The titanic battle over federal health care reform is now before the U.S. Supreme Court.
The Thomas More Law Center today announced that it had filed its petition for certiorari in Thomas More Law Center v. Obama, its challenge to a June 29 ruling by the U.S. Court of Appeals for the 6th Circuit that upheld the so-called "individual mandate" under the landmark health care legislation. That provision of the Patient Protection and Affordable Care Act requires individuals to purchase at least minimum health care insurance coverage.
"Review is necessary to establish a meaningful limitation on congressional power under the Commerce Clause," the petition argues. "If the Act is understood to fall within Congress’s Commerce Clause authority, the federal government will have absolute and unfettered power to create complex regulatory schemes to fix every perceived problem imaginable and to do so by ordering private citizens to engage in affirmative acts, under penalty of law."
As examples, the brief asserts that if the individual mandate is upheld in the health care arena, government would feel free to order citizens to take vitamins, join health clubs, or buy General Motors cars.
The petition may be at the leading edge of a wave of litigation over the controversial legislation, challenging the first of several expected appeals court rulings in coming months.
Because the 6th Circuit is the only appeals court that has ruled thus far, the petition could not make what is usually the strongest argument for review by the Supreme Court: the need to resolve a split among circuits.
Instead, the brief cites a rule of the Supreme Court suggesting that review is appropriate when "a United States court of appeals has decided an important question of federal law that has not, but should be, settled by this Court."
The petition cites the line of cases mainly from the Rehnquist Court seeking to limit the power of Congress under the Constitution's Commerce Clause. Those precedents, the petition states, mean that "before Congress can reach you through the Commerce Clause, you must be engaged in some affirmative activity."
Two of the three members of the 6th Circuit panel agreed, for different reasons, that the government had made a plausible case that the individual mandate is constitutional because an individual's decision not to obtain health coverage has economic consequences. The judges were Boyce Martin and Jeffrey Sutton. Sutton's opinion has been viewed as especially important because he is a respected conservative judge who, as appellate lawyer, often argued in favor of state sovereignty. The dissenting judge in the 6th Circuit case was Ohio U.S. District Court Judge James Graham, sitting by designation.
The petition was filed by Thomas Muise of the Ann Arbor, Michigan-based More Center. David Yerushalmi of the Law Offices of David Yerushalmi in Chandler, Arizona, was also on the brief. Following a reply by the Obama administration, the case would likely be weighed by the justices at the Court's private conference in late September, though it could also consider the petition during the summer recess.