In the last several days, 26 states, the National Federation of Independent Business, and 36 Republican senators, filed amicus briefs before the Supreme Court describing the Affordable Care Act’s individual mandate as a coercive provision that undermines the 10 Amendment rights of the states and characterizing Medicaid expansion as an illegal “commandeering” of states’ autonomy.
Tomorrow, over 480 state legislators from all 50 states plan to respond to these charges with an amicus brief of their own. The group will contend that the ACA complies with the Constitution’s Commerce and Necessary and Proper clauses and that “the idea that the federal government does not have the power to address a national problem such as the health care crisis has no basis in the Constitutions text and history”:
Ignoring this carefully calibrated constitutional balance of power, the court below and the State officials challenging the Affordable Care Act have promoted a vision of a starkly limited federal government…This deeply flawed vision has no basis in the Constitution’s text and history. …U.S. Const. art I, § 8, cl. 3… does not limit “commerce” to existing economic activity or trade, nor does the text’s use of “regulate” imply a power to prohibit but not require certain conduct. The lower court’s vision of a Commerce Clause power strictly curtailed by tests of self-initiated activity thus cannot be squared with the Clause’s text or original meaning and purpose.
Similarly, the lower court’s interpretation of the Necessary and Proper Clause is wholly unsupported by constitutional text and history. Far from the cramped vision of the Clause suggested by the court below, which would permit Congress to regulate only by using means that are themselves covered by the Commerce Clause (effectively rendering the Necessary and Proper Clause a nullity), the grant of power to “make all Laws which shall be necessary and proper for carrying into execution” constitutionally granted powers was intended to be sweeping.