The Colorado Independent reports:
The Independence Institute, a Denver-based free-market think tank that has led the charge in Colorado against the Affordable Care Act, has filed what it is calling two “potentially game changing” briefs with the U.S. Supreme Court. The court this week is hearing arguments on the constitutionality of the two-year-old law. …
Arguments around the law made in lower courts have centered on the Constitution’s Commerce Clause, which grants Congress the power to regulate business conducted across state lines. There is strong precedent supporting the legitimacy of the law from that standpoint and, in his main, first brief (pdf), Kopel seeks to shift the argument away from the Commerce Clause.
“What people… miss is that the Supreme Court itself tells us that issues like this– about purely intrastate activities such as buying health insurance– are really decided under the Necessary and Proper Clause,” Kopel said in a release, citing the clause that grants Congress the root authority to pass laws “necessary and proper” for exercising its other powers.
“There is new research just published by one of the top academic publishers in the world that shows the Necessary and Proper Clause was never meant to give the Congress the power to force you to buy something simply because the purchase would help ‘commerce’,” Kopel said. “The history of the Necessary and Proper Clause is very clear on that point. It’s just a matter of getting that history before the Court.”
Kopel’s second brief (pdf) concerns the expansion of coverage guaranteed by the Affordable Care Act. Kopel said the law allows “federal bureaucrats, virtually at their uncontrolled whim, to bankrupt a state.”
He believes the law goes against a line of cases extending from as early as 1798, the latest being Alden v. Maine, was written in 1999 by Justice Anthony Kennedy, a likely key swing vote in the Affordable Care Act case.
Read Dave Kopel’s comments on the March 26 Supreme Court hearings at JonCaldara.com.