On Wednesday the Thomas More Law Center filed its petition for a writ of certiorari with the Supreme Court seeking review of the controversial Health Care reform law.  The full petition can be read here.  At least twenty cases across the country challenged the constitutionality of the Patient Protection and Affordable Care Act (PPACA), known to many as Obamacare.  The litigation is reported in detail by all major news outfits.  The Thomas More appeal is the first such case to reach the Supreme Court from the circuit level, following the Sixth Circuit’s panel decision in late June.  See Thomas More Law Center, et al. v. Obama, et al., No. 10-2338 (6th Cir. June 29, 2011).  In that decision, the Sixth Circuit’s three-judge panel arrived at a split decision, with two judges favoring the constitutionality of the law’s “individual mandate.”  The mandate requires all United States citizens to purchase private health insurance by 2014 or pay civil penalties up to $695 per year.  The Thomas More Center, on behalf of three individuals, argues that the mandate broadly expands the federal government’s commerce clause power beyond any limitations and, thus, violates Article I of the Constitution.  While the Sixth Circuit favored the law’s constitutionality, the split decision did not formally uphold the law.

On behalf of the U.S.Citizens Association (USCA), Emord & Associates pursued a similar challenge in the U.S. District Court for the District of Ohio.  Copies of relevant pleadings in that case can be accessed on our homepage here.  The USCA argues that the mandate, even if authorized under Article I, violates citizens’ individual liberties guaranteed in the Bill of Rights.  That appeal is fully briefed and pending decision in the Sixth Circuit.  See U.S. Citizens Association et al, v. Sebelius, et al., No. 11-3327 (6th Cir.).

Many believe the novel issues raised by the individual mandate must be resolved by the Supreme Court.  In particular, Supreme Court Commerce Clause precedent suffers from inconsistency over the past two decades.  The Rehnquist Court’s decisions in Lopez and Morrison brought new life to Article I’s limits on federal government power to regulate commerce, particularly non-economic activities that bear no relationship to interstate commerce.  But the Court’s retreat in Raich and Comstock appears to isolate the Lopez and Morrison decisions.

While the Thomas More petition for cert is the first to reach the Supreme Court level, immediate action by the Court is unlikely.  Several similar claims are pending decision in the circuit courts, including the two appeals lodged by State Attorneys General in Virginia and Florida.  The Supreme Court’s summer recess ends October 3rd.  The government has 30 days to file a response to the petition, and the government may request an extension.  Thus, activity is unlikely until at least late November.  The Court may wait until the Eleventh and Fourth Circuits have ruled so that a potential circuit split can be addressed in full.

The Thomas More petitioners have added an “as-applied” challenge to their petition before the Supreme Court.  Although Thomas More did not present the argument before the Sixth Circuit, the petitioners now claim that the individual mandate is unconstitutional as applied to the three individually named plaintiffs.  Thomas More may be keying on Judge Sutton’s discussion at oral argument when he questioned the fairness of Congress’s findings.  Congress premised the need for legislation on the $43 billion in annual uncompensated care.  Although much of that is charged to indigent citizens without ability to afford care, Congress nonetheless forced all citizens to purchase health insurance and then exempted lower income citizens from the Act (even though those exempted citizens are largely responsible for the harm).  Judge Sutton found that ironic.  Moreover, in his published opinion, he carefully limited his decision to the facial challenge, and preserved the possibility of a subsequent as-applied challenge.  The argument has merit, but the Supreme Court may not entertain a legal claim that was not presented first at the circuit or district court levels.

We will continue to post updates as the various cases proceed.


– Peter Arhangelsky is a Senior Associate with Emord & Associates and can be reached at (202) 466-6937 or parhangelsky@emord.com.


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