May 6, 2011 5:33PM

When Fighting ObamaCare, the Pen Is Mightier…

On Wednesday, the opening brief for the 26 states challenging ObamaCare was filed in the Eleventh Circuit. Also filed was the brief for the co-plaintiff, the National Federation of Independent Business. (Ilya Shapiro previously blogged about the filings here.) The government is appealing from Judge Roger Vinson’s stirring decision striking down all of the Affordable Care Act (ACA). (An edited version of that decision is available here.)

Because the challenge to Obamacare is the most important constitutional question in many decades, and because the case will have substantial ramifications for the health of our citizens as well as the health of our system of supposedly limited government, Cato is breaking protocol (we usually just get involved at the Supreme Court level) and filing amicus briefs in nearly every circuit in which a challenge is being made, at nearly every stage of litigation. Next week, we will also be filing in the Eleventh Circuit.

The states' brief and the NFIB brief are excellent examples of persuasive writing, nuanced legal reasoning, and in-depth research. After 70+ years of judicial abdication and constitutional misinterpretation, we need good lawyering on our side. With the first principles of the Constitution largely forgotten, we have to play the hand that the Court has dealt us.

In these briefs, the lawyers have played their hands exceptionally well. Effective legal writing will maintain momentum while remaining persuasively rooted in law. A good turn-of-phrase doesn’t hurt either. The briefs are replete with great examples of both.

Recall that the litigation mostly concerns whether the so-called “individual mandate” — a part of the act that requires every citizen, with a few narrow exceptions, to maintain a qualifying health insurance plan or suffer a fine — is within Congress’s power to regulate interstate commerce. Even with the breadth that the Commerce Clause has been given since the New Deal, no case has allowed Congress to conscript citizens into commercial transactions, regulate them, and then blithely call it an ordinary regulation of commerce.

The government claims that the uninsured have a “substantial effect” on interstate commerce and thus fall under congressional power. The NFIB brief analogizes it this way:

[W]hereas the “substantial effects” doctrine would allow Congress to regulate local bootleggers because of their aggregate effect on the interstate liquor market, the uninsured “affect” the health-insurance market only as a teetotaler affects the liquor market, and the power to regulate bootleggers does not imply the power to conscript teetotalers.

Interestingly, as recently as 1920 Congress did not believe it even had the power to ban alcohol (“conscript teetotalers?”) absent a constitutional amendment. Now, Congress thinks it can make us buy health insurance.

I’m particularly fond of how the NFIB brief accurately characterizes the government as defending a “hypothetical statute”:

The Government’s principal argument attempts to recharacterize the mandate as a regulation of the economic activity of obtaining healthcare while uninsured. But the mandate does not regulate that commercial practice. Rather, it regulates the status of being uninsured, regardless of whether healthcare is obtained, let alone obtained without compensation. It is legally irrelevant that some sub-class of the uninsured will receive uncompensated care, for Congress cannot bootstrap from that proscribable practice to the substantially broader class of uninsured individuals who do not engage in it.

As Michael Cannon tirelessly points out, the “centerpiece of ObamaCare is a three-legged stool, comprised of the individual mandate, the government price controls that compress health insurance premiums, and the massive new subsidies to help Americans comply with the mandate.” Without the individual mandate forcing citizens to diversify the risk pool, ObamaCare will fail even more spectacularly than otherwise.

This fact has become a centerpiece of the government’s arguments for ObamaCare — that the individual mandate remedies the “substantial effects” of the uninsured and thus makes it a “necessary and proper” use of Congress’s commerce power. Of course, the uninsured only have these constitutionally significant “substantial effects” in the context of the rest of Obamacare. In the biting words of the NFIB brief:

[I]t is irrelevant for “substantial effects” purposes that insurers want subsidies to offset losses stemming from the ACA’s requirements to insure sick individuals. Market non-participants do not negatively “affect” commerce simply because sellers’ woes are attributable to costly government regulation rather than normal free-market conditions. The non-participants are not harming the insurance market; they simply are not ameliorating the government’s own market interference.

The states’ brief is equally impressive. Reaching down to the core principles of limited government that the individual mandate threatens, the brief looks at the ramifications of upholding the law:

Congress’s “plenary” regulatory authority over matters within the scope of its commerce power is strong evidence that Congress may not drag unwilling individuals within the scope of that power. Congress has “direct and plenary powers of legislation over the whole subject” of interstate commerce and therefore “has the power to pass laws for regulating the subjects specified, in every detail, and the conduct and transactions of individuals [in] respect thereof.” Indeed, Congress has “full control” of “the subjects committed to its regulation.” If the Constitution gave Congress authority to draft individuals not just for military service, but for any activity directly affecting interstate commerce, and then to exercise full control over them, the Framers surely would have proposed far more protections in the Bill of Rights or rejected this dangerous new power altogether. But they did neither, precisely because the commerce power was not some vortex of authority that rendered the entire process of enumeration beside the point.

I commend all the attorneys involved for a job well done. If you are at all legally minded, I suggest reading both the briefs in their entirety. There are plenty of other bon mots to savor. For further reading, Cato Institute Chairman Robert Levy’s new white paper gives a non-technical overview of the legal arguments against ObamaCare.