Rivkin’s Opening Oral Arguments from Florida (Dec. 16)


Oral Argument in plaintiffs’ motion for summary judgment

Dec. 16, 2010 – Pensacola, Florida.

Rivkin (seated middle) during Dec. 16 hearing in Pensacola. By Chris Hsu.


May it please the Court,

To sustain the Individual Mandate, the Defendants assert a view of the Commerce Clause that obliterates any distinction between the national and the local, and transforms Congress’ power to regulate interstate commerce into a general federal police power.  Congress can achieve many things in the public good, but it must always act by and through its enumerated powers.  It cannot, however, exercise a general police power, however laudable its goals might be goals might be.

There are three issues at the heart of this case: the basic principle that the Commerce Clause empowers Congress to regulate only activities undertaken in, or which have a substantial affect on, interstate commerce; the Constitution’s clear reservation of a general police power to the States alone; and the limits of the Necessary and Proper Clause.

First, commerce requires activity.  Individuals cannot be regulated under the Commerce Clause unless they are first voluntarily engaged in some activity that Congress can otherwise reach.  The Supreme Court’s case law on this point has been perfectly consistent over decades, defining even the outer reaches of the commerce power in terms of “activities” and “conduct.”  In Jones & Laughlin Steel, from 1937, the Court spoke of “the activities of commerce.”  In Wickard, from 1942, the Court premised its decision on “the effects of . . . intrastate activity upon interstate commerce.”  And in the Supreme Court’s most recent pronouncement on the commerce power, Raich, the Court applied the usual rule that “Congress has the power to regulate activities that substantially affect interstate commerce.”

This language is not obiter dictum, as Defendants suggest, but the starting point of the Court’s analysis in each case.  Defendants have been unable to identify any pre-ACA contrary authority – even in the form of dicta – suggesting that Congress can impose requirements on individual Americans because their failure to act has impacted some aspect of the nation’s economy.  Defendants’ argument that absence of the uninsured has significant secondary effects – what economists call externalities – on the national health insurance market is constitutionally irrelevant.

Moreover, such “externalities” are inherent in every market, and the absence of any significant part of the population from any market will make it less vibrant that it might otherwise be.  Indeed, each and every aspect of human behavior has at some level an economic consequence.  Defendants’ response is to assert that the market for health care services has a unique “combination of features” which permits Congress to require individuals to participate only in this market.

This combination of features is not, however unique, being present in numerous other markets.  It also does not function as a viable judicially enforceable set of limiting principles.  And, these randomly chosen pseudo-limiting principles are bereft of any constitutional significance.

Certainly, Defendants’ claim that their version of the commerce power only extends to individuals “active” within a particular narrowly defined market segment falls under its own weight.  This is both because, under Defendants’ logic, everybody is always continuously “active” in a variety of markets, and because Defendants freely conflate different markets together.

Second, Congress necessarily lacks the power to impose an Individual Mandate because any power sufficient to support it under the Commerce Clause would entirely supplant the general police power reserved to the States.

Compelling inactive persons to act, whether to obtain a smallpox vaccination or buy health care insurance, simply because they are present in a particular jurisdiction, regardless of any link to commerce or other type of activity, is the defining feature of a general police power.  The Supreme Court has consistently rejected interpretations of the commerce power that would create a general federal police power – interpretations, in Chief Justice Rehnquist’s words, that leave the court “hard pressed to posit any activity by an individual that Congress is without power to regulate.”

Defendants have yet to articulate any meaningful and judicially enforceable limiting principle that, when applied to the broad commerce power they posit, would “withhold from Congress,” in the words of the Lopez decision “a plenary police power that would authorize enactment of every type of legislation.”  There simply is no such limiting principle.

Finally, the Individual Mandate is not a valid exercise of the Necessary and Proper Clause, an argument upon which the Defendants have come to rely almost exclusively in their most recent pleadings.  As the Supreme Court reaffirmed this May in the Comstock case, the Necessary and Proper Clause gives Congress the power to effect or implement otherwise legitimate exercises of its enumerated powers.  As a result, the Individual Mandate cannot be supported by the Necessary and Proper Clause because it does not effect or implement a legitimate exercise of the power to regulate interstate commerce.

Congress cannot reach individuals who are not engaged in some properly regulable activity under the Commerce Clause and, therefore, it cannot reach such individuals under the Necessary and Proper Clause.

Defendants’ efforts to avoid this inevitable conclusion, by arguing that the mandate gives effect to the ACA’s insurance industry regulations, also fail.  Those provisions are in no sense dependent on the mandate for their implementation or enforcement, and are effective regulations of the insurance industry in and of themselves.  Defendants cannot dispute this point, which is fatal to their Necessary and Proper Clause argument.

Instead they argue that the Individual Mandate will help to achieve Congress’s objectives of “banning harmful practices in the interstate insurance industry and ameliorating the crisis in the interstate healthcare market,” which are “clearly within the ambit of the legitimate objectives authorized by the Commerce Clause.”

But the Necessary and Proper Clause does not give Congress any power it may need (or want) to achieve its goals or objectives, it only provides the means to implement or effectuate the actual exercise of its enumerated powers.

This alone is sufficient to distinguish the mandate from other cases in which the Necessary and Proper Clause was used to carry out the regulation of intrastate activity.  In Raich, for example, the ban on interstate production, sale, and possession of marijuana would have been unenforceable without the ability to reach intrastate conduct, given that intrastate production, sale, and possession of marijuana could not be “hermetically sealed off from the larger interstate marijuana market.”

In this respect, the mandate is also unlike the type of books and records requirements challenged in Darby, which were essential to enforce the Fair Labor Standards Act’s wage and hour provisions.  Without record-keeping and regular audits, wage and hour regulation would have been impossible to implement, a dead letter.

Congress cannot, in other words, use the Necessary and Proper Clause to bridge the gap between legitimate regulations under its enumerated powers that do not achieve its otherwise unreachable objectives, and those goals themselves.  Such an approach would turn the Necessary and Proper Clause on its head.  If the Necessary and Proper Clause can operate to achieve congressional goals, decoupled from what may be necessary to implement or effect the legitimate exercise of an enumerated power, then the Necessary and Proper Clause too becomes a general police power.

Such a construction of the Necessary and Proper Clause would also render much of Article I section 8’s grants of enumerated powers mere surplusage, since those other powers would have been unnecessary if the Necessary and Proper Clause, when coupled with the Commerce Clause, would have been a sufficient grant to cover those other powers.  This would violate one of the key canons of constitutional interpretation, articulated in Marbury v. Madison, and as well as render incoherent numerous other constitutional clauses whose workings depend upon the continued existence of dual sovereignty system,

In this regard, of course, the Individual Mandate also is not “proper.”  To permit Congress the power to impose requirements like the mandate on individuals who are not otherwise engaged in a properly regulable activity, simply on the pretext that their participation in a particular market or activity is necessary or expedient to achieve Congress’s overall legislative goals, also eliminates any area in which the States remain supreme.  This is fundamentally inconsistent with the Constitution’s federalist structure and design, and in and of itself renders the mandate improper.

Permitting this use of the Necessary and Proper Clause is also inconsistent with Congress’s own, longstanding understanding of the limits of its commerce powers.  No previous Congress ever attempted to achieve its goals, however important, by simply ordering individual Americans to engage in commercial activity if they have otherwise chosen to remain inactive.

Before passage of the Individual Mandate, Congress acted indirectly (by adopting various regulations of commercial activity) to achieve its objectives.  To put an end to the practice of child labor, for example, it barred the introduction into commerce of goods manufactured by children.   To protect individuals living in flood zones, it made flood insurance a condition of obtaining a loan from a federally regulated bank.  To emphasize, Congress did not claim the power to directly require the end it sought, mandating that everyone who has a house in the flood zone must have flood insurance, even though it would have been a far more direct and effective means of achieving its goal.

This speaks volumes.  Defendants offer a new and truly radical interpretation of the commerce power that would eliminate any limit on congressional power beyond those in the Bill of Rights.  But the Constitution also limits federal power structurally, by requiring Congress to remain within the authority it was specifically granted, its enumerated powers.  The Court should reject this invitation to remake the very architecture of American government.

Because it is beyond Congress’s constitutional power to enact, the Individual Mandate cannot be applied constitutionally in any circumstance contemplated under the ACA.  There are no material facts in dispute and we ask, therefore, that the Court grant Plaintiffs’ motion for summary judgment, striking down the mandate and the ACA, for which it is the unseverable keystone, as a matter of law and enjoining their implementation.


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