We have just filed an amicus curiae (“friend of the court”) brief with the Supreme Court arguing that (1) under current Supreme Court rulings, Obamacare’s individual mandate, if it can be justified at all, must be justified under the Constitution’s Necessary and Proper Clause, and (2) scholarly research into the meaning of the Necessary and Proper Clause shows that it is not broad enough to empower Congress to adopt the mandate.
The brief is based largely on a recent book I co-authored with three noted constitutional scholars, Gary Lawson, Geoffrey Miller, and Guy Seidman. All four of us have disparate political views, but all of our research converged on the issue of what the Founders intended the Necessary and Proper Clause to mean.
Independence Institute research director Dave Kopel, Gary Lawson, and I wrote the brief. You can read it here.
A little secret about amicus briefs is that many organizations and politicians file them just to show their supporters they are “doing something.” Consequently, as one legal scholar put it, “Most amicus briefs are junk.”
But we decided not to file unless we could offer something very significant, and I think we have done so. Our first brief explains why the Medicaid mandates are unconstitutional—a subject on which the Court has received relatively little information amid all the furor over the individual mandate. The second brief alerts the Court to historical information largely unknown before the publication of our book, The Origins of the Necessary and Proper Clause, by Cambridge University Press in 2010.