Letter of Support: Rep. Roe's Resolution on ObamaCare's Unconstitutionality

December 13, 2011 J

Dear Representative Roe,

On behalf of 1.8 million Americans for Prosperity activists in all 50 states, I commend you for introducing H. Res. 475, a resolution expressing the sense of the House of Representatives that the individual mandate is unconstitutional and not severable from the President’s health care law.

There are two parts of the Constitution to consider when deciding whether the individual mandate is constitutional: one is the Necessary and Proper Clause and the other is the Commerce Clause. The Obama administration has argued that the mandate is constitutional because it is a “neces¬sary and proper” piece of the broader health care law. The judicial Left has long argued that so long as the goal of the overall legislation is constitutional, in this case regulating and providing health care, that the Necessary and Proper Clause confers new powers on Congress to accomplish the goals of that legislation. AFP believes this argument is severely misguided and that Congress must have both means and ends that are separately constitu¬tional.

The second question is whether the Commerce Clause is a constitutional means by which Congress can use the individual mandate to accomplish the Act’s goals. Article I, Section 8 of the Constitution says that Congress has the power “to regulate Commerce … among the several States.” The Su¬preme Court originally interpreted that clause to mean that Congress could regulate interstate waterways, transportation and commerce. However, throughout the 20th Century, the Court expanded the clause to include fully intrastate activities and later anything that touched or affected interstate commerce. It was not until 1995 that the Court again recognized a limit Congress’s Commerce Clause power.

The individual mandate raises a novel question under Commerce Clause jurisprudence: whether Con¬gress can regulate economic inactivity. The mandate seeks to compel people who aren’t in the health insurance market to enter the market and consume a good. The Obama administration argues that these people will eventually consume health care and thus Congress has the power to control when and how they use that good. However, this is not technically true. There must certainly be a small number of individuals who will choose to pay out of pocket, use homeopathic remedies or go to another country for their health care. Consuming health care and carrying health care insurance is not the same thing. AFP believes that the individual mandate stretches the Commerce Clause beyond the breaking point and that the Supreme Court must strike it down if our constitutional design to limit federal power is to have any meaning at all.

On the issue of severability, Judge Roger Vinson properly summarizes Ken Klukowski’s argument that you cannot separate the individual mandate from the broader law. In striking down the entire Act Vinson wrote:

[T]his Act has been analogized to a finely crafted watch, and that seems to fit … There are simply too many moving parts in the Act and too many provisions dependent … on the individual mandate … for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone.

Such a quasi-legislative undertaking would be particularly inappropriate in light of the fact that any statute that might conceivably be left over after this analysis is complete would plainly not serve Congress’ main purpose and primary objective in passing the Act … The Act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker.

Americans for Prosperity is proud to support H.Res. 475, which expresses the sense of the House of Representatives that the individual mandate is unconstitutional and that it cannot be judicially severed from the larger statute. I urge your colleagues to support this resolution, and I look forward to working with you in the future.


James Valvo
Director of Government Affairs
Americans for Prosperity

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