NFIB Files Cert Petition


By Hadley Heath

Today the NFIB (National Federation of Independent Business, one of the private plaintiffs in the Florida case) filed a cert petition with the Supreme Court, asking them to take up their case.

Download a PDF copy of the petition here, and check out these thoughts from legal scholars:

Randy Barnett, Georgetown professor of law:

The legal issue is whether Congress would have passed the Affordable Care Act without the individual mandate.  Even the government concedes that the individual insurance mandate is essential to the costly restrictions being imposed on insurance companies and therefore is not severable.   It is inconceivable that Congress would have enacted the ACA without the insurance regulations that comprise the very heart of the scheme. This morning, we are asking the Supreme Court to so rule.  

Stephen Presser, Northwestern professor of law:

The Patient Protection and Affordable Care Act (PPACA) is the boldest move yet by the federal government to regulate the lives of all Americans.  In effect, it takes over 1/6 of the national economy. It flies in the face of the Constitution's structure of a federal government of limited and enumerated powers.  For that reason,  several wise federal judges have declared the Act's individual mandate, which requires all adult Americans to buy health insurance or pay a penalty to be unconstitutional.  One exceptionally astute jurist, Judge Roger Vinson of Florida, has also declared that without the individual mandate the entire scheme of the act (which is designed to get healthy Americans forced to buy health insurance they do not need to cover the costs of other Americans who would otherwise not be able to participate in the system) collapses, and therefore the entire Act, not just the individual mandate, should be declared to be an impermissible extension of federal power.  Making this argument, and pointing out that the Act imposes an intolerable burden on the nation's small businesspersons, The National Federation of Independent Business (NFIB) filed an appeal Wednesday, to get the United States Supreme Court to rule as did Judge Vinson.  Given that the proponents of the PPACA argued, when the Act was being debated, that the individual mandate was the cornerstone of the Act, if it is unconstitutional, then so is the entire Act.  If the Tenth Amendment of the Constitution, which provides for a federal government of limited and enumerated powers, means anything, then the NFIB is correct.  This does not mean, of course, that the provision of health care to all Americans is not a vital concern.  It only means that if we are to be faithful to the Constitution, the provision of that health care is a matter for the governments closest to the people, the states, and not for an insensitive and overweening group of officials in Washington.  

Ilya Shapiro, CATO Institute:

The NFIB's cert petition forces the Supreme Court to grapple not simply with the individual mandate's constitutional defects but with the fatal flaws those defects expose in the overall legislation. The regulatory burden and economic uncertainty -- let alone direct financial cost -- that Obamacare imposes on individuals, businesses, states, and the nation as a whole are part and parcel of noxious scheme centered on the individual mandate. The Court should grant this petition and thus begin putting an end to the government's doomed -- and unconstitutional -- attempt to control our lives.


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