Thomas More Law Center petitioned for Writ of Certiorari to the Sixth Circuit Court of Appeals’ ruling that the individual mandate was a constitutional exercise of Congressional authority. See Thomas More Law Center v. Obama, 2011 WL 2556039 (6th Cir., June 29, 2011)(No. 10–2388). The petitioners ask the Court to address: (1) whether Congress has authority under the Commerce Clause to require a private citizen to purchase and maintain “minimum essential” coverage; and (2) whether the individual mandate is unconstitutional as applied to the petitioners. See the petition here.
The first reason presented for the grant of certiorari is to “establish a meaningful limitation on congressional power under the Commerce Clause.” Citing the Sixth Circuit opinions of Judges Sutton and Graham who observed that the petitioners present a novel theory which the Court has never heard before, the petitioners argued that certiorari was necessary to “decide an important question of federal law that has not been, but should be, settled by this Court.” Sup. Ct. R. 10(c).
The second reason proffered for granting certiorari is to preserve “first principles” and the Court’s established understanding of the Commerce Clause. After comparing the “expansive rulings” of Wickard and Raich to the “more careful federalism-sensitive rulings” of Lopez and Morrison, the petitioners argue that the universal principle from every Commerce Clause case since the Founding, is that congressional power under the clause is “strictly and absolutely limited to some kind of affirmative behavior or activity.”
Petitioners assert that the individual mandate does not fit into any previous Commerce Clause framework, because it regulates a decision, not an activity. The individual mandate touches any citizen who sits at home and does nothing even though that citizen is neither engaged in economic activity or any activity that would bring him or her within reach of a regulatory scheme. The petitioners argue that Congress’ findings about the impact of healthcare insurance on the national economy are irrelevant because the petitioners are not engaged in the activity whatsoever, and would not be in the future unless forced into the market by the government.
Finally the petitioners request a grant of certiorari to determine whether the mandate is unconstitutional as applied to themselves, as uninsured citizens. In the lower court decision, Judge Sutton held that the petitioners challenge was essentially undone by United States v. Salerno, 481 U.S. 739, 745 (1987), which states that under a facial challenge, “the challenger must establish that no set of circumstances exists under which the Act would be valid.” The petitioners contend that this was the wrong standard for their as applied challenge. It allowed Sutton to cite constitutional applications of the individual mandate on citizens already engaged in the insurance market (ex: individuals who voluntarily purchased insurance and wanted to maintain it, but not at the “minimum essential” coverage limits) without actually addressing the fundamental question of whether Congress had the authority to compel people to enter a market. The petitioners conclude by asking the Court to grant certiorari and answer that question in the negative.