Thursday, July 28, 2011

Thomas More petition on ACA reaches Supreme Court

Finally, the moment we've all been waiting for - a case challenging the Patient Protection and Affordable Care Act (ACA) has reached the U.S. Supreme Court. The Thomas More Law Center has filed a writ for petition of certiorari, asking the High Court to review the Sixth Circuit's decision in Thomas More Law Center v. Barack Hussein Obama, and to find that the individual mandate of the ACA is unconstitutional. The petition reiterates the Sixth Circuit's admonition to prove that there is a limit to Congress' Commerce Clause power.

The petition quotes Judge Sutton, who, while concurring with the opinion of the Sixth Circuit, had stated that, "the Court either should stop saying that a meaningful limit on Congress's commerce powers exists or prove that it is so." Also, Judge Graham, in his dissent, appeared to throw down the gauntlet to the Supreme Court, when he stated, as was reprinted in the Thomas More petition, "...the Court remains committed establish a framework of meaningful limitations on congressional power under the Commerce Clause. The current case is an opportunity to prove it so."

So, it would appear that the Thomas More Law Center is offering the U.S. Supreme Court an opportunity to put limits on Congress's apparent power to exceed what it argues are the sensible limits of the Commerce Clause.

In the petition, and common to arguments of those opposing the individual mandate, is the contention that, if the mandate is upheld, there would be virtually no limits on Congress's Commerce Clause authority. "What aspect of human activity would escape federal power?" Graham is quoted as asking, as though, if the individual mandate were found to be constitutional, the U.S. would be on the road to Congressional Commerce Clause Perdition, with the federal government taking the opportunity to regulate every aspect of every citizen's life.

The petitioners argue that, for the individual mandate to be upheld, those subject to it must be engaged in some affirmative economic activity. The ACA is impermissibly regulating, they say, the "decision to not engage in commercial or economic activity."

The government will no doubt argue in return that virtually everyone will, at some point in their lives, incur healthcare expenses and thus, be active in the healthcare market. The petitioners have anticipated that argument, stating that requiring someone to purchase health insurance just because he will probably participate economically in the healthcare arena is like saying that, because we all have to participate in the food market, Congress has the right to force us to purchase health foods under penalty of law.

The Sixth Circuit had stated in its opinion, however, that neither the Commerce Clause nor the Supreme Court have ever acknowledged a distinction between activity and inactivity.

I can't wait to see the federal government's response, due in 30 days, and I hope it's good, because it's easy to see how a holding that the individual mandate is unconstitutional could be disastrous for health plans that have already altered their documents and procedures to comply with the health care reform law, as well as for any citizen currently lacking health care coverage who is looking to 2014 for some security that he won't be bankrupted by medical bills, should he need care he now can't afford. Thomas More's reply, due 10 days later, should be just as entertaining.

For more information. For a comprehensive analysis of the Patient Protection and Affordable Care Act, and additional information on health reform and other developments in employee benefits, just click here.


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