Last week, the U.S. Supreme Court received a petition for a writ of certiorari in Thomas More Law Center v. Obama. And, unlike Virginia v. Sebelius, this case has been through the entire lower court appeals process.
Law prof Brad Joondeph summarizes TMLC’s position on Obamacare which, like virtually every lawsuit that has been filed pursuant to PPACA, turns on the law’s individual mandate:
In the exercise of its power to regulate interstate commerce, Congress can only regulate ‘economic activities.’
Even if Congress can regulate non-economic activities under it’s commerce power, what it regulates must still be an ‘activity,’ and not merely a decision to do nothing.
These limitations apply even when Congress is regulating a discrete practice on the ground that doing so is integral to a larger regulatory scheme, which scheme plainly regulates interstate commerce.
This limitation must exist, for without it, Congress would have a plenary police power to regulate anything and everything, and the Constitution’s basic structural principles would be lost.
In other words, the ObamaCare mandate exceeds Congress’ enumerated powers. The Constitution doesn’t authorize the government to regulate inactivity (i.e. the decision not to buy health insurance).
The Supremes may or may not accept this case, but it will accept one of the ObamaCare lawsuits sooner or later. At that time we will learn if there are any limits on federal power.
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