Yesterday, I and representatives from several pro-freedom organizations filed this amicus brief in Seven-Sky v. Holder, the latest Court of Appeals case about the constitutionality of the Patient Protection and Affordable Care Act. I also filed briefs in the Fourth Circuit case and the Eleventh Circuit case. The briefs cover different—and very interesting—issues.
As I blogged before, a major question in the Fourth Circuit case is whether the state of Virginia has standing to challenge PPACA as an infringement on the state’s sovereign power to articulate and defend individual rights. Indeed, the oral argument earlier this month centered almost entirely around this question.
The Eleventh Circuit case—that’s the big case in which more than half of the states argue that the law is unconstitutional—as well as the D.C. Circuit case present fascinating questions about the reach of the Commerce Clause and the Necessary and Proper Clause. Our D.C. Circuit brief focuses almost entirely on the latter, arguing that while the economic/non-economic distinction that the Court developed in Lopez and Morrison limits what qualifies as “commerce…among the several states” under the Commerce Clause, the activity/inactivity distinction limits what qualifies as “necessary and proper” federal power under the Necessary and Proper Clause. Like many other tools that lawyers use to cut off indefinitely long chains of causality and inference, the economic/non-economic distinction and the activity/inactivity distinction advance important purposes: promoting the Constitution’s purpose of limiting federal authority to enumerated powers instead of a general police power, while requiring only limited judicial interference, and giving courts judicially manageable standards to follow while doing so.