Senators Challenge Mandate

Amicus Brief: ‘If Congress May Punish A Decision To Refrain From Engaging In A Private Activity… Then The Congress Can Require The Purchase Of Virtually Anything’


43 Sens: ‘Congress Acted Without Constitutional Authority In Enacting The Individual Mandate’

“Put simply, Congress acted without constitutional authority in enacting the Individual Mandate of the PPACA. … Because the Individual Mandate regulates a simple decision or choice not to purchase a particular product, it exceeds the proper scope of the Commerce Clause.” (Brief Of 43 U.S. Senators As Amicus Curiae, HHS v. Florida, Et Al., 2/13/12)

  • “If Congress may punish a decision to refrain from engaging in a private activity (namely, the purchase of health insurance) because the consequences of not engaging in it, in the aggregate, could substantially affect interstate commerce, then the Congress can require the purchase of virtually anything.” (Brief Of 43 U.S. Senators As Amicus Curiae, HHS v. Florida, Et Al., 2/13/12)


‘An Unprecedented’ & ‘Novel Exercise Of Commerce Clause Power’

11TH CIRCUIT COURT: “Economic mandates such as the one contained in the Act are so unprecedented, however, that the government has been unable, either in its briefs or at oral argument, to point this Court to Supreme Court precedent that addresses their constitutionality. Nor does our independent review reveal such a precedent.” (Florida v. United States HHS, 648 F.3d 1235, 1288 (11th Cir. 2011))

D.C. CIRCUIT COURT: “The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause.” (Seven-Sky v. Holder, 661 F.3d 1, 14-15 (D.C. Cir. 2011)

6TH CIRCUIT COURT: “The mandate is a novel exercise of Commerce Clause power. No prior exercise of that power has required individuals to purchase a good or service.” (Thomas More Law Center v. Obama, 651 F.3d 529, 567 (6th Cir. 2011))

EASTERN DISTRICT OF VIRGINIA COURT: “…the Minimum Essential Coverage Provision appears to forge new ground and extends the Commerce Clause powers beyond its current high water mark.” (Virginia v. Sebelius, 728 F. Supp. 2d 768, 775 (E.D. Va. 2010))

NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION COURT: “Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States.” (“Plaintiffs, v. United States HHS, (N.D. Fla. 2011))

CRS: “However, a requirement could be imposed on some individuals who do not engage in any economic activity relating to the health insurance market. This is a novel issue: whether Congress can use its Commerce Clause authority to require a person to buy a good or a service and whether this type of required participation can be considered economic activity.” (”Requiring Individuals To Obtain Health Insurance: A Constitutional Analysis,” CRS Report, P. 11-12, 5/7/10)

  • “… it may seem like too much of a bootstrap to force individuals into the health insurance market and then use their participation in that market to say  they are engaging in commerce…” (”Requiring Individuals To Obtain Health Insurance: A Constitutional Analysis,” CRS Report, P. 12, 5/7/10)

CBO: “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.” (“The Budgetary Treatment Of An Individual Mandate To Buy Health Insurance,” CBO Report, P.1, 8/94)