The Government argues that possession of a firearm in a school zone may result in violent crime and that violent crime can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. [United States v. Evans, 928 F.2d 858, 862 (9th Cir. 1991)]. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe. [Cf. Heart of Atlanta Motel, Inc., 379 U.S. at 253]. The Government also argues that the presence of guns in schools poses a substantial threat to the educational process by threatening the learning environment. A handicapped educational process, in turn, will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation’s economic well-being. As a result, the Government argues that Congress could rationally have concluded that § 922(q) substantially affects interstate commerce.

We pause to consider the implications of the Government’s arguments. The Government

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admits, under its “costs of crime” reasoning, that Congress could regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce. Similarly, under the Government’s “national productivity” reasoning, Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the theories that the Government presents in support of § 922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.

Lopez, 514 U.S. at 563-64 (1995) (internal citations and references omitted) (emphasis added).

What is striking about Lopez is that it can hardly be argued that it was irrational for Congress to have concluded that possessing guns near schools would affect interstate commerce. It is no less of an “effect” than the possible leakage of private, homegrown, medicinal marijuana fully regulated by California. But what is apparent from the lengthy quote above is that the Lopez Court understood that if the multi- tiered inference required to move from gun possession to an “effect” on interstate commerce was an appropriate nexus for upholding the constitutionality

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of a regulation, that inference would obliterate the Constitution’s enumeration of powers.

Morrison’s result was similar and no less vexatious for the older Wickard and the yet to be rendered Raich. This is especially true because in Morrison, unlike in Lopez, Congress had made a host of explicit findings supporting its legislation allowing a federal private right of action for a woman violently assaulted in a “gender-based” crime. There the Court held:

In contrast with the lack of congressional findings that we faced in Lopez, § 13981 is supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families. But the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. As we stated in Lopez, “Simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.” Rather, “whether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.”

In these cases, Congress’s findings are substantially weakened by the fact that they rely so heavily on a method of reasoning that we have already rejected as unworkable if we are to maintain the Constitution’s enumeration of powers. Congress found that gender-motivated

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violence affects interstate commerce “by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce; . . . by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products.” Given these findings and petitioners’ arguments, the concern that we expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Constitution’s distinction between national and local authority seems well founded. The reasoning that petitioners advance seeks to follow the but-for causal chain from the initial occurrence of violent crime (the suppression of which has always been the prime object of the States’ police power) to every attenuated effect upon interstate commerce. If accepted, petitioners’ reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence since gender-motivated violence, as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part.

Morrison, 529 U.S. at 614-15 (internal quotations and citations omitted).

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Ultimately, the majority opinion in Raich struggled mightily with the third prong of the Commerce Clause. This struggle was necessitated by the incongruity and inconsistency of the Court’s own jurisprudence. One version of the Commerce Clause forbade federal regulation to reach non-economic, local activity even if that activity in the aggregate might very well materially impact interstate commerce (per Lopez and Morrison). The other version of the Commerce Clause was understood to reach wholly private, non- commercial activity, like growing your own wheat or cultivating your own personal marijuana for medicinal purposes, neither of which might ever actually affect interstate commerce (per Wickard and Raich). But, thankfully, Raich does not leave the vexing problem unattended.

The Court in Raich suggested how to reconcile the differences between these two pairs of Commerce Clause decisions. This reconciliation rests in the distinction between economic activities and non- economic activities. The legislation at issue in Lopez and Morrison impermissibly dealt with local criminal behavior that was rooted in violence, but which had no necessary economic nexus as an activity. That is, the carrying of a gun or violence against a woman is not economic activity in any generic way. Wickard and Raich, however, permissibly regulated local, non- commercial activity because the cultivation of an agricultural product and a regulated drug were intrinsically economic activities. In the Court’s own words:

Despite congressional findings that such crimes [violence against women in Morrison] had an adverse impact on interstate commerce, we held

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the statute unconstitutional because, like the statute in Lopez, it did not regulate economic activity. We concluded that “the noneconomic, criminal nature of the conduct at issue was central to our decision” in Lopez, and that our prior cases had identified a clear pattern of analysis: “Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.” [Morrison, 529 U.S. at 610].

Unlike those at issue in Lopez and Morrison, the activities regulated by the [Controlled Substances Act (“CSA”), which criminalized even private, medicinal marijuana,] are quintessentially economic. “Economics” refers to “the production, distribution, and consumption of commodities.” Webster’s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product. Such prohibitions include specific decisions requiring that a drug be withdrawn from the market as a result of the failure to comply with regulatory requirements as well as decisions excluding Schedule I drugs entirely from the market. Because the CSA is a statute that directly regulates economic, commercial

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activity, our opinion in Morrison casts no doubt on its constitutionality.

Raich, 545 U.S. at 25-26 (emphasis added).

The point of this Commerce Clause analysis, whether in the expansive rulings of Wickard and Raich or the more careful federalism-sensitive rulings of Lopez and Morrison, is that these cases and every single other Commerce Clause decision since this Nation’s founding unanimously and explicitly hold that congressional power under this clause is strictly and absolutely limited to some kind of affirmative behavior or activity. Whether it’s the “economic activity” of the non-commercial growing of wheat (Wickard) or marijuana (Raich) within the permissible legislative scheme or the commercial activity of providing lodging and food services to interstate travelers in Heart of Atlanta Motel or Katzenbach, before Congress can reach you through the Commerce Clause, you must be engaged in some affirmative activity.

Moreover, as confirmed by Lopez, Morrison, and Raich, activity alone (like possessing a gun or assaulting a woman)—even if it will affect interstate commerce in the aggregate over time—is not enough to cross the Commerce Clause Rubicon. The activity must be economic. But this means, at the very least, that there must be some activity to apply the Commerce Clause analysis. And, as Lopez, Morrison, and Raich make clear, that activity must in and of itself be economic even if it need not be commercial.

3. a. The Act does not regulate economic activity, but rather the decision to not engage in commercial or

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economic activity. Consequently, the Act does not even pretend to fit within any of the Court’s previous Commerce Clause rulings. The individual mandate attaches to a legal resident of the United States who chooses to sit at home and do nothing. This resident, quite literally, merely exists (i.e., he is “living” and “breathing”). See App. 116a. He or she is neither engaged in economic activity nor in any other activity that would bring him or her within the reach of even a legitimate regulatory scheme. Lopez, 514 U.S. at 561 (holding that the non-commercial activity must be an “essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated”) (emphasis added). In this case, we have neither economics nor activities.

b. The Act purports to provide legislative findings to support Congress’s authority to enact the individual mandate under the Commerce Clause. According to the Act: “The individual responsibility requirement provided for in this section . . . is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).” 42 U.S.C. § 18091(1); App. 143a. Paragraph (2) sets forth various “[e]ffects on the national economy and interstate commerce” to support mandating the “individual responsibility requirement.” These findings make statements about the general economic and commercial impact healthcare and healthcare insurance has on the national economy and how much of that impact is harmful to healthcare generally and to the individual specifically. The legislative findings conclude by suggesting that the proposed legislation ameliorates

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these deleterious effects of the current system. See 42 U.S.C. § 18091(2); App. 143a-146a.

But none of these legislative findings are at all relevant to the issue this lawsuit raises as a matter of law: whether the federal government has authority under the Commerce Clause to force Petitioners and other similarly situated persons to purchase and maintain a required level of insurance coverage or suffer the consequences of a federally-imposed penalty.

Indisputably, Petitioners without healthcare insurance—as volitionally uninsured legal residents of the United States—are not now engaged in any commercial or economic activity that affects in any way interstate commerce. This is because, unlike Wickard and Raich, or Heart of Atlanta Motel and Katzenbach, Petitioners are not engaged in any economic activity whatsoever relative to the legislative findings of the Act or the regulatory scheme of the Act—essential or otherwise.

As the Court forcefully pointed out in both Lopez and Morrison, the national government is restrained and constrained by federalism not to go beyond its discreet and enumerated powers. This fundamental requirement of our federal government, which is and remains the law of the land, was described by the Court as a “first principle.” Under the Commerce Clause, Congress is limited to regulating at the far reaches of its authority only local economic activity that it rationally determines is an “essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” See Lopez, 514 U.S. at 561 (emphasis added).

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based on presumed future economic activity—activity that has not yet occurred and, indeed, may never occur. But this effort to make “healthcare” a kind of sui generis economic activity based on presumed future behavior is not justified by the Court’s Commerce Clause jurisprudence nor does it provide a cogent brake to, or principled limitation upon, the federal government’s claim of unrestrained plenary power to mandate all sorts of behavior, present and future, to curb healthcare costs. Simply because a particular market might be unique in some fashion can’t be a basis for extending Congress’s Commerce Clause authority to include regulating decisions (and even indecision) affecting that market. Indeed, the same could be said about the “food” market since every living, breathing person must participate in that market at some level or else they would perish. Does the Constitution permit Congress to force private citizens to purchase “health” foods which they wouldn’t otherwise purchase under penalty of federal law? Moreover, precisely because the healthcare market is unlike any other market in that a person’s health is arguably affected by almost every decision made on a daily basis, including whether to take vitamins, to exercise, to maintain a certain body weight, etc., permitting Congress to regulate decisions affecting a person’s health gives Congress unbridled power and thus obliterates the very structure of our constitutional Republic.

In sum, the Court should grant the petition to establish a meaningful limitation on congressional power under the Commerce Clause.

4. Review is also necessary to determine whether the individual mandate is unconstitutional as applied

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to those Petitioners who do not have “minimum essential” healthcare coverage. As Petitioners argued below, this case challenges the authority of Congress to enact the individual mandate provision. App. 163a. That is, Petitioners challenge Congress’s authority to force them—private citizens who are not by any measure engaged in any relevant commerce—to purchase “minimum essential” healthcare insurance coverage as a matter of federal law. App. 163a. Consequently, this case could properly be viewed as an “as-applied” challenge. App. 163a. However, by their very nature, almost all challenges to the specific exercise of an enumerated power, such as the Commerce Clause, are facial challenges. Thus, if Congress lacked the authority to enact certain legislation, such as the individual mandate, that legislation adversely affects everyone in every application. In light of this reality, it does not appear that the “no set of circumstances” language of United States v. Salerno, 481 U.S. 739, 745 (1987), has any practical impact on the resolution of this case. As the Court stated in City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999), “To the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court, including Salerno itself.”

In United States v. Salerno, 481 U.S. 739, 745 (1987), the Court stated,

A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that the [Act]

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might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an “overbreadth” doctrine outside the limited context of the First Amendment.

As Salerno itself suggests, if Congress lacked enumerated authority to pass legislation at its inception, as in this case, then there would be “no set of circumstances . . . under which the Act would be valid.” Thus, there would be no “conceivable set of circumstances” under which the Act could be enforced because there was no authority to enact the legislation in the first instance—the law is “legally stillborn.” See Commonwealth of Va. v. Sebelius, 728 F. Supp. 2d 768, 773-74 (E.D. Va. 2010); see also App. 74a (dissenting).

Indeed, the Court did not cite Salerno, let alone apply it, in either United States v. Lopez, 514 U.S. 549 (1995), or United States v. Morrison, 529 U.S. 598 (2000), cases in which the Court held that Congress exceeded its Commerce Clause authority by enacting certain legislation. Nor did the Court cite to Salerno in the more recent Commerce Clause case of Gonzales v. Raich, 545 U.S. 1 (2005).

Nonetheless, in his concurring opinion, which provided the narrowest grounds for upholding the individual mandate, Judge Sutton held that Petitioners’ challenge was essentially “undone by United States v. Salerno, 481 U.S. 739, 745 (1987).” App. 74a (dissenting). That is, Judge Sutton viewed the constitutional question regarding Congress’s authority to force private citizens to purchase and maintain “minimum essential” healthcare insurance coverage through the “no set of circumstances” prism

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of Salerno—a view that “favor[ed] the government.” App. 51a-52a. In doing so, Judge Sutton essentially rewrote the individual mandate by placing limits on the challenged authority of Congress that Congress itself did not impose under the Act. See App. 72a (concluding that the individual mandate was constitutional as applied to (1) individuals who voluntarily purchased insurance and wanted to maintain it, but not at the “minimum essential” coverage limits, (2) individuals who voluntarily purchased insurance, but who did not want to be forced to maintain it at any level of coverage, (3) individuals living in States that already required them to purchase insurance, and (4) individuals under 30 who can satisfy the requirement by purchasing catastrophic-care coverage). Indeed, Congress granted itself much greater authority to regulate private citizens because that was its intent: to increase the pool of insured by requiring those with no insurance to purchase “minimum essential” coverage or pay a penalty. See 42 U.S.C. § 18091(C) (finding that the individual mandate “will add millions of new consumers to the health insurance market, increasing the supply of, and demand for, health care services, and will increase the number and share of Americans who are insured”); App. 144a. Aside from Judge Sutton’s fourth example of “catastrophic-care coverage” not yet purchased, every application of Congress’s Commerce Clause power cited by him involved a hypothetical in which the citizen was actually engaged in commerce (i.e., the citizen purchased insurance and/or was covered by an existing insurance plan). By applying Salerno to this case in the fashion employed by Judge Sutton, he—and thus the court—essentially avoided answering the fundamental question of whether Congress acted within its Commerce Clause

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power when it passed legislation requiring nearly all citizens, notably those without insurance, to purchase and maintain health insurance coverage beginning in 2014. Consequently, the Court should grant the petition to answer this important question of federal law, see Sup. Ct. R. 10(c)—and answer it in the negative.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

ROBERT JOSEPH MUISE

Counsel of Record

Thomas More Law Center
24 Frank Lloyd Wright Drive P.O. Box 393
Ann Arbor, MI 48106
Tel: (734) 827-2001
Fax: (734) 930-7160 rmuise@thomasmore.org

DAVID YERUSHALMI
Law Offices of David Yerushalmi, P.C. P.O. Box 6358
Chandler, AZ 85246
Tel: (646) 262-0500

Counsel for Petitioners

Click Here to Read the Law Center’s Entire Petition for Writ of Certiorari.