The States filed their Response Brief yesterday on the minimum coverage provision. They make three main points:
1. Protect individual liberty, not just through the Bill of Rights, but also through the structural provisions of the Constitution. In other words, a narrower interpretation of the Commerce Clause protects individual liberty. My colleague Abby Moncrieff’s recent paper explores this question at length. Her paper will appear in the Florida Law Review, quite appropriate given the lead plaintiff. The states’ rhetoric is quite hot:
“… the mandate’s threat to liberty is obvious. The power to compel a person to enter into an unwanted commercial relationship is not some modest step necessary and proper to perfect Congress’ authority to regulate existing commercial intercourse. It is a revolution in the relationship between the central government and the governed.” (at 1, emphasis added)
2. Activity/Inactivity is reincarnated, this time finding the distinction embedded in the verbs in Article I – ie Congress is granted the power “to coin” money, “to establish” post offices and to “provide and maintain a Navy,” but nowhere is Congress given the power to “create or compel” commerce. In this latest formulation, the states concede the Commerce Clause case law on the substantial effects doctrine, focusing instead on finding a distinction that will win over Kennedy and Scalia, given their past opinions. A parade of horribles follows, including a federal mandate that everyone get a biannual dental check up (at 26) and mandatory car purchasing instead of the cash for clunkers program (at 12). Missing from the list? Broccoli. Yes, this brief is a broccoli-free zone.
3. The penalty might be a tax, but the mandate isn’t. A clever argument, driving a wedge between the subsections of the ACA (at 52-53). The states have made arguments in several briefs that the mandate still applies to poor people who are exempt from the penalty. I expect to see more of this during the oral argument on severability, where the states will ask for the entire ACA to go down in flames if one provision is found unconstitutional.
Other tidbits:
- Paul Starr’s article in TNR on the mandate is quoted to show Congress has other ways to fix adverse selection (at 50). Seems fair, since the government quoted the Heritage Foundation’s support for the mandate in a prior brief.
- Kennedy received 10 named quotes; Scalia 2; no other living Justice received a mention. Can you guess who are the contested votes on this issue?
KO
