NFIB Responds to Government's Cert Petition


By Hadley Heath

Today the National Federation of Independent Business filed a Response to the DOJ cert petition.

On page 10, the NFIB repeats the challenge issued by the Sixth Circuit (ruling in Thomas More):

One “way to look at [this Court’s] precedents” is that “th[is] Court either should stop saying that a meaningful limit on Congress’s commerce powers exists or prove that it is so.”

Let's hope that the Court will prove that limits on government still exist!

Here's more of the meat of the Response, and some solid holes punched in the DOJ's "Necessary and Proper" defense:

Indeed, if the Rubicon were crossed to sustain this health-insurance mandate, well-established precedent holds that there would be no judicially cognizable limit on what purchases Congress could compel. If forcing individuals to purchase a product is a “specified object[]” within Congress’ “power over commerce” simply due to the aggregate effect on commerce, then “the sovereignty of Congress … is plenary as to th[at] object[],” without regard to the particular effect for a particular product. Gibbons, 22 U.S. at 197; see also Darby, 312 U.S. at 115.  Likewise, if forcing non-participants in a commercial market to purchase a product is “necessary and proper” merely “to counteract the significant regulatory costs” that Congress’ “fully executed” scheme has imposed on the regulated seller, Pet.App. 157a, then Congress can mandate such purchases whenever it is “convenient,” “useful,” or “conducive" to the “beneficial exercise” of any fully functional statute. United States v. Comstock, 130 S. Ct. 1949, 1956 (2010) (citing McCulloch, 17 U.S. at 413, 418).

In other words, if Congress is going to pass a law so badly flawed that it requires more legislation - in fact unconstitutional legislation - to fix it... perhaps Congress should not have enacted the bad law in the first place.

Read the whole Response in PDF here.


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