AUSTIN – The U.S. Congress lacks the constitutional authority to require that individuals purchase health insurance, as it did under the Patient Protection and Affordable Care Act (ACA), argues an amicus curiae brief submitted yesterday to the United States Supreme Court by the Texas Public Policy Foundation.

“The individual mandate of the Affordable Care Act exceeds the power granted by the Constitution to the U.S. Congress to regulate commerce among the states,” said Mario Loyola, Director of the Foundation’s Center for Tenth Amendment Studies. “Upholding the mandate would constitute an unprecedented expansion of federal power and be incompatible with federalism, with the Constitution, and with basic liberties.”

Section 1501 of the ACA contains a mandate that all individuals must obtain health insurance or pay a tax penalty, subject to a variety of exceptions and exemptions. Congress based its authority for the mandate on the Commerce Clause of the U.S. Constitution, which gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

The Foundation’s brief argues that the current interpretation of that clause, which allows Congress to regulate any local activity that has a “substantial effect” on interstate commerce, “is fatally flawed for reasons of text, structure, history and economic rationality.”

“This Court must give a candid answer to this question: ‘If the government can force us to buy health insurance, what can’t it force us to do?'” the brief argues. “To that question it is not an acceptable answer to say that in the name of protecting and advancing health, the commerce power allows the federal government to prescribe what individuals may eat, how they must exercise, and what medicines they may take.”

“Without judicially enforceable limits on the power of Congress, only the self-restraint of transient congressional majorities can limit the reach of the federal government,” the brief continues. “History teaches, and Madison knew all too well, that in any constitutional republic, the transition to unrestrained majority rule is often an irrevocable step on the road to tyranny.”

Loyola co-authored the Foundation’s brief with Richard A. Epstein, the Laurence A. Tisch Professor of Law at the New York University School of Law, Senior Lecturer at the University of Chicago Law School, and the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution; and Josiah Neeley, policy analyst in the Foundation’s Center for Tenth Amendment Studies.

In late March, the U.S. Supreme Court has set three days of oral argument in Florida v. HHS, one of the main lawsuits challenging the constitutionality of the 2010 federal health care reform law.

Amicus curiae, or “friend of the court,” may submit briefs with information and analysis that may help the court resolve legal issues in a particular case. The Foundation has submitted three such briefs for the Court’s consideration of Florida v. HHS – one in early January on whether the individual mandate is functionally severable from other elements of the ACA, one in mid-January on the ACA’s Medicaid expansion, and this one on the constitutionality of the individual mandate.

Mario Loyola is Director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation.

The Texas Public Policy Foundation is a non-profit, free-market research institute based in Austin.

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