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STATE OF FLOPlDA, by and through
Attorney Cenera| Pam Bondi, et a|.;
v. Case No.. 3.10-cv-91-PV/EMT
On March 23, 2010, President Obama signed hea|th care reIorm |egis|ation.
"The Patient Protection and AIIordab|e Care Act." Pub. L. No. 111-148, 124 Stat.
119 (2010), as amended by the Hea|th Care and Education Peconci|iation Act oI
2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (the "Act").
This case, cha||enging the Constitutiona|ity oI the Act, vas Ii|ed minutes
aIter the President signed. lt has been brought by the Attorneys Cenera| and/or
Covernors oI tventy-six states (the "state p|aintiIIs")
; tvo private citizens (the
"individua| p|aintiIIs"); and the Nationa| Federation oI lndependent Business
("NFlB") (co||ective|y, the "p|aintiIIs"). The deIendants are the United States
Department oI Hea|th and Human Services, the Department oI Treasury, the
Department oI Labor, and their secretaries (co||ective|y, the "deIendants"). l
emphasized once beIore, but it bears repeating again. this case is not about
The states are A|abama, A|aska, Arizona, Co|orado, F|orida, Ceorgia, ldaho,
lndiana, lova, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada,
North Dakota, Ohio, Pennsy|vania, South Caro|ina, South Dakota, Texas, Utah,
Washington, Wisconsin, and Wyoming.
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vhether the Act is vise or unvise |egis|ation, or vhether it vi|| so|ve or exacerbate
the myriad prob|ems in our hea|th care system. ln Iact, it is not rea||y about our
hea|th care system at a||. lt is principa||y about our Iedera|ist system, and it raises
very important issues regarding the Constitutiona| ro|e oI the Iedera| government.
James Madison, the chieI architect oI our Iedera|ist system, once Iamous|y
lI men vere ange|s, no government vou|d be necessary.
lI ange|s vere to govern men, neither externa| nor interna|
contro|s on government vou|d be necessary. ln Iraming a
government vhich is to be administered by men over
men, the great diIIicu|ty |ies in this. you must Iirst enab|e
the government to contro| the governed; and in the next
p|ace ob|ige it to contro| itse|I.
The Federa|ist No. 51, at 348 (N.Y. Heritage Press ed., 1945) ("The Federa|ist").
ln estab|ishing our government, the Founders endeavored to reso|ve Madison´s
identiIied "great diIIicu|ty" by creating a system oI dua| sovereignty under vhich
"ít]he povers de|egated by the proposed Constitution to the Iedera| government
are Iev and deIined. Those vhich are to remain in the State governments are
numerous and indeIinite." The Federa|ist No. 45, at 311 (Madison); see a|so U.S.
Const. art. l, s 1 (setting Iorth the speciIic |egis|ative povers "herein granted" to
Congress). When the Bi|| oI Pights vas |ater added to the Constitution in 1791, the
Tenth Amendment reaIIirmed that re|ationship. "The povers not de|egated to the
United States by the Constitution, nor prohibited by it to the States, are reserved to
The Federa|ist consists oI 85 artic|es or essays vritten by James Madison,
A|exander Hami|ton, and John Jay, advocating Ior ratiIication oI the Constitution.
"The opinion oI the Federa|ist has a|vays been considered as oI great authority. lt
is a comp|ete commentary on our constitution; and is appea|ed to by a|| parties in
the questions to vhich that instrument has given birth. lts intrinsic merit entit|es it
to this high rank." Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 418, 5 L. Ed. 257
(1821) (Marsha||, C.J.). lt vi|| be cited to, and re|ied on, severa| times throughout
the course oI this opinion.
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the States respective|y, or to the peop|e."
The Framers be|ieved that |imiting Iedera| pover, and a||oving the "residua|"
pover to remain in the hands oI the states (and oI the peop|e), vou|d he|p "ensure
protection oI our Iundamenta| |iberties" and "reduce the risk oI tyranny and abuse."
See Cregory v. AshcroIt, 501 U.S. 452, 458, 111 S. Ct. 2395, 115 L. Ed. 2d 410
(1991) (citation omitted). Very ear|y, the great ChieI Justice John Marsha|| noted
"that those |imits may not be mistaken, or Iorgotten, the constitution is vritten."
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L. Ed. 60 (1803). Over tvo
centuries |ater, this de|icate ba|ancing act continues. Pather than being the mere
historic re|ic oI a bygone era, the princip|e behind a centra| government vith |imited
pover has "never been more re|evant than in this day, vhen accretion, iI not actua|
accession, oI pover to the Iedera| government seems not on|y unavoidab|e, but
even expedient." Brzonka|a v. Virginia Po|ytechnic lnstitute, 169 F.3d 820, 826 (4
Cir. 1999) (en banc), aII´d sub nom, United States v. Morrison, 529 U.S. 598, 120
S. Ct. 1740, 146 L. Ed. 2d 658 (2000).
To say that the Iedera| government has |imited and enumerated pover does
not get one Iar, hovever, Ior that statement is a |ong-recognized and ve||-sett|ed
ln United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d
626 (1995), a vatershed decision that vi|| be discussed inIra, the Supreme Court
began its ana|ysis by reIerring to these |imits on Iedera| pover as "Iirst princip|es."
ln a manner oI speaking, they may be said to be "|ast princip|es" as ve||, Ior the
Lopez Court deemed them to be so important that it a|so ended its opinion vith a
Iu|| discussion oI them. See id. at 567-68. Short|y thereaIter, in United States v.
Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000), vhich vi||
a|so be discussed inIra, the Supreme Court reIerred to the division oI authority and
|imits on Iedera| pover as the "centra| princip|e oI our constitutiona| system." See
id. at 616 n.7. C|ear|y, iI the modern Supreme Court regards the |imits oI Iedera|
pover as Iirst, centra|, and |ast princip|es, those princip|es are proIound|y important
--- even in this day and age --- and they must be treated according|y in deciding this
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truism. McCu||och v. Mary|and, 17 U.S. (4 Wheat) 316, 405, 4 L. Ed. 579 (1819)
("This government is acknov|edged by a||, to be one oI enumerated povers. The
princip|e, that it can exercise on|y the povers granted to it, . . . is nov universa||y
admitted.") (Marsha||, C.J.). The ongoing cha||enge is deciding vhether a particu|ar
Iedera| |av Ia||s vithin or outside those povers. lt is Irequent|y a diIIicu|t task and
the subject oI heated debate and strong disagreement. As ChieI Justice Marsha||
apt|y predicted near|y 200 years ago, vhi|e everyone may agree that the Iedera|
government is one oI enumerated povers, "the question respecting the extent oI
the povers actua||y granted, is perpetua||y arising, and vi|| probab|y continue to
arise, so |ong as our system sha|| exist." ld. This case presents such a question.
The background oI this case --- inc|uding a discussion oI the origina| c|aims,
the deIenses, and an overviev oI the re|evant |av --- is set out in my order dated
October 14, 2010, vhich addressed the deIendants´ motion to dismiss, and it is
incorporated herein. l vi|| on|y discuss the background necessary to reso|ving the
case as it has been vinnoved dovn to the tvo causes oI action that remain.
ln Count l, a|| oI the p|aintiIIs cha||enge the "individua| mandate" set Iorth in
Section 1501 oI the Act, vhich, beginning in 2014 vi|| require that everyone (vith
certain |imited exceptions) purchase Iedera||y-approved hea|th insurance, or pay a
monetary pena|ty.
The individua| mandate a||eged|y vio|ates the Commerce C|ause,
l previous|y rejected the deIendants´ argument that this pena|ty vas rea||y
a tax, and that any cha||enge thereto vas barred by the Anti-lnjunction Act. My
ear|ier ru|ing on the deIendants´ tax argument is incorporated into this order and,
signiIicant|y, has the eIIect oI Iocusing the issue oI the individua| mandate on
vhether it is authorized by the Commerce C|ause. To date, every court to consider
this issue (even those that have ru|ed in Iavor oI the Iedera| government) have a|so
rejected the tax and/or Anti-lnjunction arguments. See Coudy-Bachman v. U.S.
Dep´t oI Hea|th & Human Servs., 2011 WL 223010, at ¯9-¯12 (M.D. Pa. Jan. 24,
2011); Virginia v. Sebe|ius, 728 F. Supp. 2d 768, 786-88 (E.D. Va. 2010); Liberty
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vhich is the provision oI the Constitution Congress re|ied on in passing it. ln Count
lV, the state p|aintiIIs cha||enge the Act to the extent that it a|ters and amends the
Medicaid program by expanding that program, inter a|ia, to. (i) inc|ude individua|s
under the age oI 65 vith incomes up to 133% oI the Iedera| poverty |eve|, and (ii)
render the states responsib|e Ior the actua| provision oI hea|th services thereunder.
This expansion oI Medicaid a||eged|y vio|ates the Spending C|ause and princip|es oI
Iedera|ism protected under the Ninth and Tenth Amendments. The p|aintiIIs seek a
dec|aratory judgment that the Act is unconstitutiona| and an injunction against its
These tvo c|aims are nov pending on cross motions Ior summary judgment
(docs. 80, 82), vhich is a pre-tria| vehic|e through vhich a party sha|| prevai| iI the
evidence in the record "shovs that there is no genuine dispute as to any materia|
Iact and the movant is entit|ed to judgment as a matter oI |av." Fed. P. Civ. P. 56.
Whi|e the parties dispute numerous Iacts (primari|y in the context oI the Medicaid
count, noted inIra), they appear to agree that disposition oI this case by summary
judgment is appropriate --- as the dispute u|timate|y comes dovn to, and invo|ves,
pure issues oI |av. Both sides have Ii|ed strong and ve|| researched memoranda in
support oI their motions Ior summary judgment ("Mem."), responses in opposition
("Opp."), and rep|ies ("Pep|y") in Iurther support. l he|d a |engthy hearing and ora|
argument on the motions December 16, 2010 ("Tr."). ln addition to this extensive
brieIing by the parties, numerous organizations and individua|s vere granted |eave
to, and did, Ii|e amicus curiae brieIs (sixteen tota|) in support oI the arguments and
c|aims at issue.
Univ., lnc. v. Ceithner, --- F. Supp. 2d ---, 2010 WL 4860299, at ¯9-¯11 (W.D. Va.
Nov. 30, 2010); U.S. Citizens Assoc. v. Sebe|ius, --- F. Supp. 2d ---, 2010 WL
4947043, at ¯5 (N.D. Ohio Nov. 22, 2010); Thomas More Lav Center v. Obama,
720 F. Supp. 2d 882, 890-91 (E.D. Mich. 2010).
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l have careIu||y revieved and considered a|| the Ioregoing materia|s, and nov
set Iorth my ru|ings on the motions and cross-motions Ior summary judgment. l vi||
take up the p|aintiIIs´ tvo c|aims in reverse order.
For this c|aim, the state p|aintiIIs object to the Iundamenta| and "massive"
changes in the nature and scope oI the Medicaid program that the Act vi|| bring
about. They contend that the Act vio|ates the Spending C|ause íU.S. Const. art. l,
s 8, c|. 1] as it signiIicant|y expands and a|ters the Medicaid program to such an
extent they cannot aIIord the nev|y-imposed costs and burdens. They insist that
they have no choice but to remain in Medicaid as amended by the Act, vhich vi||
eventua||y require them to "run their budgets oII a c|iII." This is a||eged to vio|ate
the Constitutiona| spending princip|es set Iorth in South Dakota v. Do|e, 483 U.S.
203, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987), and in other cases.
Under Do|e, there are Iour restrictions on Congress´ Constitutiona| spending
pover. (1) the spending must be Ior the genera| ve|Iare; (2) the conditions must be
stated c|ear|y and unambiguous|y; (3) the conditions must bear a re|ationship to the
purpose oI the program; and 4) the conditions imposed may not require states "to
engage in activities that vou|d themse|ves be unconstitutiona|." Supra, 483 U.S. at
207-10. ln addition, a spending condition cannot be "coercive." This conceptiona|
requirement is a|so Irom Do|e, vhere the Supreme Court specu|ated (in dicta at the
end oI that opinion) that "in some circumstances the Iinancia| inducement oIIered
by Congress might be so coercive as to pass the point at vhich ´pressure turns into
The state p|aintiIIs a||eged in their comp|aint that the Medicaid provisions
a|so vio|ated the Ninth and Tenth Amendments, but those c|aims have not been
advanced or brieIed in their summary judgment motion (except in a sing|e passing
sentence, see P|. Mem. at 25).
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compu|sion.´" See id. at 211 (citation omitted). lI that |ine is crossed, the Spending
C|ause is vio|ated.
Pre|iminari|y, l note that in their comp|aint the state p|aintiIIs appear to have
re|ied so|e|y on a "coercion and commandeering" theory. Novhere in that p|eading
do they a||ege or intimate that the Act a|so vio|ates the Iour "genera| restrictions"
in Do|e, nor did they make the argument in opposition to the deIendants´ previous
motion to dismiss. Thus, as l stated in my ear|ier order aIter describing Do|e´s Iour
genera| restrictions. "The p|aintiIIs do not appear to dispute that the Act meets
these restrictions. Pather, their c|aim is based principa||y on íthe coercion theory]."
Apparent|y expanding that argument, the state p|aintiIIs nov argue (very brieI|y, in
|ess than one Iu|| page) that the Act´s Medicaid provisions vio|ate the Iour genera|
restrictions. See P|. Mem. at 44-45. This be|ated argument is unpersuasive. The
Act p|ain|y meets the Iirst three oI Do|e´s spending restrictions, and it meets the
Iourth as |ong as there is no other required activity that vou|d be independent|y
unconstitutiona|. Thus, the on|y rea| issue vith respect to Count lV, as Iramed in
the p|eadings, is vhether the Medicaid provisions are impermissib|y coercive and
eIIective|y commandeer the states.
The gist oI this c|aim is that because Medicaid is the sing|e |argest Iedera|
grant-in-aid program to the states, and because the states and the needy persons
receiving that aid have come to depend upon it, the state p|aintiIIs are Iaced vith
an untenab|e Hobson´s Choice. They must either (1) accept the Act´s transIormed
Medicaid program vith its nev costs and ob|igations, vhich they cannot aIIord, or
(2) exit the program a|together and |ose the Iedera| matching Iunds that are
necessary and essentia| to provide hea|th care coverage to their neediest citizens
(a|ong vith other Medicaid-|inked Iedera| Iunds). Either vay, they contend that their
state Medicaid systems vi|| eventua||y co||apse, |eaving mi||ions oI their neediest
residents vithout hea|th care. The state p|aintiIIs assert that they eIIective|y have
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no choice other than to participate in the program.
ln their vo|uminous materia|s Ii|ed in support oI their motion Ior summary
judgment, the state p|aintiIIs have identiIied some serious Iinancia| and practica|
prob|ems that they are Iacing under the Act, especia||y its costs. They present a
b|eak Iisca| picture. At the same time, much oI those Iacts have been disputed by
the deIendants in their equa||y vo|uminous Ii|ings; and a|so by some oI the states
appearing in the case as amici curiae, vho have asserted that the Act vi|| in the
|ong run save money Ior the states. lt is simp|y impossib|e to reso|ve this Iactua|
dispute nov as both sides´ Iinancia| data are based on economic assumptions,
estimates, and projections many years out. ln short, there are numerous genuine
disputed issues oI materia| Iact vith respect to this c|aim that cannot be reso|ved
on summary judgment.
Hovever, even |ooking beyond these present|y impossib|e-
to-reso|ve disputed issues oI Iact, there is simp|y no support Ior the state p|aintiIIs´
coercion argument in existing case |av.
ln considering this issue at the motion to dismiss stage, l noted that state
Perhaps anticipating this, the state p|aintiIIs maintained in response to the
deIendants´ Ii|ings that "the entire question oI vhether the States´ costs might to
some extent be oIIset by co||atera| savings is |ega||y irre|evant." See P|. Opp. at 29.
Thus, "even iI the States vere projected to achieve co||atera| savings, those
savings vou|d in no vay |essen the coercion and commandeering oI vhich P|aintiII
States comp|ain, because they vou|d sti|| be required to do Congress´s bidding." ld.
at 41-42. Hovever, it vou|d appear Irom the operative comp|aint that the coercion
c|aim has a|vays been rooted in the under|ying contention that the Act Iorces the
states to expend resources that they cannot aIIord. "P|aintiII States cannot aIIord
the unIunded costs oI participating under the Act, but eIIective|y have no choice
other than to participate." Second Amended Comp|aint at ¹ 84; see a|so id. at ¹ 86
(reIerring to the "Iisca| impact" oI the Medicaid expansion and exp|aining that it vi||
compe| states "to assume costs they cannot aIIord"); id. at ¹ 41 (Act vi|| "expand
e|igibi|ity Ior enro||ment beyond the State´s abi|ity to Iund its participation"); id. at ¹
56 (reIerring to the projected bi||ions oI do||ars in additiona| costs "stemming Irom
the Medicaid-re|ated portions oI the Act" vhich vi|| "grov in succeeding years");
id. at ¹ 66 (reIerencing the "harmIu| eIIects oI the Act on íthe state] Iiscs").
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participation in the Medicaid program under the Act is --- as it a|vays has been ---
vo|untary. This is a Iundamenta| binary e|ement. it either is vo|untary, or it is not.
Whi|e the state p|aintiIIs insist that their participation is invo|untary, and that they
cannot exit the program, the c|aim is contrary to the judicia| Iindings in numerous
other Medicaid cases ísee, e.g., Wi|der v. Virginia Hosp. Assoc., 496 U.S. 498,
502, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990) (observing that "Medicaid is a
cooperative Iedera|-state program íand] participation in the program is vo|untary");
F|orida Assoc. oI Pehab. Faci|ities v. F|orida Dep´t oI Hea|th & Pehab. Servs, 225
F.3d 1208, 1211 (11
Cir. 2000) ("No state is ob|igated to participate in the
Medicaid program."); Doe v. Chi|es, 136 F.3d 709, 722 (11
Cir. 1998) (Medicaid
is a program Irom vhich the state "a|vays retains íthe] option" to vithdrav)], and
be|ied by numerous pub|ished nevs reports that severa| states (inc|uding certain oI
the p|aintiIIs in this case) are present|y considering doing exact|y that. Furthermore,
tvo p|aintiII states have acknov|edged in dec|arations Ii|ed in support oI summary
judgment that they can vithdrav Irom the program. See Dec|aration oI Michae| J.
Wi||den (Director oI Department oI Hea|th and Human Services, Nevada) ("Nevada
can sti|| consider opting out oI Medicaid a viab|e option."); Dec|aration oI Deborah
K. Bovman (Secretary oI Department oI Socia| Services, South Dakota) (conceding
that a|though it vou|d be detrimenta| to its Medicaid recipients, South Dakota cou|d
"cease participation in the Medicaid Program"). When the Ireedom to "opt out" oI
the program is vieved in |ight oI the Iact that Congress has express|y reserved the
right to a|ter or amend the Medicaid program ísee 42 U.S.C. s 1304 ("The right to
a|ter, amend, or repea| any provision oI this chapter is hereby reserved to the
Congress.")], and has done so many times over the years, l observed in my ear|ier
order that the p|aintiIIs´ argument vas not strong. See Harris v. McPae, 448 U.S.
297, 301, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980) (stating that "participation in
the Medicaid program is entire|y optiona|, íbut] once a State e|ects to participate, it
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must comp|y vith the requirements").
lndeed, a survey oI the |ega| |andscape revea|ed that there vas "very |itt|e
support Ior the p|aintiIIs´ coercion theory argument" as every sing|e Iedera| Court
oI Appea|s ca||ed upon to consider the issue has rejected the coercion theory as a
viab|e c|aim. See, e.g., Doe v. Nebraska, 345 F.3d 593, 599-600 (8
Cir. 2003);
Kansas v. United States, 214 F.3d 1196, 1201-02 (10
Cir. 2000); Ca|iIornia v.
United States, 104 F.3d 1086, 1092 (9
Cir. 1997); Ok|ahoma v. Schveiker, 655
F.2d 401, 413-14 (D.C. Cir. 1981); State oI Nev Hampshire Dep´t oI Emp|oyment
Sec. v. Marsha||, 616 F.2d 240, 246 (1
Cir. 1980); but see West Virginia v. U.S.
Dep´t oI Hea|th & Human Servs., 289 F.3d 281, 288-90 (4
Cir. 2002) (reIerring
to a prior decision oI that court, Commonvea|th oI Virginia Dep´t oI Education v.
Pi|ey, 106 F.3d 559 (4
Cir. 1997), vhere six oI the thirteen judges on an en banc
pane| stated in dicta that a coercion c|aim may be viab|e in that court, but going on
to note that due to "strong doubts" about the viabi|ity oI the coercion theory "most
courts Iaced vith the question have eIIective|y abandoned any rea| eIIort to app|y
the coercion theory" aIter Iinding, in essence, that it "raises po|itica| questions that
cannot be reso|ved by the courts").
ln the absence oI an E|eventh Circuit case on point, the state p|aintiIIs´ c|aim
vas "p|ausib|e" at the motion to dismiss stage. Thus, the p|aintiIIs vere a||oved to
proceed and provide evidentiary support and Iurther |ega| support Ior a judicia||y
manageab|e standard or coherent theory Ior determining vhen, in the vords oI the
Supreme Court, a Iedera| spending condition "passíes] the point at vhich ´pressure
turns into compu|sion.´" See Do|e, supra, 483 U.S. at 211. The evidentiary support
is substantia||y in dispute, as a|ready noted, and Iurther |ega| support has not been
Iorthcoming. lt is nov apparent that existing case |av is inadequate to support the
state p|aintiIIs´ coercion c|aim. As the Ninth Circuit has exp|ained in its ana|ysis oI
an ear|ier coercion c|aim made by the State oI Nevada.
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We can hard|y Iau|t appe||ant íIor not providing the court
vith any princip|ed deIinition oI the vord "coercion"]
because our ovn inquiry has |eIt us vith on|y a series oI
unansvered questions. Does the re|evant inquiry turn on
hov high a percentage oI the tota| programmatic Iunds is
|ost vhen Iedera| aid is cut-oII? Or does it turn, as
Nevada c|aims in this case, on vhat percentage oI the
Iedera| share is vithhe|d? Or on vhat percentage oI the
state's tota| income vou|d be required to rep|ace those
Iunds? Or on the extent to vhich a|ternative private,
state, or Iedera| sources oI . . . Iunding are avai|ab|e?
There are other interesting and more Iundamenta|
questions. For examp|e, shou|d the Iact that Nevada,
un|ike most states, Iai|s to impose a state income tax on
its residents p|ay a part in our ana|ysis? Or, to put the
question more basica||y, can a sovereign state vhich is
a|vays Iree to increase its tax revenues ever be coerced
by the vithho|ding oI Iedera| Iunds --- or is the state
mere|y presented vith hard po|itica| choices?
Nevada v. Skinner, 884 F.2d 445, 448 (9
Cir. 1989). lt is not simp|y a matter oI
these being genera||y diIIicu|t or comp|ex questions Ior courts to reso|ve because,
as l have said, "courts dea| every day vith the diIIicu|t comp|exities oI app|ying
Constitutiona| princip|es set Iorth and deIined by the Supreme Court." Pather, as
Justice Cardozo cautioned in vhat appears to have been the Iirst case to hint at
the possibi|ity oI a coercion theory c|aim, "to ho|d that motive or temptation is
equiva|ent to coercion is to p|unge the |av in end|ess diIIicu|ties." See Stevard
Machine Co. v. Davis, 301 U.S. 548, 589-90, 57 S. Ct. 883, 81 L. Ed. 1279
(1937) (emphasis added); see a|so, e.g., Skinner, supra, 884 F.2d at 448 ("The
diIIicu|ty iI not the impropriety oI making judicia| judgments regarding a state's
Iinancia| capabi|ities renders the coercion theory high|y suspect as a method Ior
reso|ving disputes betveen Iedera| and state governments.").
ln short, vhi|e the p|aintiIIs´ coercion theory c|aim vas p|ausib|e enough to
survive dismissa|, upon Iu|| consideration oI the re|evant |av and the Constitutiona|
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princip|es invo|ved, and in |ight oI the numerous disputed Iacts a||uded to above, l
must conc|ude that this c|aim cannot succeed and that the deIendants are entit|ed
to judgment as a matter oI |av. ln so ru|ing, l join a|| courts to have considered this
issue and reached the same resu|t, even in Iactua| situations that invo|ved (as here)
the potentia| vithdrava| oI a state´s entire Medicaid grant. See, e.g., Schveiker,
supra, 655 F.2d at 414 ("The courts are not suited to eva|uating vhether the
states are Iaced here vith an oIIer they cannot reIuse or mere|y a hard choice.");
Ca|iIornia, supra, 104 F.3d at 1086 (rejecting coercion theory argument based on
the c|aim that vhi|e the state joined Medicaid vo|untari|y, it had grovn to depend
on Iedera| Iunds and "nov has no choice but to remain in the program in order to
prevent a co||apse oI its medica| system").
l appreciate the diIIicu|t situation in vhich the states Iind themse|ves. lt is a
matter oI historica| Iact that at the time the Constitution vas draIted and ratiIied,
the Founders did not expect that the Iedera| government vou|d be ab|e to provide
sizeab|e Iunding to the states and, consequent|y, be ab|e to exert pover over the
states to the extent that it current|y does. To the contrary, it vas expected that
the Iedera| government vou|d have |imited sources oI tax and tariII revenue, and
might have to be supported by the states. This reversa| oI ro|es makes any state-
Iedera| partnership somevhat precarious given the Iedera| government´s enormous
economic advantage. Some have suggested that, in the interest oI Iedera|ism, the
Supreme Court shou|d revisit and reconsider its Spending C|ause cases. See Lynn
A. Baker, The Spending Pover and the Federa|ist Peviva|, 4 Chap. L. Pev. 195-96
(2001) (maintaining the "greatest threat to state autonomy is, and has |ong been,
Congress´s spending pover" and "the states vi|| be at the mercy oI Congress so
|ong as there are no meaningIu| |imits on its spending pover"). Hovever, un|ess
and unti| that happens, the states have |itt|e recourse to remaining the very junior
partner in this partnership.
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According|y, summary judgment must be granted in Iavor oI the deIendants
on Count lV.
For this c|aim, the p|aintiIIs contend that the individua| mandate exceeds
Congress´ pover under the Commerce C|ause. To date, three district courts have
ru|ed on this issue on the merits. Tvo have he|d that the individua| mandate is a
proper exercise oI the commerce pover íLiberty Univ., lnc. v. Ceithner, --- F. Supp.
2d ---, 2010 WL 4860299 (W.D. Va. Nov. 30, 2010); Thomas More Lav Center v.
Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010)], vhi|e the other court he|d that it
vio|ates the Commerce C|ause. Virginia v. Sebe|ius, 728 F. Supp. 2d 768 (E.D. Va.
At issue here, as in the other cases decided so Iar, is the assertion that the
Commerce C|ause can on|y reach individua|s and entities engaged in an "activity";
and because the p|aintiIIs maintain that an individua|´s Iai|ure to purchase hea|th
insurance is, a|most by deIinition, "inactivity," the individua| mandate goes beyond
the Commere C|ause and is unconstitutiona|. The deIendants contend that activity
is not required beIore Congress can exercise its Commerce C|ause pover, but that,
even iI it is required, not having insurance constitutes activity. The deIendants a|so
c|aim that the individua| mandate is sustainab|e Ior the "second reason" that it Ia||s
vithin the Necessary and Proper C|ause.
The Necessary and Proper C|ause is not rea||y a separate inquiry, but rather
is part and parce| oI the Commerce C|ause ana|ysis as it augments that enumerated
pover by authorizing Congress "To make a|| Lavs vhich sha|| be necessary and
proper" to regu|ate interstate commerce. See, e.g., Conza|es v. Paich, 545 U.S. 1,
22, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005); see a|so id. at 34-35, 39 (Sca|ia, J.,
concurring in judgment); accord Carcia v. Vanguard Car Penta| USA, lnc., 540 F.3d
1242, 1249 (11
Cir. 2008) (the Commerce C|ause pover is "the combination oI
the Commerce C|ause per se and the Necessary and Proper C|ause"). Neverthe|ess,
l vi|| consider the tvo arguments separate|y Ior ease oI ana|ysis, and because that
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BeIore addressing the individua| mandate, l must Iirst take up the issue oI
the p|aintiIIs´ standing to pursue this c|aim. l previous|y he|d on the motion to
dismiss that the individua| p|aintiIIs and NFlB had standing, but the deIendants
have re-raised the issue on summary judgment.
One oI the individua| p|aintiIIs, Mary Brovn, has Ii|ed a dec|aration in vhich
she avers, among other things. (i) that she is a sma|| business ovner and member
oI NFlB; (ii) that she does not current|y have hea|th insurance and has not had
hea|th insurance Ior the past Iour years; (iii) that she regu|ar|y uses her persona|
Iunds to meet her business expenses; (iv) that she is not e|igib|e Ior Medicaid or
Medicare and vi|| not be e|igib|e in 2014; (v) that she is subject to the individua|
mandate and objects to being required to comp|y as she does not be|ieve the cost
oI hea|th insurance is a vise or acceptab|e use oI her resources; (vi) that both she
and her business vi|| be harmed iI she is required to buy hea|th insurance that she
neither vants nor needs because it vi|| Iorce her to divert Iinancia| resources Irom
her other priorities, inc|uding running her business, and doing so vi|| "threaten my
abi|ity to maintain my ovn, independent business"; (vii) that she vou|d be Iorced
to reorder her persona| and business aIIairs because, "ív]e|| in advance oI 2014, l
must nov investigate vhether and hov to both obtain and maintain the required
insurance"; and |ast|y, (viii) that she "must a|so nov investigate the impact" that
comp|iance vith the individua| mandate vi|| have on her priorities and vhether she
is hov the deIendants have Iramed and presented their arguments. See DeI. Mem.
at 23 (contending that the individua| mandate is an essentia| part oI the regu|atory
hea|th care reIorm eIIort, and is thus "a|so a va|id exercise oI Congress´s authority
iI the provision is ana|yzed under the Necessary and Proper C|ause").
lt vas not necessary to address standing Ior the Medicaid cha||enge as the
deIendants did not dispute that the states cou|d pursue that c|aim.
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can maintain her business, or vhether, instead, she vi|| have to |ay oII emp|oyees,
c|ose her business, and seek emp|oyment that provides qua|iIying hea|th insurance
as a beneIit.
The other individua| p|aintiII, Kaj Ah|burg, has Ii|ed a dec|aration in vhich he
avers, inter a|ia. (i) that he is retired and ho|ds no present emp|oyment; (ii) that he
has not had hea|th care insurance Ior the past six years; (iii) that he has no desire
or intention to buy hea|th insurance as he is current|y, and expects to remain, ab|e
to pay Ior his and his Iami|y´s ovn hea|th care needs; (iv) that he is not e|igib|e Ior
Medicaid or Medicare and vi|| not be e|igib|e in 2014; (v) that he is subject to the
individua| mandate and he objects to being Iorced to comp|y vith it as it does not
represent "a sensib|e or acceptab|e use oI my Iinancia| resources" and vi|| Iorce
him "to divert Iunds Irom other priorities vhich l knov to be more important Ior
myse|I and my Iami|y"; and (vi) that he "must nov investigate" hov and vhether
to rearrange his Iinances "to ensure the avai|abi|ity oI suIIicient Iunds" to pay Ior
the required insurance premiums.
These dec|arations are adequate to support standing Ior the reasons set Iorth
and discussed at |ength in my prior opinion, vhich need not be repeated here in any
great detai|. To estab|ish standing to cha||enge a statute, a p|aintiII needs to shov
"a rea|istic danger oI sustaining a direct injury as a resu|t oI the statute´s operation
or enIorcement" íBabbitt v. United Farm Workers Nat´| Union, 442 U.S. 289, 298,
99 S. Ct. 2301, 60 L. Ed. 2d 895 (1979)]; that is "pegged to a suIIicient|y Iixed
period oI time" íACLU oI F|orida, lnc. v. Miami-Dade County Schoo| Bd., 557 F.3d
1177, 1194 (11
Cir. 2009)]; and vhich is not "mere|y hypothetica| or conjectura|"
íF|orida State ConIerence oI the NAACP v. Brovning, 522 F.3d 1153, 1161 (11
Cir. 2008)]. The individua| p|aintiIIs, Ms. Brovn in particu|ar, have estab|ished that
because oI the Iinancia| expense they vi|| deIinitive|y incur under the Act in 2014,
they are needing to take investigatory steps and make Iinancia| arrangements nov
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to ensure comp|iance then. That is enough to shov standing, as the c|ear majority
oI district courts to consider |ega| cha||enges to the individua| mandate have he|d.
See Coudy-Bachman v. U.S. Dep´t oI Hea|th & Human Servs., 2011 WL 223010,
at ¯4-¯7 (M.D. Pa. Jan. 24, 2011); Liberty Univ., lnc., supra, 2010 WL 4860299,
at ¯5-¯7; U.S. Citizens Assoc., supra, 2010 WL 4947043, at ¯3; Thomas More
Lav Center, supra, 720 F. Supp. 2d 882, 887-89; but see Ba|dvin v. Sebe|ius,
2010 WL 3418436, at ¯3 (S.D. Ca|. Aug. 27, 2010) (ho|ding that p|aintiII in that
case |acked standing to cha||enge individua| mandate on the grounds that by 2014
he may have secured insurance on his ovn). As the District Court Ior the Eastern
District oI Michigan proper|y noted in Thomas More Lav Center (a case on vhich
the deIendants heavi|y re|y because it u|timate|y uphe|d the individua| mandate).
"íT]he government is requiring p|aintiIIs to undertake an expenditure, Ior vhich the
government must anticipate that signiIicant Iinancia| p|anning vi|| be required. That
Iinancia| p|anning must take p|ace ve|| in advance oI the actua| purchase oI
insurance in 2014 . . . There is nothing improbab|e about the contention that the
lndividua| Mandate is causing p|aintiIIs to Iee| economic pressure today." Thomas
More Lav Center, supra, 720 F. Supp. 2d at 889.

Because the individua| p|aintiIIs have demonstrated standing, inc|uding NFlB
member Mary Brovn, that means (as a|so discussed in my ear|ier order) that NFlB
has associationa| standing as ve||. This |eaves the question oI the state p|aintiIIs´
standing to contest the individua| mandate --- an issue vhich vas not necessary to
reach on the motion to dismiss, but vhich the p|aintiIIs request that l address nov.
The state p|aintiIIs have raised severa| diIIerent grounds Ior standing. One oI
those grounds is that some oI the states have passed |egis|ation seeking to protect
l note that Thomas More Lav Center is on appea| to the Sixth Circuit, and
in their recent|y-Ii|ed appe||ate brieI the Department oI Justice has express|y
dec|ined to cha||enge the district court´s conc|usion that the p|aintiIIs had standing.
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their citizens Irom Iorced comp|iance vith the individua| mandate. For examp|e, on
March 17, 2010, beIore the Act passed into |av, p|aintiII ldaho enacted the ldaho
Hea|th Freedom Act, vhich provides in pertinent part.
(1) The pover to require or regu|ate a person's choice in
the mode oI securing hea|th care services, or to impose a
pena|ty re|ated thereto, is not Iound in the Constitution oI
the United States oI America, and is thereIore a pover
reserved to the peop|e pursuant to the Ninth Amendment,
and to the severa| states pursuant to the Tenth
Amendment. The state oI ldaho hereby exercises its
sovereign pover to dec|are the pub|ic po|icy oI the state
oI ldaho regarding the right oI a|| persons residing in the
state oI ldaho in choosing the mode oI securing hea|th
care services Iree Irom the imposition oI pena|ties, or the
threat thereoI, by the Iedera| government oI the United
States oI America re|ating thereto.
(2) lt is hereby dec|ared that . . . every person vithin the
state oI ldaho is and sha|| be Iree to choose or dec|ine to
choose any mode oI securing hea|th care services
vithout pena|ty or threat oI pena|ty by the Iedera|
government oI the United States oI America.
l.C. s 39-9003 (2010).
Simi|ar|y, on March 22, 2010, a|so beIore the Act became |av, Utah passed
|egis|ation dec|aring that the then-pending Iedera| government proposa|s Ior hea|th
care reIorm "inIringe on state povers" and "inIringe on the rights oI citizens oI this
state to provide Ior their ovn hea|th care" by "requiring a person to enro|| in a third
party payment system" and "imposing Iines on a person vho chooses to pay
direct|y Ior hea|th care rather than use a third party payer." See genera||y U.C.A.
1953 s 63M-1-2505.5.
Judge Henry Hudson considered simi|ar |egis|ation in one oI the tvo Virginia
cases. AIter engaging in a |engthy ana|ysis and Iu|| discussion oI the app|icab|e |av
ísee genera||y Virginia v. Sebe|ius, 702 F. Supp. 2d 598, 602-07 (E.D. Va. 2010)],
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he conc|uded that despite the statute´s dec|aratory nature, the Commonvea|th had
adequate standing to bring the suit insoIar as "ít]he mere existence oI the |avIu||y-
enacted statue is suIIicient to trigger the duty oI the Attorney Cenera| oI Virginia to
deIend the |av and the associated sovereign pover to enact it." See id. at 605-06.
l agree vith Judge Hudson´s thoughtIu| ana|ysis oI the issue and adopt it here. The
States oI ldaho and Utah, through p|aintiII Attorneys Cenera| Lavrence C. Wasden
and Mark L. Shurt|eII, have standing to prosecute this case based on statutes du|y
passed by their |egis|atures, and signed into |av by their Covernors.

ln sum, the tvo individua| p|aintiIIs (Brovn and Ah|burg), the association
(NFlB), and at |east tvo oI the states (ldaho and Utah) have standing to cha||enge
the individua| mandate. This e|iminates the need to discuss the standing issue vith
respect to the other state p|aintiIIs, or the other asserted bases Ior standing. See
Watt v. Energy Action Educ. Found., 454 U.S. 151, 160, 102 S. Ct. 205, 70 L.
Ed. 2d 309 (1981) ("Because ve Iind Ca|iIornia has standing, ve do not consider
the standing oI the other p|aintiIIs."); Vi||age oI Ar|ington Heights v. Metropo|itan
Housing Dev. Corp., 429 U.S. 252, 264 n.9, 97 S. Ct. 555, 50 L. Ed. 2d 450
(1977) ("Because oI the presence oI this p|aintiII, ve need not consider vhether
the other individua| and corporate p|aintiIIs have standing to maintain this suit.");
see a|so Mountain States Lega| Foundation v. C|ickman, 92 F.3d 1228, 1232 (D.C.
Cir. 1996) (iI standing is shovn Ior at |east one p|aintiII vith respect to each c|aim,
"ve need not consider the standing oI the other p|aintiIIs to raise that c|aim").
Having reaIIirmed that the p|aintiIIs have adequate standing to cha||enge the
individua| mandate, l vi|| consider vhether that provision is an appropriate exercise
oI pover under the Commerce C|ause, and, iI not, vhether it is sustainab|e under
l note that severa| other p|aintiII states passed simi|ar |avs aIter the Act
became |av and during the pendency oI this |itigation. Other states have simi|ar
|avs sti|| pending in their state |egis|atures.
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the Necessary and Proper C|ause. The Constitutiona|ity oI the individua| mandate is
the crux oI this entire case.
The current state oI Commerce C|ause |av has been summarized and deIined
by the Supreme Court on severa| occasions.
íW]e have identiIied three broad categories oI activity
that Congress may regu|ate under its commerce pover.
First, Congress may regu|ate the use oI the channe|s oI
interstate commerce. Second, Congress is empovered to
regu|ate and protect the instrumenta|ities oI interstate
commerce, or persons or things in interstate commerce,
even though the threat may come on|y Irom intrastate
activities. Fina||y, Congress´ commerce authority inc|udes
the pover to regu|ate those activities having a substantia|
re|ation to interstate commerce, i.e., those activities that
substantia||y aIIect interstate commerce.
United States v. Lopez, 514 U.S. 549, 558-59, 115 S. Ct. 1624, 131 L. Ed. 2d
626 (1995) (citations omitted); accord United States v. Morrison, 529 U.S. 598,
608-09, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000); see a|so Hode| v. Virginia
SurIace Min. & Pec|amation Assoc., lnc., 452 U.S. 264, 276-77, 101 S. Ct. 2352,
69 L. Ed. 2d 1 (1981); Perez v. United States, 402 U.S. 146, 150, 91 S. Ct. 1357,
28 L. Ed. 2d 686 (1971). lt is thus ve|| sett|ed that Congress has the authority
under the Commerce C|ause to regu|ate three --- and on|y three --- "categories oI
activity." Lopez, supra, 514 U.S. at 558; see a|so, e.g., Carcia v. Vanguard Car
Penta| USA, lnc., 540 F.3d 1242, 1249-51 (11
Cir. 2008) (discussing in detai|
the "three categories oI activities" that Congress can regu|ate); United States v.
Maxve||, 446 F.3d 1210, 1212 (11
Cir. 2006) (noting that, "to date," Congress
can regu|ate on|y "three categories oI activities"). The third category is the one at
issue in this case.
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As vi|| be seen, the "substantia||y aIIects" category is the most Irequent|y
disputed and "most hot|y contested Iacet oI the commerce pover." Carcia, supra,
540 F.3d at 1250. This is because, vhi|e under the Iirst tvo categories Congress
may regu|ate and protect actua| interstate commerce,
the third a||ovs Congress to regu|ate intrastate
noncommercia| activity, based on its eIIects.
Consideration oI eIIects necessari|y invo|ves matters oI
degree íand] thus poses not tvo hazards, |ike Scy||a and
Charybdis, but three. lI ve entertain too expansive an
understanding oI eIIects, the Constitution´s enumeration
oI povers becomes meaning|ess and Iedera| pover
becomes eIIective|y |imit|ess. lI ve entertain too narrov
an understanding, Congress is stripped oI its enumerated
pover, reinIorced by the Necessary and Proper C|ause, to
protect and contro| commerce among the severa| states.
lI ve emp|oy too nebu|ous a standard, ve exacerbate the
risk that judges vi|| substitute their ovn subjective or
po|itica| ca|cu|us Ior that oI the e|ected representatives oI
the peop|e, or vi|| appear to be doing so.
United States v. Patton, 451 F.3d 615, 622-23 (10
Cir. 2006). BeIore attempting
to navigate among these three "hazards," a Iu|| reviev oI the historica| roots oI the
commerce pover, and a discussion oI hov ve got to vhere ve are today, may be
ChieI Justice Marsha|| vrote in 1824, in the Iirst ever Commerce C|ause
case to reach the Supreme Court.
As men, vhose intentions require no concea|ment,
genera||y emp|oy the vords vhich most direct|y and apt|y
express the ideas they intend to convey, the en|ightened
patriots vho Iramed our constitution, and the peop|e vho
adopted it, must be understood to have emp|oyed vords
in their natura| sense, and to have intended vhat they
have said.
Cibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188, 6 L. Ed. 23 (1824). Justice Marsha||
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continued his opinion by noting that iI, "Irom the imperIection oI human |anguage,"
there are doubts as to the extent oI any pover authorized under the Constitution,
the under|ying object or purpose Ior vhich that pover vas granted "shou|d have
great inI|uence in the construction." ld. at 188-89. ln other vords, in determining
the Iu|| extent oI any granted pover, it may be he|pIu| to not on|y Iocus on vhat
the Constitution says (i.e., the actua| |anguage used), but a|so vhy it says vhat it
says (i.e., the prob|em or issue it vas designed to address). Both vi|| be discussed
in turn.
The Commerce C|ause is a mere sixteen vords |ong, and it provides that
Congress sha|| have the pover.
To regu|ate Commerce vith Ioreign Nations, and among
the severa| States, and vith the lndian Tribes.
U.S. Const. art l, s 8, c|. 3. For purposes oI this case, on|y seven vords are
re|evant. "To regu|ate Commerce . . . among the severa| States." There is
considerab|e historica| evidence that in the ear|y years oI the Union, the vord
"commerce" vas understood to encompass trade, and the intercourse, traIIic, or
exchange oI goods; in short, "the activities oI buying and se||ing that come aIter
production and beIore the goods come to rest." Pobert H. Bork & Danie| E. Troy,
Locating the Boundaries. The Scope oI Congress´s Pover to Pegu|ate Commerce,
25 Harv. J. L. & Pub. Po|´y 849, 861-62 (2002) ("Bork & Troy") (citing, inter a|ia,
dictionaries Irom that time vhich deIined commerce as "exchange oI one thing Ior
another"). ln a Irequent|y cited |av reviev artic|e, one Constitutiona| scho|ar has
painstaking|y ta||ied each appearance oI the vord "commerce" in Madison´s notes
on the Constitutiona| Convention and in The Federa|ist, and discovered that in none
oI the ninety-seven appearances oI that term is it ever used to reIer unambiguous|y
to activity beyond trade or exchange. See Pandy E. Barnett, The Origina| Meaning
oI the Commerce C|ause, 68 U. Chi. L. Pev. 101, 114-16 (2001) ("Barnett"); see
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 21 of 78
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a|so id. at 116 (Iurther examining each and every use oI the vord that appeared in
the state ratiIication convention reports and Iinding "the term vas uniIorm|y used
to reIer to trade or exchange"). Even a Constitutiona| scho|ar vho has argued Ior
an expansive interpretation oI the Commerce C|ause (and, in Iact, has been cited
to, and re|ied on, by the deIendants in this case) has acknov|edged that vhen the
Constitution vas draIted and ratiIied, commerce "vas the practica| equiva|ent oI
the vord ´trade.´" See Pobert L. Stern, That Commerce Which Concerns More
States than One, 47 Harv. L. Pev. 1335, 1346 (1934) ("Stern").
The Supreme Court´s Iirst description oI commerce (and sti|| the most vide|y
accepted) is Irom Cibbons v. Ogden, supra, vhich invo|ved a Nev York |av that
sought to |imit the navigab|e vaters vithin the jurisdiction oI that state. ln ho|ding
that "commerce" comprehended navigation, and thus it Ie|| vithin the reach oI the
Commerce C|ause, ChieI Justice Marsha|| exp|ained that "Commerce, undoubted|y,
is traIIic, but it is something more. it is intercourse. lt describes the commercia|
intercourse betveen nations, and parts oI nations, in a|| its branches, and is
regu|ated by prescribing ru|es Ior carrying on that intercourse." 22 U.S. at 72. This
deIinition is consistent vith accepted dictionary deIinitions oI the Founders´ time.
See 1 Samue| Johnson, A Dictionary oI the Eng|ish Language (4
ed. 1773)
(commerce deIined as "lntercourse; exchange oI one thing Ior another; interchange
oI any thing; trade; traIIick"). And it remained a good deIinition oI the Supreme
Court´s Commerce C|ause interpretation throughout the Nineteenth Century. See,
e.g., Kidd v. Pearson, 128 U.S. 1, 20-21, 9 S. Ct. 6, 32 L. Ed. 346 (1888) ("The
|ega| deIinition oI the term ícommerce] . . . consists in intercourse and traIIic,
inc|uding in these terms navigation and the transportation and transit oI persons
and property, as ve|| as the purchase, sa|e, and exchange oI commodities"). As
A|exander Hami|ton intimated in The Federa|ist, hovever, it did not at that time
encompass manuIacturing or agricu|ture. See The Federa|ist No. 34, at 212-13
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 22 of 78
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(noting that the "encouragement oI agricu|ture and manuIactures" vas to remain
an object oI state expenditure). This interpretation oI commerce as being primari|y
concerned vith the commercia| intercourse associated vith the trade or exchange
oI goods and commodities is consistent vith the origina| purpose oI the Commerce
C|ause (discussed immediate|y be|ov), vhich is entit|ed to "great inI|uence in íits]
construction." See Cibbons, supra, 22 U.S. at 188-89.
There is no doubt historica||y that the primary purpose behind the Commerce
C|ause vas to give Congress pover to regu|ate commerce so that it cou|d e|iminate
the trade restrictions and barriers by and betveen the states that had existed under
the Artic|es oI ConIederation. Such obstructions to commerce vere destructive to
the Union and be|ieved to be precursors to var. The Supreme Court has exp|ained
this rationa|e.
When victory re|ieved the Co|onies Irom the pressure Ior
so|idarity that var had exerted, a driIt tovard anarchy
As an historica| aside, l note that pursuant to this origina| understanding
and interpretation oI "commerce," insurance contracts did not qua|iIy because
"íi]ssuing a po|icy oI insurance is not a transaction oI commerce." Pau| v. Virginia,
75 U.S. (8 Wa||.) 168, 183, 19 L. Ed. 357 (1868) (Iurther exp|aining that insurance
contracts "are not artic|es oI commerce in any proper meaning oI the vord" as
they are not objects "oI trade and barter," nor are they "commodities to be shipped
or Iorvarded Irom one State to another, and then put up Ior sa|e"). That changed
in 1944, vhen the Supreme Court he|d that Congress cou|d regu|ate the insurance
business under the Commerce C|ause. United States v. South-Eastern Undervriters
Assoc., 322 U.S. 533, 64 S. Ct. 1162, 88 L. Ed. 1440 (1944). "Concerned that
íthis] decision might undermine state eIIorts to regu|ate insurance, Congress in
1945 enacted the McCarran-Ferguson Act. Section 1 oI the Act provides that
´continued regu|ation and taxation by the severa| States oI the business oI
insurance is in the pub|ic interest,´ and that ´si|ence on the part oI the Congress
sha|| not be construed to impose any barrier to the regu|ation or taxation oI such
business by the severa| States.´" Humana lnc. v. Forsyth, 525 U.S. 299, 306, 119
S. Ct. 710, 142 L. Ed.2d 753 (1999) (quoting 15 U.S.C. s 1011). Thus, ever since
passage oI the McCarran-Ferguson Act, the insurance business has continued to be
regu|ated a|most exc|usive|y by the states.
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and commercia| varIare betveen states began . . . íE]ach
state vou|d |egis|ate according to its estimate oI its ovn
interests, the importance oI its ovn products, and the
|oca| advantages or disadvantages oI its position in a
po|itica| or commercia| viev. This came to threaten at
once the peace and saIety oI the Union. The so|e purpose
Ior vhich Virginia initiated the movement vhich
u|timate|y produced the Constitution vas to take into
consideration the trade oI the United States; to examine
the re|ative situations and trade oI the said states; to
consider hov Iar a uniIorm system in their commercia|
regu|ation may be necessary to their common interest and
their permanent harmony and Ior that purpose the
Cenera| Assemb|y oI Virginia in January oI 1786 named
commissioners and proposed their meeting vith those
Irom other states.
The desire oI the ForeIathers to Iedera|ize regu|ation oI
Ioreign and interstate commerce stands in sharp contrast
to their jea|ous preservation oI pover over their interna|
aIIairs. No other Iedera| pover vas so universa||y
assumed to be necessary, no other state pover vas so
readi|y re|iníq]uished. There vas no desire to authorize
Iedera| interIerence vith socia| conditions or |ega|
institutions oI the states. Even the Bi|| oI Pights
amendments vere Iramed on|y as a |imitation upon the
povers oI Congress. The states vere quite content vith
their severa| and diverse contro|s over most matters but,
as Madison has indicated, "vant oI a genera| pover over
Commerce |ed to an exercise oI this pover separate|y, by
the States, vhich not on|y proved abortive, but
engendered riva|, conI|icting and angry regu|ations."
H.P. Hood & Sons, lnc. v. Du Mond, 336 U.S. 525, 533-34, 69 S. Ct. 657, 93 L.
Ed. 865 (1949) (citations and quotations omitted). The Ioregoing is a Irequent|y
repeated history |esson Irom the Supreme Court. ln his concurring opinion in the
|andmark 1824 case oI Cibbons v. Ogden, supra, Ior examp|e, Justice Johnson
provided a simi|ar historica| summary.
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For a century the States ías British co|onies] had
submitted, vith murmurs, to the commercia| restrictions
imposed by the parent State; and nov, Iinding
themse|ves in the un|imited possession oI those povers
over their ovn commerce, vhich they had so |ong been
deprived oI, and so earnest|y coveted, that se|Iish
princip|e vhich, ve|| contro||ed, is so sa|utary, and vhich,
unrestricted, is so unjust and tyrannica|, guided by
inexperience and jea|ousy, began to shov itse|I in
iniquitous |avs and impo|itic measures, Irom vhich grev
up a conI|ict oI commercia| regu|ations, destructive to the
harmony oI the States, and Iata| to their commercia|
interests abroad.
This vas the immediate cause, that |ed to the Iorming oI
a convention.
Cibbons, supra, 22 U.S. at 224. ln the Supreme Court´s 1888 decision in Kidd v.
Pearson, Justice Lamar noted that "it is a matter oI pub|ic history that the object oI
vesting in congress the pover to regu|ate commerce . . . among the severa| states
vas to insure uniIormity Ior regu|ation against conI|icting and discriminatory state
|egis|ation." See Kidd, supra, 128 U.S. at 21. More recent|y, Justice Stevens has
advised that vhen "construing the scope oI the pover granted to Congress by the
Commerce C|ause . . . íi]t is important to remember that this c|ause vas the
Framers´ response to the centra| prob|em that gave rise to the Constitution itse|I,"
that is, the Founders had "´set out on|y to Iind a vay to reduce trade restrictions.´"
See EEOC v. Wyoming, 460 U.S. 226, 244-45, 103 S. Ct. 1054, 75 L. Ed. 2d 18
(1983) (Stevens, J., concurring). The Ioregoing history is so "vide|y shared," ísee
id. at 245 n.1], that Constitutiona| scho|ars vith opposing vievs on the Commerce
C|ause readi|y agree on this point. Compare Stern, supra, at 1344 ("There can be
no question, oI course, that in 1787 ívhen] the Iramers and ratiIiers oI the
Constitution . . . considered the need Ior regu|ating ´commerce vith Ioreign nations
and among the severa| states,´ they vere thinking on|y in terms oI . . . the remova|
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oI barriers obstructing the physica| movements oI goods across state |ines."), vith
Bork & Troy, supra, at 858, 865 ("One thing is certain. the Founders turned to a
Iedera| commerce pover to carve stabi|ity out oI this commercia| anarchy" and
"keep the States Irom treating one another as hosti|e Ioreign povers"; in short,
"the C|ause vas draIted to grant Congress the pover to craIt a coherent nationa|
trade po|icy, to restore and maintain viab|e trade among the states, and to prevent
interstate var."). Hami|ton and Madison both shared this concern that conI|icting
and discriminatory state trade |egis|ation "vou|d natura||y |ead to outrages, and
these to reprisa|s and vars." The Federa|ist No. 7, at 37 (Hami|ton); see a|so The
Federa|ist No. 42, at 282 (Madison) (reIerencing the "unceasing animosities" and
"serious interruptions oI the pub|ic tranqui|ity" that vou|d inevitab|y I|ov Irom the
|ack oI nationa| commerce pover).
To acknov|edge the Ioregoing historica| Iacts is not necessari|y to say that
the pover under the Commerce C|ause vas intended to (and must) remain |imited
to the trade or exchange oI goods, and be conIined to the task oI e|iminating trade
barriers erected by and betveen the states.
The draIters oI the Constitution vere
avare that they vere preparing an instrument Ior the ages, not one suited on|y Ior
the exigencies oI that particu|ar time. See, e.g., McCu||och, supra, 17 U.S. at 415
(the Constitution vas "intended to endure Ior ages to come" and "to be adapted to
the various crises oI human aIIairs") (Marsha||, C.J.); Weems v. United States, 217
U.S. 349, 373, 30 S. Ct. 544, 54 L. Ed. 793 (1910) (exp|aining that constitutions
A|though there is some evidence that is exact|y vhat Madison, at |east,
had intended. ln one oI his |etters, he vrote that the Commerce C|ause "´grev out
oI the abuse oI the pover by the importing States in taxing the non-importing, and
vas intended as a negative and preventive provision against injustice among the
States themse|ves, rather than as a pover to be used Ior the positive purposes oI
the Cenera| Covernment.´" West Lynn Creamery, lnc. v. Hea|y, 512 U.S. 186, 193
n.9, 114 S. Ct. 2205, 129 L. Ed. 2d 157 (1994) (quoting 3 M. Farrand, Pecords oI
the Federa| Convention oI 1787, p. 478 (1911)).
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"are not ephemera| enactments, designed to meet passing occasions," but rather
are "designed to approach immorta|ity as near|y as human institutions can approach
it . . . íand], thereIore, our contemp|ation cannot be on|y oI vhat has been, but oI
vhat may be"); accord Nev York v. United States, 505 U.S. 144, 157, 112 S. Ct.
2408, 120 L. Ed. 2d 120 (1992) (the Constitution vas "phrased in |anguage broad
enough to a||ov Ior the expansion" oI Iedera| pover and a||ov "enormous changes
in the nature oI government"). As Hami|ton exp|ained.
Constitutions oI civi| government are not to be Iramed
upon a ca|cu|ation oI existing exigencies, but upon a
combination oI these vith the probab|e exigencies oI
ages, according to the natura| and tried course oI human
aIIairs. Nothing, thereIore, can be more Ia||acious than to
inIer the extent oI any pover, proper to be |odged in the
nationa| government, Irom an estimate oI its immediate
necessities. There ought to be a capacity to provide Ior
Iuture contingencies as they may happen; and as these
are i||imitab|e in their nature, it is impossib|e saIe|y to |imit
that capacity.
The Federa|ist No. 34, at 210-11 (emphasis in origina|).
Thus, the exercise and interpretation oI the commerce pover has evo|ved
and undergone a signiIicant change "as the needs oI a dynamic and constant|y
expanding nationa| economy have changed." See EEOC, supra, 460 U.S. at 246
(Stevens, J., concurring). But, l vi|| begin at the beginning.
Some have maintained that the Commerce C|ause pover began as, and vas
intended to remain, a narrov and |imited one. See, e.g., Paou| Berger, Federa|ism.
The Founders Design (1987) (arguing that the Iounders sought to create a |imited
Iedera| government vhose pover, inc|uding the commerce pover, vas narrov in
scope); Barnett, supra, at 146 (conc|uding that "the most persuasive evidence oI
origina| meaning . . . strong|y supports íthe] narrov interpretation oI Congress´s
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pover íunder the Commerce C|ause]"). Despite evidence to support this position, it
is diIIicu|t to prove decisive|y because Ior the Iirst century oI our history the C|ause
vas se|dom invoked by Congress (iI at a||), and then on|y negative|y to prevent the
interIerence vith commerce by individua| states. This necessari|y means that there
is a |ack oI ear|y congressiona| and judicia| pronouncements on the subject. This, in
turn, makes it harder to conc|usive|y determine hov Iar the commerce pover vas
origina||y intended to reach. lt vas not unti| 1824 (more than three decades aIter
ratiIication) that the Supreme Court vas Iirst ca||ed upon in Cibbons v. Ogden to
consider the commerce pover. By that time, it vou|d appear that the C|ause vas
given a rather expansive treatment by ChieI Justice Marsha||, vho vrote.
íThe commerce pover] is the pover to regu|ate; that is,
to prescribe the ru|e by vhich commerce is to be
governed. This pover, |ike a|| others vested in Congress,
is comp|ete in itse|I, may be exercised to its utmost
extent, and acknov|edges no |imitations, other than are
prescribed in the constitution . . . lI, as has a|vays been
understood, the sovereignty oI Congress, though |imited
to speciIied objects, is p|enary as to those objects, the
pover over commerce vith Ioreign nations, and among
the severa| States, is vested in Congress as abso|ute|y as
it vou|d be in a sing|e government, having in its
constitution the same restrictions on the exercise oI the
pover as are Iound in the constitution oI the United
States. The visdom and the discretion oI Congress, their
identity vith the peop|e, and the inI|uence vhich their
constituents possess at e|ections, are, in this, as in many
other instances . . . the so|e restraints on vhich they
have re|ied, to secure them Irom its abuse.
Cibbons, supra, 22 U.S. at 75. Notvithstanding this seeming|y broad interpretation
oI Congress´ pover to negate Nev York´s assertion oI authority over its navigab|e
vaters, it vas not unti| 1887, one hundred years aIter ratiIication, that Congress
Iirst exercised its pover to aIIirmative|y and positive|y regu|ate commerce among
the states. And vhen it did, the Supreme Court at that time rejected the broad
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conception oI commerce and the pover oI Congress to regu|ate the economy vas
sharp|y restricted. See, e.g., Kidd v. Pearson, supra (1888). Thus, Ior most oI the
Iirst century and a ha|I oI Constitutiona| government (vith the possib|e exception
oI Cibbons v. Ogden in 1824), the C|ause vas narrov|y construed and given
"miser|y construction." See EEOC, supra, 460 U.S. at 246 (Stevens, J., concurring)
(citing Kidd, supra, 128 U.S. at 20-21 (manuIacturing not subject to the commerce
pover oI Congress); United States v. E.C. Knight Co., 156 U.S. 1, 12-16, 15 S.
Ct. 249, 39 L. Ed. 325 (1895) (manuIacturing monopo|y not subject to commerce
pover); Adair v. United States, 208 U.S. 161, 178-179, 28 S. Ct. 277, 52 L. Ed.
436 (1908) (connection betveen interstate commerce and membership in a |abor
union insuIIicient to authorize Congress to make it a crime Ior an interstate carrier
to Iire emp|oyee Ior his union membership); Hammer v. Dagenhart, 247 U.S. 251,
276, 38 S. Ct. 529, 62 L. Ed. 1101 (1918) (Congress vithout pover to prohibit
the interstate transportation oI goods produced vith chi|d |abor); Carter v. Carter
Coa| Co., 298 U.S. 238, 298, 308-10, 56 S. Ct. 855, 80 L. Ed. 1160 (1936)
(ho|ding that commerce pover does not extend to the regu|ation oI vages, hours,
and vorking conditions oI coa| miners; deIining commerce --- consistent vith the
origina| understanding oI the term --- as "the equiva|ent oI the phrase ´intercourse
Ior the purposes oI trade´")).
For examp|e, in A.L.A. Schechter Pou|try Corp. v. United States, 295 U.S.
495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935), a case ve|| knovn to Iirst year |av
students, the Court inva|idated regu|ations Iixing emp|oyee hours and vages in an
intrastate business because the activity being regu|ated on|y re|ated to interstate
commerce "indirect|y." The Supreme Court characterized the distinction betveen
"direct" and "indirect" eIIects on interstate commerce as "a Iundamenta| one,
essentia| to the maintenance oI our constitutiona| system," Ior vithout it "there
vou|d be virtua||y no |imit to the Iedera| pover and Ior a|| practica| purposes ve
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shou|d have a comp|ete|y centra|ized government." ld. at 548.
But, everything changed in 1937, beginning vith the Iirst oI three signiIicant
Nev Dea| cases. ln N.L.P.B. v. Jones & Laugh|in Stee| Corp., 301 U.S. 1, 57 S. Ct.
615, 81 L. Ed. 893 (1937), the Supreme Court, aIter recognizing the ve|| knovn
princip|e "that acts vhich direct|y burden or obstruct interstate or Ioreign
commerce, or its Iree I|ov, are vithin the reach oI the congressiona| pover" ísee
id. at 31], he|d Ior the Iirst time that Congress cou|d a|so regu|ate pure|y intrastate
activities that cou|d be said to have a "substantia| eIIect" on interstate commerce.
"A|though activities may be intrastate in character vhen separate|y considered, iI
they have such a c|ose and substantia| re|ation to interstate commerce that their
contro| is essentia| or appropriate to protect that commerce Irom burdens and
obstructions, Congress cannot be denied the pover to exercise that contro|." ld. at
37. The question vas nov "the eIIect upon interstate commerce oI the íintrastate
activity] invo|ved." ld. at 40 (emphasis added).
Four years |ater, in United States v. Darby, 312 U.S. 100, 61 S. Ct. 451, 85
L. Ed. 609 (1941), the Supreme Court overru|ed Hammer v. Dagenhart, supra. ln
upho|ding the vage and hour requirements in the Fair Labor Standards Act, and its
suppression oI substandard |abor conditions, the Court reaIIirmed that vith respect
to intrastate "transactions" and "activities" having a substantia| eIIect on interstate
commerce, Congress may regu|ate them vithout doing vio|ence to the Constitution.
See id. at 118-23.
And then came Wickard v. Fi|burn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed.
122 (1942), vhich, unti| recent|y, vas vide|y considered the most Iar-reaching
expansion oI Commerce C|ause regu|atory authority over intrastate activity. At
issue in Wickard vere amendments to the Agricu|tura| Adjustment Act oI 1938
that set acreage a||otments Ior vheat Iarmers in an eIIort to contro| supp|y and
avoid surp|uses that cou|d resu|t in abnorma||y |ov vheat prices. The p|aintiII in
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that case, Poscoe Fi|burn, ovned a sma|| Iarm on vhich he raised and harvested
vheat, among other things. When he exceeded his a||otment by 12 acres (vhich
yie|ded 239 bushe|s oI vheat), he vas pena|ized under the statute. A|though the
intended disposition oI the crop invo|ved in the case vas not "express|y stated,"
íid. at 114], the Supreme Court assumed and ana|yzed the issue as though the
excess vheat vas "not intended in any part Ior commerce but vho||y Ior
consumption on the Iarm." See id. at 118. Even though production oI such vheat
"may not be regarded as commerce" in the strictest sense oI the vord, ísee id. at
125], consumption on the Iarm satisIied needs that vou|d (theoretica||y, at |east)
be othervise Ii||ed by another purchase or commercia| transaction. See id. at 128
(exp|aining that homegrovn vheat "supp|ies a need oI the man vho grev it vhich
vou|d othervise be reI|ected by purchases in the open market íand] in this sense
competes vith vheat in commerce"). ln ho|ding that Congress had pover under
the Commerce C|ause to regu|ate production intended Ior persona| consumption,
the Supreme Court stated.
íE]ven iI appe||ee´s activity be |oca| and though it may not
be regarded as commerce, it may sti||, vhatever its
nature, be reached by Congress iI it exerts a substantia|
economic eIIect on interstate commerce and this
irrespective oI vhether such eIIect is vhat might at some
ear|ier time have been deIined as "direct" or "indirect."
¯ ¯ ¯
That appe||ee´s ovn contribution to the demand Ior
vheat may be trivia| by itse|I is not enough to remove
him Irom the scope oI Iedera| regu|ation vhere, as here,
his contribution, taken together vith that oI many others
simi|ar|y situated, is Iar Irom trivia|.
ld. at 125, 127-28. The |atter statement is common|y knovn and described as the
"aggregation princip|e." lt a||ovs Congress under the Commerce C|ause to reach a
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"c|ass oI activities" that have a substantia| impact on interstate commerce vhen
those activities are aggregated vith a|| simi|ar and re|ated activities --- even though
the activities vithin the c|ass may be themse|ves trivia| and insigniIicant. See, e.g.,
Mary|and v. Wirtz, 392 U.S. 183, 192-93, 196 n.27, 88 S. Ct. 2017, 20 L. Ed. 2d
1020 (1968) (any c|aim that revieving courts have the pover to excise, as trivia|,
individua| activity vithin a broader c|ass oI activities "has been put entire|y to rest"
as the "de minimis character oI individua| instances arising under íthe] statute is oI
no consequence"). To i||ustrate this princip|e, as app|ied in Wickard, even though
Fi|burn´s 239 bushe|s vere presumab|y Ior his ovn consumption and seed, and did
not signiIicant|y impact interstate commerce, iI every Iarmer in the country did the
same thing, the aggregate impact on commerce vou|d be cumu|ative|y substantia|.
Together, Jones & Laugh|in Stee|, Darby, and Wickard either "ushered in" a
nev era oI Commerce C|ause jurisprudence "that great|y expanded the previous|y
deIined authority oI Congress under that C|ause" íLopez, supra, 514 U.S. at 556],
or they mere|y "restored" the "broader viev oI the Commerce C|ause announced
by ChieI Justice Marsha||." Perez, supra, 402 U.S. at 151. Pegard|ess oI vhether
the cases represented a nev era or simp|y a restoration oI the o|d, it seemed that
Irom that point Iorvard congressiona| action under the Commerce C|ause vas to
be given virtua||y insurmountab|e deIerence. See Kenneth K|ukovski, Citizen Cun
Pights. lncorporating the Second Amendment Through the Privi|eges or lmmunities
C|ause, 39 N.M. L. Pev. 195, 232-33 (2009) (noting that in these Nev Dea| cases
"the Court read the Commerce C|ause so broad|y that it is a bo|d statement to say
that the provision even nomina||y constrained Iedera| action"). And, indeed, Irom
the Nev Dea| period through the next Iive decades, not a sing|e Iedera| |egis|ative
enactment vas struck dovn as exceeding Congress´ pover under the Commerce
C|ause pover --- unti| Lopez in 1995.
ln United States v. Lopez the Supreme Court considered the Constitutiona|ity
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oI the Cun Free Schoo| Zones Act oI 1990, vhich crimina|ized the possession oI a
Iirearm in a schoo| zone. ln ho|ding that the statute exceeded Congress´ authority
under the Commerce C|ause, the Supreme Court began by recognizing the "Iirst
princip|es" behind the |imitations on Iedera| pover as set Iorth in the Constitution.
See supra, 514 U.S. at 552. Then, aIter detai|ing the history and transIormation oI
Commerce C|ause jurisprudence --- Irom Cibbons, to A.L.A. Schechter Pou|try, and
up through Wickard --- the Court observed that even in cases vhich had interpreted
the Commerce C|ause more expansive|y, every decision to date had recognized that
the pover granted by the C|ause is necessari|y "subject to outer |imits" vhich, iI
not recognized and respected, cou|d |ead to Iedera| action that vou|d "eIIectua||y
ob|iterate the distinction betveen vhat is nationa| and vhat is |oca| and create a
comp|ete|y centra|ized government." See genera||y id. at 553-57. Consistent vith
those |imits, the Lopez Court stated "ve have identiIied three broad categories oI
activity that Congress may regu|ate under its commerce pover." See id. at 558
(emphasis added). The "substantia||y aIIects" category vas the one at issue there,
and in ho|ding that the statute did not pass muster thereunder, the Supreme Court
Iocused on Iour considerations. (i) the activity being regu|ated (guns near schoo|s)
vas not economic in nature; (ii) the statute did not contain jurisdictiona||y |imiting
|anguage; (iii) Congress did not make any Iorma| Iindings concerning the eIIect oI
the regu|ated activity on commerce; and (iv) the connection betveen that activity
and its eIIect on commerce vas attenuated. See genera||y id. at 559-67.
As Ior the Iourth consideration, the Court imp|ied|y conceded the c|aims by
the government and the dissent that. (1) gun-re|ated vio|ence is a serious nationa|
prob|em vith substantia| costs that are spread throughout the popu|ation; (2) such
vio|ence has adverse eIIects on c|assroom |earning (vhich can resu|t in decreased
productivity) and discourages trave|ing into areas Ie|t to be unsaIe; a|| oI vhich, in
turn, (3) represents a substantia| threat to interstate commerce. The Lopez majority
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made a point to "pause to consider the imp|ications" oI such arguments, hovever.
See id. at 563-65. lt Iound that iI such theories vere suIIicient to justiIy regu|ation
under the Commerce c|ause (even though their under|ying |ogic and truth vere not
questioned), "it is diIIicu|t to perceive any |imitation on Iedera| pover" and "ve are
hard pressed to posit any activity by an individua| that Congress is vithout pover
to regu|ate." See id. at 564. To accept such arguments and upho|d the statute, the
majority conc|uded, vou|d require the Court.
. . . to pi|e inIerence upon inIerence in a manner that
vou|d bid Iair to convert congressiona| authority under
the Commerce C|ause to a genera| po|ice pover oI the
sort retained by the States. Admitted|y, some oI our prior
cases have taken |ong steps dovn that road, giving great
deIerence to congressiona| action. The broad |anguage in
these opinions has suggested the possibi|ity oI additiona|
expansion, but ve dec|ine here to proceed any Iurther. To
do so vou|d require us to conc|ude that the
Constitution's enumeration oI povers does not
presuppose something not enumerated, and that there
never vi|| be a distinction betveen vhat is tru|y nationa|
and vhat is tru|y |oca|. This ve are unvi||ing to do.
ld. at 567-68; see a|so id. at 578, 580 (exp|aining that it is the Court´s duty to
"recognize meaningIu| |imits on the commerce pover" and intervene iI Congress
"has tipped the sca|es too Iar" as Iedera| ba|ance "is too essentia| a part oI our
constitutiona| structure and p|ays too vita| a ro|e in securing Ireedom") (Kennedy,
J., concurring) .
The next signiIicant Commerce C|ause case to be decided by the Supreme
Court vas the 2000 case oI United States v. Morrison, supra, 529 U.S. at 598,
vhich invo|ved a cha||enge to the Vio|ence Against Women Act oI 1994. The
government argued in that case --- simi|ar to vhat it did in Lopez --- that Congress
cou|d regu|ate gender-motivated vio|ence based on a sy||ogistic theory that victims
oI such vio|ence are deterred Irom trave|ing and engaging in interstate business or
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emp|oyment; they are thus |ess productive (and incur increased medica| and other
costs); a|| oI vhich, in turn, substantia||y aIIects interstate commerce. See id. at
615. The Court began its ana|ysis by recognizing the Ioundationa| princip|e that the
pover oI the Iedera| government is "deIined and |imited" and thereIore. "Every |av
enacted by Congress must be based on one or more oI its povers enumerated in
the Constitution." See id. at 607. lt emphasized that vhi|e the |ega| ana|ysis oI the
Commerce C|ause "has changed as our Nation has deve|oped," vhich has resu|ted
in Congress having "considerab|y greater |atitude in regu|ating conduct and
transactions under the Commerce C|ause than our previous case |av permitted,"
authority under the C|ause "is not vithout eIIective bounds." See id. at 607-08.
The Court then |ooked to the Iour "signiIicant considerations" that vere identiIied
in Lopez and Iound that, "ív]ith these princip|es under|ying our Commerce C|ause
jurisprudence as reIerence points, the proper reso|ution oI the present cases is
c|ear." See id. at 610-13. First, the statute at issue in Morrison did not regu|ate
economic activity.
Cender-motivated crimes oI vio|ence are not, in any sense
oI the phrase, economic activity. Whi|e ve need not
adopt a categorica| ru|e against aggregating the eIIects oI
any noneconomic activity in order to decide these cases,
thus Iar in our Nation's history our cases have uphe|d
Commerce C|ause regu|ation oI intrastate activity on|y
vhere that activity is economic in nature.
ld. at 613. Further, the statute did not contain jurisdictiona||y |imiting |anguage; and
vhi|e it vas supported, in contrast to Lopez, vith numerous congressiona| Iindings
regarding the persona|, Iami|ia|, and economic impact oI gender-motivated vio|ence,
those Iindings vere insuIIicient to sustain the |egis|ation as they re|ied on the same
"method oI reasoning that ve have a|ready rejected as unvorkab|e iI ve are to
maintain the Constitution´s enumeration oI povers." ld. at 615. ln other vords, it
vou|d require the Court "to pi|e inIerence upon inIerence," and, in the process, run
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the risk oI "comp|ete|y ob|iteratíing] the Constitution´s distinction betveen nationa|
and |oca| authority." See id.
ln |ight oI the circumscriptia| ru|ings in Lopez and Morrison, many vere
surprised by the Supreme Court´s subsequent decision in Conza|es v. Paich, 545
U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005), vhich vas not on|y seen as a
return to the more expansive Commerce C|ause jurisprudence ísee, e.g., Matthev
Far|ey, Cha||enging Supremacy. Virginia´s Pesponse to the Patient Protection and
AIIordab|e Care Act, 45 U. Pich. L. Pev. 37, 65 (2010)], but vas, in Iact, vieved
by some as even going beyond and "disp|acing" Wickard as the most Iar-reaching
oI a|| Commerce C|ause cases. See Doug|as W. Kmiec, Conza|es v. Paich. Wickard
v. Fi|burn Disp|aced, 2005 Cato Sup. Ct. Pev. 71 (2005).
At issue in Paich vas vhether Congress had authority under the Commerce
and Necessary and Proper C|auses to prohibit, via the Contro||ed Substances Act,
"the |oca| cu|tivation and use oI marijuana in comp|iance vith Ca|iIornia |av." See
Paich, supra, 545 U.S. at 5. The marijuana at issue, vhich vas being used by tvo
serious|y i|| vomen Ior medicina| purposes pursuant to state |av, had been neither
bought nor so|d and never crossed state |ines. lt vas, and is, i||ega| in most states,
and does not have a |ega| Iree market in interstate commerce, the norma| attribute
oI any economic ana|ysis. Neverthe|ess, the Supreme Court began its ana|ysis by
stating. "Our case |av Iirm|y estab|ishes Congress´ pover to regu|ate pure|y |oca|
activities that are part oI an economic ´c|ass oI activities´ that have a substantia|
eIIect on interstate commerce." ld. at 17. The Court Iound Wickard to be "striking"
in simi|arity and "oI particu|ar re|evance" to the ana|ysis as that case "estab|ishes
that Congress can regu|ate pure|y intrastate activity that is not itse|I ´commercia|,´
in that it is not produced Ior sa|e, iI it conc|udes that Iai|ure to regu|ate that c|ass
oI activity vou|d undercut regu|ation oI the interstate market in that commodity."
ld. at 17-18. The Court he|d that Congress had a "rationa| basis" Ior Iinding that
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|eaving home-consumed marijuana outside oI Iedera| contro| vou|d aIIect the price
and market conditions Ior that commodity because, as vas noted in Wickard, the
"production oI the commodity meant Ior home consumption, be it vheat or
marijuana, has a substantia| eIIect on supp|y and demand in the nationa| market Ior
that commodity." See id. at 19. Surprising|y, "ít]hat the market in Paich happened
to be an i||ega| one did not aIIect the Court´s ana|ysis in the |east." Maxve||, supra,
446 F.3d at 1214.
The E|eventh Circuit has indicated that the distinguishing Ieature betveen
Paich and Wickard on the one hand, and Morrison and Lopez on the other, "vas
the comprehensiveness oI the economic component oI the regu|ation." Maxve||,
supra, 446 F.3d at 1214. The statute in Lopez, Ior examp|e, vas a brieI, sing|e-
subject crimina| statute that did not regu|ate any economic activity. By contrast,
the statute in Paich vas a broader |egis|ative scheme "at the opposite end oI the
regu|atory spectrum." Supra, 545 U.S. at 24. lt vas "a |engthy and detai|ed statute
creating a comprehensive Iramevork Ior regu|ating the production, distribution, and
possession oI ícontro||ed substances]," vhich vere "activities" the Supreme Court
determined to be "quintessentia||y economic" in nature. See id. at 24-25. The Court
reached this conc|usion by "quite broad|y deIiníing] ´economics´ as ´the production,
distribution, and consumption oI commodities.´" See Maxve||, supra, 446 F.3d at
1215 n.4 (quoting Paich, supra, 545 U.S. at 25-26, in turn quoting Webster´s Third
Nev lnternationa| Dictionary 720 (1966)).
Unsurprising|y, the p|aintiIIs re|y heavi|y on Lopez and Morrison in Iraming
ln objecting to the majority´s use oI this "broadest possib|e" deIinition,
Justice Thomas argued in dissent that "economics" is not deIined as broad|y in
other dictionaries, and "the majority does not exp|ain vhy it se|ects a remarkab|y
expansive 40-year-o|d deIinition." Paich, supra, 545 U.S. at 69 and n.7 (Thomas,
J., dissenting).
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their arguments, vhi|e the deIendants, oI course, |ook principa||y to Wickard and
Paich. These cases (a|ong vith the others discussed above) a|| have something to
add to the discussion. Hovever, vhi|e they Irame the ana|ysis, and are important
Irom a historica| perspective, they do not by themse|ves reso|ve this case. That is
because, as Congress´ attorneys in the Congressiona| Pesearch Service ("CPS")
and Congressiona| Budget OIIice ("CBO") advised |ong beIore the Act vas passed
into |av, the notion oI Congress having the pover under the Commerce C|ause to
direct|y impose an individua| mandate to purchase hea|th care insurance is "nove|"
and "unprecedented." See JenniIer Staman & Cynthia Brougher, Congressiona|
Pesearch Service, Pequiring lndividua|s to Obtain Hea|th lnsurance. A Constitutiona|
Ana|ysis, Ju|y 24, 2009, at 3, 6 ("vhether Congress can use its Commerce C|ause
authority to require a person to buy a good or a service" raises a "nove| issue" and
"most cha||enging question") ("CPS Ana|ysis"); Congressiona| Budget OIIice
Memorandum, The Budgetary Treatment oI an lndividua| Mandate to Buy Hea|th
lnsurance, August 1994 ("A mandate requiring a|| individua|s to purchase hea|th
insurance vou|d be an unprecedented Iorm oI Iedera| action.") ("CBO Ana|ysis").
Never beIore has Congress required that everyone buy a product Irom a private
company (essentia||y Ior |iIe) just Ior being a|ive and residing in the United States.
The individua| mandate diIIers Irom the regu|ations in Wickard and Paich,
Ior examp|e, in that the individua|s being regu|ated in those cases vere engaged in
an activity (regard|ess oI vhether it cou|d readi|y be deemed interstate commerce
in itse|I) and each had the choice to discontinue that activity and avoid pena|ty.
See, e.g., Wickard v. Fi|burn, 317 U.S. 111, 130, 63 S. Ct. 82, 87 L. Ed. 122
(1942) (noting Congress "gave the Iarmer a choice" oI severa| options under the
statute). Here, peop|e have no choice but to buy insurance or be pena|ized. And
their Ireedom is actua||y more restricted as they do not even have a choice as to
the minimum |eve| or type oI insurance to buy because Congress estab|ished the
I|oor. A sing|e tventy-year o|d man or voman vho on|y needs and vants major
medica| or catastrophic coverage, Ior examp|e, is prec|uded Irom buying such a
po|icy under the Act.
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As l exp|ained in my ear|ier order, the Iact that |egis|ation is unprecedented
does not by itse|I render it unconstitutiona|. To the contrary, a|| Iedera| |egis|ation
carries vith it a "presumption oI constitutiona|ity." Morrison, supra, 529 U.S. at
607. Hovever, the presumption is arguab|y veakened, and an "absence oI pover"
might reasonab|y be inIerred vhere --- as here --- "ear|ier Congresses avoided use
oI this high|y attractive pover." Printz v. United States, 521 U.S. 898, 905, 908,
117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997); id. at 907-08 ("the utter |ack oI
statutes imposing ob|igations í|ike the one at issue in that case] (notvithstanding
the attractiveness oI that course to Congress), suggests an assumed absence oI
such pover") (emphasis in origina|); id. at 918 ("a|most tvo centuries oI apparent
congressiona| avoidance oI the practice íat issue] tends to negate the existence oI
the congressiona| pover asserted here").
The mere Iact that the deIendants have
tried to ana|ogize the individua| mandate to things |ike jury service, participation in
the census, eminent domain proceedings, Iorced exchange oI go|d bu||ion Ior paper
currency under the Co|d C|ause Cases, and required service in a "posse" under the
Judiciary Act oI 1789 (a|| oI vhich are obvious|y distinguishab|e) on|y underscores
and high|ights its unprecedented nature.
Hovever, unprecedented or not, l vi|| assume that the individua| mandate
can be Constitutiona| under the Commerce C|ause and vi|| ana|yze it according|y.
This ana|ysis requires the reso|ution oI tvo essentia| questions.
The thresho|d question that must be addressed is vhether activity is required
beIore Congress can exercise its pover under the Commerce C|ause. As previous|y
lndeed, as the p|aintiIIs have persuasive|y noted, not even in the context
oI insurance under the Nationa| F|ood lnsurance Program did Congress mandate
that a|| homeovners buy I|ood insurance direct|y Irom a private company. See P|.
Opp. at 26-27.
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discussed, Commerce C|ause jurisprudence has "´taken some turns,´" ísee Lopez,
supra, 514 U.S. at 579 (Kennedy, J., concurring)], and contracted and expanded
(and contracted and expanded again) during our nation´s deve|opment. But, in every
one oI the cases --- in both the contractive and expansive --- there has a|vays been
c|ear and inarguab|e activity, Irom exerting contro| over and using navigab|e vaters
(Cibbons) to groving or consuming marijuana (Paich).
ln a|| the cases discussed
above, the Supreme Court vas ca||ed upon to decide diIIerent issues (e.g., vhether
commerce encompassed navigation; vhether it inc|uded manuIacture and
agricu|ture or vas |imited to trade or exchange oI goods; vhether the activity at
issue vas interstate or intrastate and had a direct or indirect eIIect on commerce;
vhether that eIIect vas substantia|; vhether the activity vas economic or non-
economic; and vhether it vas part oI a sing|e-subject statute or a necessary and
essentia| component oI a broader comprehensive scheme), but it has never been
ca||ed upon to consider iI "activity" is required. On this point at |east, the district
courts that have reached opposite conc|usions on the individua| mandate agree.
Compare Thomas More Lav Center, supra, 720 F. Supp. 2d at 893 (noting that the
Supreme Court "has never needed to address the activity/inactivity distinction
advanced by p|aintiIIs because in every Commerce C|ause case presented thus Iar,
there has been some sort oI activity"; then proceeding to upho|d the individua|
mandate), vith Virginia, supra, 728 F. Supp. 2d at 781 (noting that "every
app|ication oI Commerce C|ause pover Iound to be constitutiona||y sound by the
The deIendants cite to Paich Ior the proposition that Congress may reach
"even vho||y intrastate, non-commercia| matters vhen it conc|udes that the Iai|ure
to do so vou|d undercut a |arger program regu|ating interstate commerce." See
DeI. Mem. at 13. By paraphrasing Paich here rather than quoting Irom the decision
the deIendants have attempted to obscure the importance oI "activity," Ior the
cited portion, and Justice Sca|ia´s concurrence (on vhich the deIendants a|so re|y),
do not ta|k at a|| oI "matters" --- either commercia| or not. They on|y mention (and
oIten) "activities."
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Supreme Court invo|ved some Iorm oI action, transaction, or deed p|aced in motion
by an individua| or |ega| entity"; then proceeding to strike dovn the individua|
The deIendants contend, hovever, that despite the inarguab|e presence oI
activity in every Supreme Court case to date, activity is not required under the
Commerce C|ause. See DeI. Mem. at 31 (maintaining that "there is no ´activity´
c|ause in the constitution"). ln Iact, they go so Iar as to suggest that to impose
such a requirement vou|d be bo|d and radica|. According to the deIendants,
because the Supreme Court has never identiIied a distinction betveen activity and
inactivity as a |imitation on Congress´ commerce pover, to ho|d othervise vou|d
"break nev |ega| ground" and be "nove|" and "unprecedented." See DeI. Opp. at 1,
2, 16. First, it is interesting that the deIendants --- apparent|y be|ieving the best
deIense is a good oIIense --- vou|d use the vords "nove|" and "unprecedented"
since, as previous|y noted, those are the exact same vords that the CPS and CBO
used to describe the individua| mandate beIore it became |av. Furthermore, there is
a simp|e and rather obvious reason vhy the Supreme Court has never distinguished
betveen activity and inactivity beIore. it has not been ca||ed upon to consider the
issue because, unti| nov, Congress had never attempted to exercise its Commerce
C|ause pover in such a vay beIore. See CBO Ana|ysis (advising Congress during
the previous hea|th care reIorm eIIorts in 1994 that "ít]he government has never
required peop|e to buy any good or service as a condition oI |avIu| residence in the
United States."). ln every Supreme Court case decided thus Iar, Congress vas not
seeking to regu|ate under its commerce pover something that cou|d even arguab|y
be said to be "passive inactivity."
l note that in Cibbons v. Ogden, vhere ChieI Justice Marsha|| "described
the Federa| Commerce pover vith a breadth never yet exceeded" íWickard, supra,
317 U.S. at 111], commerce vas deIined as "intercourse." Even that vord vou|d
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lt vou|d be a radica| departure Irom existing case |av to ho|d that Congress
can regu|ate inactivity under the Commerce C|ause. lI it has the pover to compe|
an othervise passive individua| into a commercia| transaction vith a third party
mere|y by asserting --- as vas done in the Act --- that compe||ing the actua|
transaction is itse|I "commercia| and economic in nature, and substantia||y aIIects
interstate commerce" ísee Act s 1501(a)(1)], it is not hyperbo|izing to suggest that
Congress cou|d do a|most anything it vanted. lt is diIIicu|t to imagine that a nation
vhich began, at |east in part, as the resu|t oI opposition to a British mandate giving
the East lndia Company a monopo|y and imposing a nomina| tax on a|| tea so|d in
America vou|d have set out to create a government vith the pover to Iorce peop|e
to buy tea in the Iirst p|ace. lI Congress can pena|ize a passive individua| Ior Iai|ing
to engage in commerce, the enumeration oI povers in the Constitution vou|d have
been in vain Ior it vou|d be "diIIicu|t to perceive any |imitation on Iedera| pover"
íLopez, supra, 514 U.S. at 564], and ve vou|d have a Constitution in name on|y.
Sure|y this is not vhat the Founding Fathers cou|d have intended. See id. at 592
(quoting Hami|ton at the Nev York Convention that there vou|d be just cause to
reject the Constitution iI it vou|d a||ov the Iedera| government to "penetrate the
recesses oI domestic |iIe, and contro|, in a|| respects, the private conduct oI
individua|s") (Thomas, J., concurring). ln Lopez, the Supreme Court struck dovn
the Cun Free Schoo| Zones Act oI 1990 aIter stating that, iI the statute vere to be
seem to carry vith it an imp|icit presumption oI at |east some sort oI preexisting
dea|ing betveen peop|e or entities. See 1 Samue| Johnson, A Dictionary oI the
Eng|ish Language (4
ed. 1773) (deIining "intercourse" as "Commerce; exchange"
and "Communication"). Furthermore, as one oI the amici notes in their brieI, the
vord "regu|ate" in the Commerce C|ause itse|I vou|d a|so appear to presuppose
action upon some object or activity that is a|ready extant (see doc. 121 at 4 n.1,
citing Samue| Johnson´s dictionary deIining "regu|ate" as "to adjust by ru|e or
method" or "to direct"). Thus, a regu|ator "comes to an existing phenomenon and
orders it." ld.
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uphe|d, "ve are hard pressed to posit any activity by an individua| that Congress is
vithout pover to regu|ate." See id. at 564. (emphasis added). lI some type oI
a|ready-existing activity or undertaking vere not considered to be a prerequisite to
the exercise oI commerce pover, ve vou|d go beyond the concern articu|ated in
Lopez Ior it vou|d be virtua||y impossib|e to posit anything that Congress vou|d be
vithout pover to regu|ate.
As previous|y noted, the Supreme Court has summarized and deIined the
current state oI the |av under the Commerce C|ause, and it has uniIorm|y and
consistent|y dec|ared that it app|ies to "three broad categories oI activity." Lopez,
supra, 514 U.S. at 558 (emphasis added); accord Morrison, supra, 529 U.S. at
608. lt has Iurther described the third category as "the pover to regu|ate those
activities having a substantia| re|ation to interstate commerce." Lopez, supra, 514
U.S. at 558-59 (emphasis added); accord Morrison, supra, 529 U.S. at 609; see
a|so Paich, supra, 545 U.S. at 17; Perez, 402 U.S. at 150; Wickard, supra, 317
U.S. at 124; Darby, supra, 312 U.S. at 119-20; Jones & Laugh|in Stee|, supra, 301
U.S. at 37. Without doubt, existing case |av thus extends on|y to those "activities"
that have a substantia| re|ationship to, or substantia||y aIIect, interstate commerce.
l am required to interpret this |av as the Supreme Court present|y deIines it. On|y
the Supreme Court can redeIine it or expand it Iurther --- a point imp|icit|y made by
one oI the deIendants´ ovn cited authorities. See Stern, supra, at 1363 (stating
that the Supreme Court had at one point in time on|y ta|ked about "movement" oI
goods across state |ines under the Commerce C|ause because it vas necessary to
decide those ear|ier cases and there had "been no need Ior a broader deIinition" oI
commerce; going on to opine that "it vou|d seem time|y that the Supreme Court"
expand the deIinition, as "the time has nov arrived Ior the íSupreme] Court to cut
|oose Irom the ´o|d´ approach and to se|ect the ´nev´ one") (emphasis added).
Having Iound that "activity" is an indispensab|e part the Commerce C|ause
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ana|ysis (at |east as current|y understood, deIined, and app|ied in Supreme Court
case |av), the Constitutiona|ity oI the individua| mandate vi|| turn on vhether the
Iai|ure to buy hea|th insurance is "activity."
Pre|iminari|y, based so|e|y on a p|ain reading oI the Act itse|I (and a common
sense interpretation oI the vord "activity" and its absence), l must agree vith the
p|aintiIIs´ contention that the individua| mandate regu|ates inactivity. Section 1501
states in re|evant part. "lI an app|icab|e individua| Iai|s to íbuy hea|th insurance],
there is hereby imposed a pena|ty." By its very ovn terms, thereIore, the statute
app|ies to a person vho does not buy the government-approved insurance; that is,
a person vho "Iai|s" to act pursuant to the congressiona| dictate. ln Iact, prior to
Iina| passage oI the Act, CPS attorneys advised Congress that it vas "unc|ear" iI
the individua| mandate had "so|id constitutiona| Ioundation" speciIica||y because.
One cou|d argue that vhi|e regu|ation oI the hea|th
insurance industry or the hea|th care system cou|d be
considered economic activity, regu|ating a choice to
purchase hea|th insurance is not. lt may a|so be
questioned vhether a requirement to purchase hea|th
insurance is rea||y a regu|ation oI an economic activity or
enterprise, iI individua|s vho vou|d be required to
purchase hea|th insurance are not, but Ior this regu|ation,
a part oI the hea|th insurance market. ln genera|,
Congress has used its authority under the Commerce
C|ause to regu|ate individua|s, emp|oyers, and others vho
vo|untari|y take part in some type oI economic activity.
Whi|e in Wickard and Paich, the individua|s vere
participating in their ovn home activities (i.e., producing
vheat Ior home consumption and cu|tivating marijuana
Ior persona| use), they vere acting oI their ovn vo|ition,
and this activity vas determined to be economic in nature
and aIIected interstate commerce. Hovever, íthe
individua| mandate] cou|d be imposed on some individua|s
vho engage in virtua||y no economic activity vhatsoever.
This is a nove| issue. vhether . . . this type oI required
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participation can be considered economic activity.
CPS Ana|ysis, supra, at 3, 6 (emphasis added).
The deIendants insist that the uninsured are active. ln Iact, they even go so
Iar as to make the c|aim --- vhich the p|aintiIIs ca|| "absurd" --- that going vithout
hea|th insurance constitutes "economic activity to an even greater extent than the
p|aintiIIs in Wickard or Paich." See DeI. Mem. at 29. They oIIer tvo (somevhat
over|apping) arguments vhy the appearance oI inactivity here is just an "i||usion."
C;;;G $K9#0DF?BFE9:#Q'@;OD9@9AAR#BS#EK9#%9=IEK#,=F9#3=FT9E#
The deIendants contend that there are three unique e|ements oI the hea|th
care market vhich, vhen vieved cumu|ative|y and in combination, be|ie the c|aim
that the uninsured are inactive.
First, as |iving and breathing human beings vho
are a|vays susceptib|e to sudden and unpredictab|e i||ness and injury, no one can
"opt out" oI the hea|th care market. Second, iI and vhen hea|th services are
sought, hospita|s are required by |av to provide care, regard|ess oI inabi|ity to pay.
And third, iI the costs incurred cannot be paid (vhich they Irequent|y cannot, given
the high cost oI medica| care), they are passed a|ong (cost-shiIted) to third parties,
vhich has economic imp|ications Ior everyone. Congress Iound that the uninsured
received approximate|y $43 bi||ion in "uncompensated care" in 2008 a|one. These
three things, according to the deIendants and various hea|th care industry experts
and scho|ars on vhom they re|y, are "rep|icated in no other market" and deIeat the
During ora| argument, the p|aintiIIs opposed deIining the re|evant market
broad|y as one Ior hea|th care, insisting that the on|y re|evant market Ior purposes
oI ana|yzing the individua| mandate is the more speciIic hea|th insurance market. l
agree that the p|aintiIIs´ position is the more precise and accurate. Every market
can be broad|y deIined in a vay that encompasses the speciIic characteristics one
seeks to reach or inc|ude. Nonethe|ess, l vi|| consider and examine the deIendants´
c|aim that the individua| mandate is justiIiab|e because the much broader "hea|th
care market" is purported|y unique.
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argument that uninsured individua|s are inactive.

First, it is not at a|| c|ear vhether or vhy the three a||eged|y unique Iactors
oI the hea|th care market are Constitutiona||y signiIicant. What iI on|y one oI the
three Iactors identiIied by the deIendants is present? AIter a||, there are |ots oI
markets --- especia||y iI deIined broad|y enough --- that peop|e cannot "opt out" oI.
For examp|e, everyone must participate in the Iood market. lnstead oI attempting
to contro| vheat supp|y by regu|ating the acreage and amount oI vheat a Iarmer
cou|d grov as in Wickard, under this |ogic, Congress cou|d more direct|y raise too-
|ov vheat prices mere|y by increasing demand through mandating that every adu|t
purchase and consume vheat bread dai|y, rationa|ized on the grounds that because
everyone must participate in the market Ior Iood, non-consumers oI vheat bread
adverse|y aIIect prices in the vheat market. Or, as vas discussed during ora|
argument, Congress cou|d require that peop|e buy and consume brocco|i at regu|ar
interva|s, not on|y because the required purchases vi|| positive|y impact interstate
commerce, but a|so because peop|e vho eat hea|thier tend to be hea|thier, and are
thus more productive and put |ess oI a strain on the hea|th care system. Simi|ar|y,
because virtua||y no one can be divorced Irom the transportation market, Congress
cou|d require that everyone above a certain income thresho|d buy a Cenera| Motors
automobi|e --- nov partia||y government-ovned --- because those vho do not buy
CM cars (or those vho buy Ioreign cars) are adverse|y impacting commerce and a
taxpayer-subsidized business.
l pause here to emphasize that the Ioregoing is not an irre|evant and IanciIu|
For examp|e, in their brieIs and during ora| argument, the deIendants cited
to and re|ied on the amicus brieI Ii|ed by an impressive |ist oI near|y Iorty economic
scho|ars, vho have urged that these "three observations . . . do not exist in other
contexts" and estab|ish that the uninsured are not inactive and passive bystanders,
but rather they "participate in the market Ior medica| services and necessari|y
aIIect the market Ior hea|th insurance" (doc. 125 at 6-13).
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"parade oI horrib|es." Pather, these are some oI the serious concerns imp|icated by
the individua| mandate that are being discussed and debated by |ega| scho|ars. For
examp|e, in the course oI deIending the Constitutiona|ity oI the individua| mandate,
and responding to the same concerns identiIied above, oIten-cited |av proIessor
and dean oI the University oI Ca|iIornia lrvine Schoo| oI Lav Ervin Chemerinsky
has opined that a|though "vhat peop|e choose to eat ve|| might be regarded as a
persona| |iberty" (and thus unregu|ab|e), "Congress cou|d use its commerce pover
to require peop|e to buy cars." See PeasonTV, Wheat, Weed, and Obamacare. Hov
the Commerce C|ause Made Congress A||-PoverIu|, August 25, 2010, avai|ab|e at.
http.// When l mentioned
this to the deIendants´ attorney at ora| argument, he a||oved Ior the possibi|ity that
"maybe Dean Chemerinsky is right." See Tr. at 69. ThereIore, the potentia| Ior this
assertion oI pover has received at |east some theoretica| consideration and has not
been ru|ed out as Constitutiona||y imp|ausib|e.
Or vhat iI tvo oI the purported "unique" Iactors --- inevitab|e participation
coup|ed vith cost-shiIting --- are present? For examp|e, virtua||y no one can opt out
oI the housing market (broad|y deIined) and a majority oI peop|e vi|| at some point
There is perhaps a genera| assumption that it is "ridicu|ous" to be|ieve that
Congress vou|d do such a thing, even though it cou|d. Hovever, beIore Wickard
vas decided, it is |ike|y that most peop|e (inc|uding |ega| scho|ars and judges)
vou|d have thought it equa||y "ridicu|ous" to be|ieve that Congress vou|d one day
seek (and be permitted) to regu|ate (as interstate commerce) the amount oI vheat
that a Iarmer grev on a sma|| private Iarm Ior his persona| consumption. ln any
event, even iI such an assumption is ve||-Iounded, "the |imitation oI congressiona|
authority is not so|e|y a matter oI |egis|ative grace." See Morrison, supra, 529 U.S.
at 616; see a|so id. at 616 n.7 (stating that |egis|ative pover is not |imited on|y by
"the Legis|ature´s se|I-restraint"); cI. United States v. Stevens, --- U.S. ---, 130 S.
Ct. 1577, 1591, 176 L. Ed. 2d 435 (2010) ("íT]he íConstitution] protects against
the Covernment; it does not |eave us at the mercy oI nob|esse ob|ige. We vou|d
not upho|d an unconstitutiona| statute mere|y because the Covernment promised to
use it responsib|y.").
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buy a home. The vast majority oI those homes vi|| be Iinanced vith a mortgage, a
|arge number oI vhich (particu|ar|y in diIIicu|t economic times, as ve have seen
most recent|y) vi|| go into deIau|t, thereby cost-shiIting bi||ions oI do||ars to third
parties and the Iedera| government. Shou|d Congress thus have pover under the
Commerce C|ause to preemptive|y regu|ate and require individua|s above a certain
income |eve| to purchase a home Iinanced vith a mortgage (and secured vith
mortgage guaranty insurance) in order to add stabi|ity to the housing and Iinancia|
markets (and to guard against the possibi|ity oI Iuture cost-shiIting because oI a
deIau|ted mortgage), on the theory that most everyone is current|y, or inevitab|y
one day vi|| be, active in the housing market?
ln a||uding to these same genera| concerns, another court has observed that
requiring advance purchase oI hea|th insurance based on a Iuture contingency that
vi|| substantia||y aIIect commerce cou|d a|so "app|y to transportation, housing, or
nutritiona| decisions. This broad deIinition oI the economic activity subject to
congressiona| regu|ation |acks |ogica| |imitation and is unsupported by Commerce
C|ause jurisprudence." See Virginia, supra, 728 F. Supp. 2d at 781. That the
deIendants´ argument is "unsupported by Commerce C|ause jurisprudence" can
perhaps best be seen by |ooking to Lopez. A|though that case is distinct Irom this
one in some notab|e vays (e.g., it invo|ved a brieI, sing|e-subject crimina| statute
that did not contain detai|ed |egis|ative Iindings), in the context oI the deIendants´
"hea|th care is unique" argument, it is quite simi|ar.
ln Lopez, the majority vas concerned that using the Commerce C|ause to
regu|ate things such as possession oI guns in schoo| zones vou|d "ob|iterate" the
distinction betveen vhat is nationa| and vhat is |oca| and eIIective|y create a
centra|ized government that cou|d potentia||y permit Congress to begin regu|ating
"any and a|| aspects" oI our |ives, inc|uding marriage, divorce, chi|d custody, and
education. The dissent insisted that this concern vas unIounded because the
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statute at issue vas "aimed at curbing a particu|ar|y acute threat" oI vio|ence in
schoo|s that had "singu|ar|y disruptive potentia|." Supra, 514 U.S. at 624 (Breyer,
J., dissenting). Pe|ying on "empirica| evidence . . . documented by scho|ars," the
dissent high|ighted the |ink betveen education and the nationa| economy and "the
specia| vay in vhich guns and education are incompatib|e." See id. The impact on
commerce, it vas urged, derived Irom the uncha||enged Iact that "vio|ent crime in
schoo| zones has brought about a dec|ine in the qua|ity oI education" vhich, in
turn, has "an adverse impact on interstate commerce." See id. at 623 (citation and
quotation marks omitted). This vas "the rare case, then, that a statute strikes at
conduct that (vhen considered in the abstract) seems so removed Irom commerce,
but vhich (practica||y speaking) has so signiIicant an impact upon commerce." ld.
(a|| emphasis added).
Tvo things become apparent aIter reading these arguments attempting to
justiIy extending Commerce C|ause pover to the |egis|ation in that case, and the
majority opinion (vhich is the contro||ing precedent) rejecting those same
arguments. First, the contention that Commerce C|ause pover shou|d be uphe|d
mere|y because the government and its experts or scho|ars c|aim that it is being
exercised to address a "particu|ar|y acute" prob|em that is "singu|arí ]," "specia|,"
and "rare" --- that is to say "unique" --- vi|| not by itse|I vin the day. Uniqueness is
not an adequate |imiting princip|e as every market prob|em is, at some |eve| and in
some respects, unique. lI Congress asserts pover that exceeds its enumerated
povers, then it is unconstitutiona|, regard|ess oI the purported uniqueness oI the
context in vhich it is being asserted.
Second, and perhaps more signiIicant|y, under Lopez the causa| |ink betveen
vhat is being regu|ated and its eIIect on interstate commerce cannot be attenuated
and require a court "to pi|e inIerence upon inIerence," vhich is, in my viev, exact|y
vhat vou|d be required to upho|d the individua| mandate. For examp|e, in contrast
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to individua|s vho grov and consume marijuana or vheat (even in extreme|y sma||
amounts), the mere status oI being vithout hea|th insurance, in and oI itse|I, has
abso|ute|y no impact vhatsoever on interstate commerce (not "s|ight," "trivia|," or
"indirect," but no impact vhatsoever) --- at |east not any more so than the status
oI being vithout any particu|ar good or service. lI impact on interstate commerce
vere to be expressed and ca|cu|ated mathematica||y, the status oI being uninsured
vou|d necessari|y be represented by zero. OI course, any other Iigure mu|tip|ied by
zero is a|so zero. Consequent|y, the impact must be zero, and oI no eIIect on
interstate commerce. The uninsured can on|y be said to have a substantia| eIIect
on interstate commerce in the manner as described by the deIendants. (i) iI they
get sick or injured; (ii) iI they are sti|| uninsured at that speciIic point in time; (iii) iI
they seek medica| care Ior that sickness or injury; (iv) iI they are unab|e to pay Ior
the medica| care received; and (v) iI they are unab|e or unvi||ing to make payment
arrangements direct|y vith the hea|th care provider, or vith assistance oI Iami|y,
Iriends, and charitab|e groups, and the costs are thereaIter shiIted to others. ln my
viev, this is the sort oI pi|ing "inIerence upon inIerence" rejected in Lopez, supra,
514 U.S. at 567, and subsequent|y described in Morrison as "unvorkab|e iI ve are
to maintain the Constitution´s enumeration oI povers." Supra, 529 U.S. at 615.
l do not mean to suggest that these inIerences are i||ogica| or unreasonab|e
to drav. As did the majority in Lopez and Morrison, l do not dispute or question
their under|ying existence. lndeed, vhi|e $43 bi||ion in uncompensated care Irom
l suppose it is a|so possib|e to contend that being uninsured impacts the
economy because (regard|ess oI vhether the uninsured receive care that is cost-
shiIted to others) peop|e vithout insurance tend to be |ess hea|thy and thus |ess
productive. This seems to be the basis oI one oI Congress´ Iindings. See Act s
1501(a)(2)(E) (Iinding that the nationa| economy "|oses up to $207,000,000,000 a
year because oI the poorer hea|th and shorter |iIespan oI the uninsured"). Hovever,
such a c|aim vou|d be simi|ar to the argument that vas rejected in Morrison, i.e.,
that victims oI gender-motivated vio|ence a|so tend to be |ess productive.
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2008 vas on|y 2% oI nationa| hea|th care expenditures Ior that year, it is c|ear|y a
|arge amount oI money; and it demonstrates that a number oI the uninsured are
taking the Iive sequentia| steps. And vhen they do, Congress p|ain|y has the pover
to regu|ate them at that time (or even at the time that they initia||y seek medica|
care), a Iact vith vhich the p|aintiIIs agree. But, to cast the net vide enough to
reach everyone in the present, vith the expectation that they vi|| (or cou|d) take
those steps in the Iuture, goes beyond the existing "outer |imits" oI the Commerce
C|ause and vou|d, l be|ieve, require inIerentia| |eaps oI the sort rejected in Lopez.
To the extent the deIendants have suggested it is "empty Iorma|ism" íDeI. Mem.
at 16] to ho|d that the uninsured can be regu|ated at the time they seek or Iai| to
pay Ior medica| care (but not beIore) the Supreme Court has exp|ained.
Much oI the Constitution is concerned vith setting Iorth
the Iorm oI our government, and the courts have
traditiona||y inva|idated measures deviating Irom that
Iorm. The resu|t may appear "Iorma|istic" in a given case
to partisans oI the measure at issue, because such
measures are typica||y the product oI the era´s perceived
necessity. But the Constitution protects us Irom our ovn
best intentions. lt divides pover among sovereigns and
among branches oI government precise|y so that ve may
resist the temptation to concentrate pover in one
|ocation as an expedient so|ution to the crisis oI the day
. . . . íA] judiciary that |icensed extra-constitutiona|
government vith each issue oI comparab|e gravity vou|d,
in the |ong run, be Iar vorse íthan the crisis itse|I].
Nev York, supra, 505 U.S. at 187.
ln short, the deIendants´ argument that peop|e vithout hea|th insurance are
active|y engaged in interstate commerce based on the purported "unique" Ieatures
oI the much broader hea|th care market is neither Iactua||y convincing nor |ega||y
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The deIendants next contend that the uninsured have made the ca|cu|ated
decision to engage in market timing and try to Iinance their Iuture medica| needs
out-oI-pocket rather than through insurance, and that this "economic decision" is
tantamount to activity. The p|aintiIIs respond by suggesting that it is "a remarkab|e
exaggeration oI íthe] rationa| aspects oI human nature" to c|aim that the uninsured
(as a ru|e) make structured and ca|cu|ated decisions to Iorego insurance and engage
in market timing, as opposed to simp|y not having it. See Tr. at 16 ("A|| ve knov
is some peop|e do not have insurance and some peop|e do"). The p|aintiIIs describe
the deIendants´ argument on this point "Orve||ian," because they seek "to redeIine
the inactivity oI not having hea|thcare insurance as an aIIirmative economic activity
oI ´deciding´ not to buy insurance, or deciding nov hov to pay (or not to pay) Ior
potentia| Iuture economic activity in the Iorm oI obtaining medica| services." See
P|. Opp. at 10 (emphasis in origina|). This "economic decision" argument has been
accepted by tvo district courts, Liberty Univ., lnc., supra, 2010 WL 4860299, at
¯15; Thomas More Lav Center, supra, 720 F. Supp. 2d at 893-94. For examp|e, in
Liberty University, the District Court Ior the Western District oI Virginia stated that
"by choosing to Iorego insurance, P|aintiIIs are making an economic decision to try
to pay Ior hea|th care services |ater, out oI pocket, rather than nov, through the
purchase oI insurance," and conc|uded that these decisions constitute economic
activity "íb]ecause oI the nature oI supp|y and demand, P|aintiII´s choices direct|y
The deIendants a|so suggest that the uninsured are "active" in the hea|th
insurance market --- and thereIore can be regu|ated and Iorced to buy insurance ---
because a |arge percentage oI them have had insurance vithin the past year. The
deIendants have provided no authority Ior the suggestion that once someone is in
the hea|th insurance market at a particu|ar point in time, they are Iorever in that
market, a|vays subject to regu|ation, and not ever permitted to |eave.
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aIIect the price oI insurance in the market, vhich Congress set out in the Act to
contro|." See 2010 WL 4860299, at ¯15.
The prob|em vith this |ega| rationa|e, hovever, is it vou|d essentia||y have
un|imited app|ication. There is quite |itera||y no decision that, in the natura| course
oI events, does not have an economic impact oI some sort. The decisions oI
vhether and vhen (or not) to buy a house, a car, a te|evision, a dinner, or even a
morning cup oI coIIee a|so have a Iinancia| impact that --- vhen aggregated vith
simi|ar economic decisions --- aIIect the price oI that particu|ar product or service
and have a substantia| eIIect on interstate commerce. To be sure, it is not diIIicu|t
to identiIy an economic decision that has a cumu|ative|y substantia| eIIect on
interstate commerce; rather, the diIIicu|t task is to Iind a decision that does not.
Some oI our visest jurists have pointed out the threat that |ies in an over-
expansive Commerce C|ause construction. The vords that Judge Learned Hand
vrote in 1935 are even truer today.
ln an industria| society bound together by means oI
transport and communication as rapid and certain as ours,
it is id|e to seek Ior any transaction, hovever apparent|y
iso|ated, vhich may not have an eIIect e|sevhere; such a
society is an e|astic medium vhich transmits a|| tremors
throughout its territory; the on|y question is oI their size.
United States v. A.LA. Schechter Pou|try Corp., 76 F.2d 617, 624 (2d Cir. 1935),
aII´d in part and rev´d in part, supra, 295 U.S. at 554 (noting in an e|astic society
|ike ours everything aIIects commerce in the sense that "ím]otion at the outer rim
is communicated perceptib|y, though minute|y, to recording instruments at the
center;" but to ho|d that everything may thus be regu|ated under the Commerce
C|ause "vi|| be an end to our Iedera| system") (Cardozo, J., concurring). As the
As vas discussed at the hearing, even persona| decisions about vhether
to marry, vhom to marry, or vhether to have chi|dren cou|d a|so be characterized
as "economic decisions."
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Supreme Court emphasized in Morrison, supra. "´ln a sense any conduct in this
interdependent vor|d oI ours has an u|timate commercia| origin or consequence,
but ve have not yet said the commerce pover may reach so Iar.´" 529 U.S. at 611
(quoting Lopez, supra, 514 U.S. at 580 (Kennedy, J., concurring)); accord Patton,
supra, 451 F.3d at 628 (exp|aining that everything cou|d be said to aIIect interstate
commerce "in the same sense in vhich a butterI|y I|apping its vings in China might
bring about a change oI veather in Nev York," but iI a|| things aIIecting interstate
commerce vere he|d to be vithin Congress´ regu|atory pover, "the Constitution´s
enumeration oI povers vou|d have been in vain").
Attempting to deI|ect this rather common sense rebutta| to their argument,
the deIendants emphasized during ora| argument that it is not just the "economic
decision" itse|I that renders the Iai|ure to buy insurance activity; rather, it is that
decision coup|ed vith the Iact that the uninsured are guaranteed access to medica|
care in hospita| emergency rooms as a "backstop," the use oI vhich can and does
shiIt costs onto third parties. The deIendants thus reIer to the Iai|ure to buy hea|th
insurance as a "Iinancing decision." Hovever, this is essentia||y true oI any and a||
Iorms oI insurance. lt cou|d just as easi|y be said that peop|e vithout buria|, |iIe,
supp|ementa| income, credit, mortgage guaranty, business interruption, or disabi|ity
insurance have made the exact same or simi|ar economic and Iinancing decisions
based on their expectation that they vi|| not incur a particu|ar risk at a particu|ar
point in time; or that iI they do, it is more beneIicia| Ior them to se|I-insure and try
to meet their ob|igations out-oI-pocket, but a|vays vith the beneIit oI "backstops"
provided by |av, inc|uding bankruptcy protection and other government-Iunded
Iinancia| assistance and services. See, e.g., Katie Zezima, lndigent Buria|s Are On
the Pise, Nev York Times, Oct. 11, 2009, at A23 (reporting the number oI buria|s
oI those vho die vith insuIIicient assets are increasing across the country, up 50%
in Oregon, and that Iunera| expenses are Irequent|y borne by governmenta| entities;
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noting that l||inois a|one budgets $12 mi||ion Ior these expenses). The "economic
decision" to Iorego virtua||y any and a|| types oI insurance can (and cumu|ative|y
do) simi|ar|y resu|t in signiIicant cost-shiIting to third parties.
The important distinction is that "economic decisions" are a much broader
and Iar-reaching category than are "activities that substantia||y aIIect interstate
commerce." Whi|e the |atter necessari|y encompasses the Iirst, the reverse is not
true. "Economic" cannot be equated to "commerce." And "decisions" cannot be
equated to "activities." Every person throughout the course oI his or her |iIe makes
hundreds or even thousands oI |iIe decisions that invo|ve the same genera| sort oI
thought process that the deIendants maintain is "economic activity." There vi|| be
no stopping point iI that shou|d be deemed the equiva|ent oI activity Ior Commerce
C|ause purposes.
To the extent that peop|e dying vithout buria| insurance is by itse|I not as
severe a prob|em as peop|e vithout hea|th insurance --- and l readi|y acknov|edge
it is not --- that is mere|y a diIIerence in degree, not in kind. The Iact that peop|e
vithout hea|th insurance pose a more serious prob|em than peop|e vithout buria|
insurance may give Congress more oI a reason to act; but it does not give it more
Constitutiona| authority to do so. See United States v. A.LA. Schechter Pou|try
Corp., 76 F.2d 617, 624 (2d Cir. 1935) (noting that "emergency does not create
the pover íoI Congress to act], but it may Iurnish the occasion Ior the exercise oI
the pover conIerred by the Constitution"), aII´d in part and rev´d in part, 295 U.S.
495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935).
For examp|e, iI the decision to Iorego insurance qua|iIies as activity, then
presumab|y the decision to not use that insurance once it has been obtained is a|so
activity. The government acknov|edged during ora| argument in Virginia v. Sebe|ius
that a|though peop|e are required to buy hea|th insurance under the Act, they are
not yet required to use it. See Transcript oI Ora| Argument on DeIendants´ Motion
to Dismiss, Ju|y 1, 2010, at 26 ("the statute doesn´t require anybody to íactua||y]
get medica| services"); see a|so id. at 30 ("Congress isn´t saying go see a doctor,
or you have to go. What Congress is saying is you have to purchase hea|th
insurance."). But vhat happens iI the nev|y-insured (as a c|ass) do not seek
preventive medica| care? Because Congress Iound in the Act that the economy
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The Commerce C|ause origina||y app|ied to the trade and exchange oI goods
as it sought to e|iminate trade barriers by and betveen the states. Over the years,
the C|ause´s reach has been expanded Irom covering actua| interstate commerce
(and its channe|s and instrumenta|ities) to intrastate activities that substantia||y
aIIect interstate commerce. lt has even been app|ied to activities that invo|ve the
mere consumption oI a product (even iI there is no |ega| commercia| interstate
market Ior that product). To nov ho|d that Congress may regu|ate the so-ca||ed
"economic decision" to not purchase a product or service in anticipation oI Iuture
consumption is a "bridge too Iar." lt is vithout |ogica| |imitation and Iar exceeds
the existing |ega| boundaries estab|ished by Supreme Court precedent.
Because l Iind both the "uniqueness" and "economic decision" arguments
unpersuasive, l conc|ude that the individua| mandate seeks to regu|ate economic
inactivity, vhich is the very opposite oI economic activity. And because activity is
required under the Commerce C|ause, the individua| mandate exceeds Congress´
commerce pover, as it is understood, deIined, and app|ied in the existing Supreme
Court case |av.
The deIendants contend that the individua| mandate is "a|so a va|id exercise
oI Congress´s authority iI the provision is ana|yzed under the Necessary and Proper
C|ause." See DeI. Mem. at 23. This argument has been appropriate|y ca||ed "the
|ast, best hope oI those vho deIend u|tra vires congressiona| action." See Printz,
supra, 521 U.S. at 923. Oversimp|iIied, the deIendants´ argument on this point can
be reduced to the Io||oving. (i) the Act bans insurers Irom denying hea|th coverage
|oses money each year "because oI the poorer hea|th and shorter |iIespan oI the
uninsured" ísee supra note 19], it vou|d seem on|y |ogica| under the deIendants´
rationa|e that Congress may a|so regu|ate the "economic decisions" not to go to
the doctor Ior regu|ar check-ups and screenings to improve hea|th and |ongevity,
vhich, in turn, is intended and expected to increase economic productivity.
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(guaranteed issue), or charging higher premiums (community rating), to individua|s
vith pre-existing medica| conditions (vhich increases the insurers´ costs); (ii) as a
resu|t oI these bans, individua|s vi|| be incentivized to de|ay obtaining insurance as
they are nov guaranteed coverage iI they get sick or injured (vhich decreases the
insurers´ revenues); and (iii) as a resu|t oI the Ioregoing, there vi|| be Iever hea|thy
peop|e in the insured poo| (vhich vi|| raise the premiums and costs Ior everyone).
Consequent|y, it is necessary to require that everyone "get in the poo|" so as to
protect the private hea|th insurance market Irom inevitab|e co||apse.
At the outset, l note that in United States v. Comstock, --- U.S. ---, 130 S.
Ct. 1949, 176 L. Ed. 2d 878 (2010), the Supreme Court´s most recent discussion
and app|ication oI the Necessary and Proper C|ause, the Court identiIied and |ooked
to Iive "considerations" that inIormed its decision about vhether the |egis|ation at
issue vas sustainab|e. (1) the breadth oI the Necessary and Proper C|ause; (2) the
history oI Iedera| invo|vement in the re|evant arena, and the modest addition to that
arena; (3) the sound reasons Ior the |egis|ation in |ight oI the government´s interest;
(4) the statute´s accommodation oI state interests; and (5) its narrov scope. lt is
not entire|y c|ear iI this constitutes a "Iive-Iactor test," as Justice Thomas urged in
dissent, see id. at 1974, or vhether the "considerations" vere mere|y Iactors that
the majority be|ieved re|evant to deciding that particu|ar case. To the extent that
they constitute a "test," the individua| mandate c|ear|y gets a Iai|ing score on at
|east tvo (and possib|y a coup|e more) oI the Iive e|ements. A statute mandating
that everyone purchase a product Irom a private company or be pena|ized (mere|y
by virtue oI being a|ive and a |avIu| citizen) is not a "modest" addition to Iedera|
invo|vement in the nationa| hea|th care market, nor is it "narrov íin] scope." l vi||
assume, hovever, that the Comstock "considerations" vere just that, and that
they did not bring about any Iundamenta| change in the Court´s |ong estab|ished
Necessary and Proper C|ause ana|ysis.
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The Necessary and Proper C|ause provides that Congress sha|| have the
To make a|| Lavs vhich sha|| be necessary and proper Ior
carrying into Execution the Ioregoing Povers, and a||
other Povers vested by this Constitution in the
Covernment oI the United States, or in any Department
or OIIicer thereoI.
U.S. Const. art. l, s 8, c|. 18 (emphasis added). The Supreme Court has repeated|y
he|d, and the emphasized text makes c|ear, that the C|ause is not an independent
source oI Iedera| pover; rather, it is simp|y "a caveat that the Congress possesses
a|| the means necessary to carry out the speciIica||y granted ´Ioregoing´ povers oI
ísection] 8 ´and a|| other Povers vested by this Constitution.´ ílt] is ´but mere|y a
dec|aration, Ior the remova| oI a|| uncertainty, that the means oI carrying into
execution those (povers) othervise granted are inc|uded in the grant.´" Kinse||a v.
United States ex re|. Sing|eton, 361 U.S. 234, 247, 80 S. Ct. 297, 4 L. Ed. 2d 268
(1960); see a|so Paich, supra, 545 U.S. at 39 (Sca|ia, J., concurring in judgment)
(stating that, vhi|e the C|ause "empovers Congress to enact |avs . . . that are not
vithin its authority to enact in iso|ation," those |avs must be "in eIIectuation oI
íCongress´] enumerated povers"); Kansas v. Co|orado, 206 U.S. 46, 88, 27 S. Ct.
655, 51 L. Ed. 956 (1907) (stating that the Necessary and Proper C|ause "is not
the de|egation oI a nev and independent pover, but simp|y provision Ior making
eIIective the povers theretoIore mentioned").
Hami|ton vrote the Io||oving in response to the concern voiced by some that
the Necessary and Proper C|ause --- and the Supremacy C|ause as ve|| --- cou|d be
used to expand Iedera| pover and destroy |iberties.
These tvo c|auses have been the source oI much viru|ent
invective and petu|ant dec|amation against the proposed
Constitution. They have been he|d up to the peop|e in a||
the exaggerated co|ors oI misrepresentation as the
pernicious engines by vhich their |oca| governments vere
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to be destroyed and their |iberties exterminated; as the
hideous monster vhose devouring javs vou|d spare
neither sex nor age, nor high nor |ov, nor sacred nor
proIane; and yet, strange as it may appear, aIter a|| this
c|amor, to those vho may not have happened to
contemp|ate them in the same |ight, it may be aIIirmed
vith perIect conIidence, that the constitutiona| operation
oI the intended government vou|d be precise|y the same,
iI these c|auses vere entire|y ob|iterated, as iI they vere
repeated in every artic|e. They are on|y dec|aratory oI a
truth, vhich vou|d have resu|ted by necessary and
unavoidab|e imp|ication Irom the very act oI constituting
a Iedera| government, and vesting it vith certain speciIic
The Federa|ist No. 33, at 204-05. To the extent there vas anything to Iear in the
Constitution, Hami|ton exp|ained, it must be Iound in the speciIic povers that vere
enumerated and not in the Necessary and Proper C|ause, Ior though the |atter "may
be chargeab|e vith tauto|ogy or redundancy, íit] is at |east perIect|y harm|ess." See
id. at 206. Madison concurred vith this viev. See The Federa|ist No. 44, at 302
(exp|aining that the C|ause is entire|y redundant Ior iI it had been omitted, "there
can be no doubt" that the same pover and authority "vou|d have resu|ted to the
government, by unavoidab|e imp|ication"). lI these advocates Ior ratiIication had
any ink|ing that, in the ear|y tventy-Iirst century, government proponents oI the
individua| hea|th insurance mandate vou|d attempt to justiIy such an assertion oI
pover on the basis oI this C|ause, they probab|y vou|d have been the strongest
opponents oI ratiIication. They vou|d have recognized hov such an interpretation
and app|ication oI the Necessary and Proper C|ause vou|d eviscerate the bedrock
enumerated povers princip|e upon vhich the Constitution rests.
One oI the amicus curiae brieIs i||ustrates hov using the Necessary and
Proper C|ause in the manner as suggested by the deIendants vou|d vitiate the
enumerated povers princip|e (doc. 119). lt points out that the deIendants´ are
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essentia||y admitting that the Act vi|| have serious negative consequences, e.g.,
encouraging peop|e to Iorego hea|th insurance unti| medica| services are needed,
increasing premiums and costs Ior everyone, and thereby bankrupting the hea|th
insurance industry --- un|ess the individua| mandate is imposed. Thus, rather than
being used to imp|ement or Iaci|itate enIorcement oI the Act´s insurance industry
reIorms, the individua| mandate is actua||y being used as the means to avoid the
adverse consequences oI the Act itse|I. Such an app|ication oI the Necessary and
Proper C|ause vou|d have the perverse eIIect oI enab|ing Congress to pass i||-
conceived, or economica||y disruptive statutes, secure in the knov|edge that the
more dysIunctiona| the resu|ts oI the statute are, the more essentia| or "necessary"
the statutory Iix vou|d be. Under such a rationa|e, the more harm the statute does,
the more pover Congress cou|d assume Ior itse|I under the Necessary and Proper
C|ause. This resu|t vou|d, oI course, expand the Necessary and Proper C|ause Iar
beyond its origina| meaning, and a||ov Congress to exceed the povers speciIica||y
enumerated in Artic|e l. Sure|y this is not vhat the Founders anticipated, nor hov
that C|ause shou|d operate.
U|timate|y, the Necessary and Proper C|ause vests Congress vith the pover
and authority to exercise means vhich may not in and oI themse|ves Ia|| vithin an
enumerated pover, to accomp|ish ends that must be vithin an enumerated pover.
A|though Congress´ authority to act in Iurtherance oI those ends is unquestionab|y
broad, there are neverthe|ess "restraints upon the Necessary and Proper C|ause
authority." See Paich, supra, 545 U.S. at 39 (Sca|ia, J., concurring in judgment).
Thomas JeIIerson varned against an over|y expansive app|ication oI cause and
eIIect in interpreting the interp|ay betveen Congress´ enumerated povers and the
Necessary and Proper C|ause.
Congress are authorized to deIend the nation. Ships are
necessary Ior deIense; copper is necessary Ior ships;
mines necessary Ior copper; a company necessary to
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vork mines; and vho can doubt this reasoning vho has
ever p|ayed at "This is the House that Jack Bui|t?"
Letter Irom Thomas JeIIerson to Edvard Livingston (Apr. 30, 1800), in 31 The
Papers oI Thomas JeIIerson 547 (B. Oberg ed., 2004); accord Comstock, supra,
130 S. Ct. at 1966 (reIerencing same ana|ogy and stating that the Necessary and
Proper C|ause "must be contro||ed by some |imitations |est, as Thomas JeIIerson
varned, congressiona| povers become comp|ete|y unbounded by |inking one pover
to another ad inIinitum") (Kennedy, J., concurring); see a|so id. at 1970 (exp|aining
that the C|ause "does not give Congress carte b|anche," and it is the "ob|igation oI
this Court" to impose |imitations) (A|ito, J., concurring). As Ior vhere the restraints
and |imitations might be, it is --- as is oIten the case --- appropriate to |ook to ChieI
Justice Marsha||, vho Iirst considered this issue and articu|ated the sti||-governing
Let the end be |egitimate, |et it be vithin the scope oI the
constitution, and a|| means vhich are appropriate, vhich
are p|ain|y adapted to that end, vhich are not prohibited,
but consist vith the |etter and spirit oI the constitution,
are constitutiona|.
¯ ¯ ¯
íHovever,] shou|d congress, in the execution oI its
povers, adopt measures vhich are prohibited by the
constitution; or shou|d congress, under the pretext oI
executing its povers, pass |avs Ior the accomp|ishment
oI objects not intrusted to the government; it vou|d
become the painIu| duty oI this tribuna|, shou|d a case
requiring such a decision come beIore it, to say, that
such an act vas not the |av oI the |and.
McCu||och, supra, 17 U.S. at 421, 423.
ln |ight oI United States v. South-Eastern Undervriters, 322 U.S. 533, 64 S.
Ct. 1162, 88 L. Ed. 1440 (1944), the "end" oI regu|ating the hea|th care insurance
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industry (inc|uding preventing insurers Irom exc|uding or charging higher rates to
peop|e vith pre-existing conditions) is c|ear|y "|egitimate" and "vithin the scope oI
the constitution." But, the means used to serve that end must be "appropriate,"
"p|ain|y adapted," and not "prohibited" or inconsistent "vith the |etter and spirit oI
the constitution." These phrases "are not mere|y hortatory." Paich, supra, 545 U.S.
at 39 (Sca|ia, J., concurring in judgment).
The Necessary and Proper C|ause cannot be uti|ized to "pass |avs Ior the
accomp|ishment oI objects" that are not vithin Congress´ enumerated povers. As
the previous ana|ysis oI the deIendants´ Commerce C|ause argument revea|s, the
individua| mandate is neither vithin the |etter nor the spirit oI the Constitution. To
upho|d that provision via app|ication oI the Necessary and Proper C|ause vou|d
authorize Congress to reach and regu|ate Iar beyond the current|y estab|ished
"outer |imits" oI the Commerce C|ause and eIIective|y remove a|| |imits on Iedera|
pover. As the Supreme Court exp|ained in Printz.
When a "Lav . . . Ior carrying into Execution" the
Commerce C|ause ívio|ates other Constitutiona|
princip|es], it is not a "Lav . . . proper Ior carrying into
Execution the Commerce C|ause," and is thus, in the
vords oI the Federa|ist, "mere|y an act oI usurpation"
vhich "deserves to be treated as such."
Printz, supra, 521 U.S. at 923-24 (citations and brackets omitted) (emphasis in
origina|); see a|so Comstock, supra, 130 S. Ct. at 1967-68 ("lt is oI Iundamenta|
importance to consider vhether essentia| attributes íoI Iedera|ism embodied in the
Constitution] are compromised by the assertion oI Iedera| pover under the
Necessary and Proper C|ause; iI so, that is a Iactor suggesting that the pover is
not one proper|y vithin the reach oI Iedera| pover.") (Kennedy, J., concurring).
Here, the "essentia| attributes" oI the Commerce C|ause |imitations on the Iedera|
government´s pover vou|d deIinite|y be compromised by this assertion oI Iedera|
pover via the Necessary and Proper C|ause. lI Congress is a||oved to deIine the
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scope oI its pover mere|y by arguing that a provision is "necessary" to avoid the
negative consequences that vi|| potentia||y I|ov Irom its ovn statutory
enactments, the Necessary and Proper C|ause runs the risk oI ceasing to be the
"perIect|y harm|ess" part oI the Constitution that Hami|ton assured us it vas, and
moves that much c|oser to becoming the "hideous monster ívith] devouring javs"
that he assured us it vas not.
The deIendants have asserted again and again that the individua| mandate is
abso|ute|y "necessary" and "essentia|" Ior the Act to operate as it vas intended by
Congress. l accept that it is.
Neverthe|ess, the individua| mandate Ia||s outside the
boundary oI Congress´ Commerce C|ause authority and cannot be reconci|ed vith a
|imited government oI enumerated povers. By deIinition, it cannot be "proper."
The individua| mandate is outside Congress´ Commerce C|ause pover, and it
cannot be othervise authorized by an assertion oI pover under the Necessary and
Proper C|ause. lt is not Constitutiona|. According|y, summary judgment must be
granted in Iavor oI the p|aintiIIs on Count l.
Having determined that the individua| mandate exceeds Congress´ pover
under the Commerce C|ause, and cannot be saved by app|ication oI the Necessary
and Proper C|ause, the next question is vhether it is severab|e Irom the remainder
oI the Act. ln considering this issue, l note that the deIendants have acknov|edged
that the individua| mandate and the Act´s hea|th insurance reIorms, inc|uding the
guaranteed issue and community rating, vi|| rise or Ia|| together as these reIorms
"cannot be severed Irom the íindividua| mandate]." See, e.g., DeI. Opp. at 40. As
exp|ained in my order on the motion to dismiss. "the deIendants concede that íthe
As vi|| be seen, the deIendants´ repeated assertions on this point impact
the severabi|ity ana|ysis.
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individua| mandate] is abso|ute|y necessary Ior the Act´s insurance market reIorms
to vork as intended. ln Iact, they reIer to it as an ´essentia|´ part oI the Act at
|east Iourteen times in their motion to dismiss." Thus, the on|y question is vhether
the Act´s other, non-hea|th-insurance-re|ated provisions can stand independent|y or
vhether they, too, must Ia|| vith the individua| mandate.
Severabi|ity is a doctrine oI judicia| restraint, and the Supreme Court has
app|ied and reaIIirmed that doctrine just this past year. "´Cenera||y speaking, vhen
conIronting a constitutiona| I|av in a statute, ícourts] try to |imit the so|ution to the
prob|em,´ severing any ´prob|ematic portions vhi|e |eaving the remainder intact.´"
Free Enterprise Fund v. Pub|ic Co. Accounting Oversight Board, --- U.S. ---, 130 S.
Ct. 3138, 3161, 177 L. Ed. 2d 706 (2010) (citation omitted) (emphasis added).
Because the unconstitutiona|ity oI one provision oI a |egis|ative scheme "does not
necessari|y deIeat or aIIect the va|idity oI its remaining provisions," the "norma|
ru|e" is that partia| inva|idation is proper. ld. (citations omitted) (emphasis added).
Where Congress has "enacted a statutory scheme Ior an obvious purpose, and
vhere Congress has inc|uded a series oI provisions operating as incentives to
achieve that purpose, the inva|idation oI one oI the incentives shou|d not ordinari|y
cause Congress´ overa|| intent to be Irustrated." Nev York, supra, 505 U.S. at 186
(emphasis added). As the emphasized text shovs, the Ioregoing is not a rigid and
inI|exib|e ru|e, but rather it is the genera| standard that app|ies in the typica| case.
Hovever, this is anything but the typica| case.
The question oI severabi|ity u|timate|y turns on the nature oI the statute at
issue. For examp|e, iI Congress intended a given statute to be vieved as a bund|e
oI separate |egis|ative enactment or a series oI short |avs, vhich Ior purposes oI
ln considering this issue, l vi|| at times borrov heavi|y Irom one oI the
amicus brieIs Ii|ed in the case Ior it quite cogent|y and eIIective|y sets Iorth the
app|icab|e standard and governing ana|ysis oI severabi|ity (doc. 123).
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convenience and eIIiciency vere arranged together in a sing|e |egis|ative scheme, it
is presumed that any provision dec|ared unconstitutiona| can be struck and severed
vithout aIIecting the remainder oI the statute. lI, hovever, the statute is vieved
as a careIu||y-ba|anced and c|ockvork-|ike statutory arrangement comprised oI
pieces that a|| vork tovard one primary |egis|ative goa|, and iI that goa| vou|d be
undermined iI a centra| part oI the |egis|ation is Iound to be unconstitutiona|, then
severabi|ity is not appropriate. As vi|| be seen, the Iacts oI this case |ean heavi|y
tovard a Iinding that the Act is proper|y vieved as the |atter, and not the Iormer.
The standard Ior determining vhether an unconstitutiona| statutory provision
can be severed Irom the remainder oI the statute is ve||-estab|ished, and it consists
oI a tvo-part test. First, aIter Iinding the cha||enged provision unconstitutiona|, the
court must determine iI the other provisions can Iunction independent|y and remain
"Iu||y operative as a |av." See Free Enterprise Fund, supra, 130 S. Ct. at 3161. ln
a statute that is approximate|y 2,700 pages |ong and has severa| hundred sections
--- certain oI vhich have on|y a remote and tangentia| connection to hea|th care ---
it stands to reason that some (perhaps even most) oI the remaining provisions can
stand a|one and Iunction independent|y oI the individua| mandate. The deIendants
have identiIied severa| provisions that they be|ieve can Iunction independent|y. the
prohibition on discrimination against providers vho vi|| not Iurnish assisted suicide
services; an "lndependence at Home" project Ior chronica||y i|| seniors; a specia|
Medicare enro||ment period Ior disab|ed veterans; Medicare reimbursement Ior
bone-marrov density tests; and provisions devised to improve vomen´s hea|th,
prevent abuse, and ame|iorate dementia íDeI. Opp. at 40], as ve|| as abstinence
education and disease prevention ídoc. 74 at 14]. And as vas mentioned during
ora| argument, there is |itt|e doubt that the provision in the Act requiring emp|oyers
to provide a "reasonab|e break time" and separate room Ior nursing mothers to go
and express breast mi|k íAct s 4207] can Iunction vithout the individua| mandate.
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lmportant|y, this provision and many others are a|ready in eIIect and Iunctioning.
Hovever, the question is not vhether these and the myriad other provisions can
Iunction as a technica| or practica| matter; instead, the "more re|evant inquiry" is
vhether these provisions vi|| comprise a statute that vi|| Iunction "in a manner
consistent vith the intent oI Congress." See A|aska Air|ines, lnc. v. Brock, 480
U.S. 678, 685, 107 S. Ct. 1476, 94 L. Ed. 2d 661 (1987) (emphasis in origina|).
Thus, the Iirst step in the severabi|ity ana|ysis requires (at |east to some extent)
that l try to inIer Congress´ intent. A|though many oI the remaining provisions, as
just noted, can most |ike|y Iunction independent|y oI the individua| mandate, there
is nothing to indicate that they can do so in the manner intended by Congress. The
ana|ysis at the second step oI the severabi|ity test makes that conc|usion pretty
At this second step, revieving courts may |ook to "the statute´s text or
historica| context" to determine iI Congress, had it been presented vith a statute
that did not contain the struck part, vou|d have preIerred to have no statute at a||.
See Free Enterprise Fund, supra, 130 S. Ct. at 3161-62. "Un|ess it is evident that
the Legis|ature vou|d not have enacted those provisions vhich are vithin its
pover, independent|y oI that vhich is not, the inva|id part may be dropped iI vhat
is |eIt is Iu||y operative as a |av." See A|aska Air|ines, lnc., supra, 480 U.S. at 684.
But once again, that presupposes that the provisions |eIt over Iunction in a manner
consistent vith the main objective and purpose oI the statute in the Iirst p|ace. CI.
Nev York, supra, 505 U.S. at 187 (unconstitutiona| provision he|d to be severab|e
vhere the remaining statute "sti|| serves Congress´ objective" and the "purpose oI
the Act is not deIeated by the inva|idation" oI the unconstitutiona| provision)
(emphasis added). Whi|e this inquiry "can sometimes be ´e|usive´" íFree Enterprise
Fund, supra, 130 S. Ct. at 3161], on the unique Iacts oI this particu|ar case, the
record seems to strong|y indicate that Congress vou|d not have passed the Act in
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its present Iorm iI it had not inc|uded the individua| mandate. This is because the
individua| mandate vas indisputab|y essentia| to vhat Congress vas u|timate|y
seeking to accomp|ish. lt vas, in Iact, the keystone or |ynchpin oI the entire hea|th
reIorm eIIort. AIter |ooking at the "statute´s text" (or, rather, its conspicuous |ack
oI text) and the "historica| record" ísee Free Enterprise Fund, supra, 130 S. Ct. at
3162], there are tvo speciIic Iacts that are particu|ar|y te||ing in this respect.
First, the Act does not contain a "severabi|ity c|ause," vhich is common|y
inc|uded in |egis|ation to provide that iI any part or provision is he|d inva|id, then
the rest oI the statute vi|| not be aIIected. A|though it is true that the absence oI
such a c|ause, in and oI itse|I, "does not raise a presumption against severabi|ity,"
íNev York, supra, 505 U.S. at 186], that is not the same thing as saying that its
absence is irre|evant to the ana|ysis. ln lNS v. Chadha, 462 U.S. 919, 103 S. Ct.
2764, 77 L. Ed. 2d 317 (1983), Ior examp|e, the Supreme Court conc|uded that it
did not have to embark on the "e|usive inquiry" oI vhether Congress intended the
unconstitutiona| provision in that case to be severab|e Irom the rest oI the statute
because Congress inc|uded a severabi|ity c|ause vith |anguage that vas p|ain and
unambiguous. See id. at 931-32. And, in A|aska Air|ines, lnc., supra, 480 U.S. at
686, the Court simi|ar|y he|d that the severabi|ity ana|ysis is "eased" vhen there is
a severabi|ity c|ause in the statute, such that on|y "strong evidence" can overcome
it. By necessary imp|ication, the evidence against severabi|ity need not be as strong
to overcome the genera| presumption vhen there is no such c|ause.
The |ack oI a severabi|ity c|ause in this case is signiIicant because one had
been inc|uded in an ear|ier version oI the Act, but it vas removed in the bi|| that
subsequent|y became |av. "Where Congress inc|udes íparticu|ar] |anguage in an
ear|ier version oI a bi|| but de|etes it prior to enactment, it may be presumed that
the íomitted provision] vas not intended." Pusse||o v. United States, 464 U.S. 16,
23-24, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983). ln other vords, the severabi|ity
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c|ause vas intentiona||y |eIt out oI the Act. The absence oI a severabi|ity c|ause is
Iurther signiIicant because the individua| mandate vas controversia| a|| during the
progress oI the |egis|ation and Congress vas undoubted|y ve|| avare that |ega|
cha||enges vere coming. lndeed, as noted ear|ier, even beIore the Act became |av,
severa| states had passed statutes dec|aring the individua| mandate unconstitutiona|
and purporting to exempt their residents Irom it; and Congress´ ovn attorneys in
the CPS had basica||y advised that the cha||enges might ve|| have |ega| merit as it
vas "unc|ear" iI the individua| mandate had "so|id constitutiona| Ioundation." See
CPS Ana|ysis, supra, at 3. ln |ight oI the Ioregoing, Congress´ Iai|ure to inc|ude a
severabi|ity c|ause in the Act (or, more accurate|y, its decision to not inc|ude one
that had been inc|uded ear|ier) can be vieved as strong evidence that Congress
recognized the Act cou|d not operate as intended vithout the individua| mandate.
Moreover, the deIendants have conceded that the Act´s hea|th insurance
reIorms cannot survive vithout the individua| mandate, vhich is extreme|y
signiIicant because the various insurance provisions, in turn, are the very heart oI
the Act itse|I. The hea|th insurance reIorm provisions vere cited repeated|y during
the hea|th care debate, and they vere instrumenta| in passing the Act. ln speech
aIter speech President Obama emphasized that the |egis|ative goa| vas "hea|th
insurance reIorm" and stressed hov important it vas that Congress Iundamenta||y
reIorm hov hea|th insurance companies do business, and "protect every American
Irom the vorst practices oI the insurance industry." See, Ior examp|e, Pemarks oI
President Obama, The State oI the Union, de|ivered Jan. 27, 2009.
See a|so, e.g., The White House, OIIice oI the Press Secretary, OIIicia|
Transcript oI President Obama´s Nevs ConIerence, Ju|y 22, 2009, avai|ab|e at.
09; The White House, OIIice oI the Press Secretary, OIIicia| Transcript oI President
Obama´s Pemarks at Hea|th Care PeIorm Tovn Ha||, Ju|y 23, 2009, avai|ab|e at.
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 68 of 78
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the Act´s supporters in the Senate and House simi|ar|y spoke repeated|y and oIten
oI the |egis|ative eIIorts as being the means to comprehensive|y reIorm the hea|th
insurance industry.
To be sure, the vords "protection" and "aIIordab|e" in the tit|e oI the Act
itse|I are inextricab|y tied to the hea|th insurance reIorm provisions (and the
individua| mandate in particu|ar), as the deIendants have emphasized throughout
the course oI this |itigation. See, e.g., DeI. Mem. at 1 ("Focusing on insurance
industry practices that prevented mi||ions oI Americans Irom obtaining aIIordab|e
insurance, the Act bars insurers Irom denying coverage to those vith pre-existing
conditions or Irom charging discriminatory premiums on the basis oI medica|
history. Congress recognized that these reIorms oI insurance industry practices
vere required to protect consumers . . . ") (emphasis added); Pep|y in Support oI
DeIendants´ Motion to Dismiss, Ii|ed August 27, 2010 (doc. 74), at 21 (stating
that the individua| mandate "is necessary Ior Congress´s insurance reIorms to
vork"; that "those provisions protect mi||ions oI Americans"; and that "Congress
p|ain|y regarded their protection as a core objective oI the Act") (emphasis added).
The deIendants have Iurther identiIied and high|ighted the essentia| ro|e that the
individua| mandate p|ayed in the overa|| regu|atory reIorm oI the interstate hea|th
care and hea|th insurance markets.
íT]he íindividua| mandate] is essentia| to the Act´s
See, e.g., David We|na, Ana|yzing Democrats´ Word ShiIt on Hea|th Care,
Nationa| Pub|ic Padio, Nov. 17, 2009 (reporting that during the hea|th care reIorm
debate the Act´s proponents reIerred to the ongoing eIIorts as "hea|th insurance
reIorm," vhich, according to the head oI a nonpartisan hea|th care organization, "is
a much more accurate |abe|" as the "hea|th care makeover has ended up being
|arge|y about íreIorming] insurance companies"), avai|ab|e at
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comprehensive scheme to ensure that hea|th insurance
coverage is avai|ab|e and aIIordab|e. ln addition to
regu|ating industry undervriting practices, the Act
promotes avai|abi|ity and aIIordabi|ity through (a) "hea|th
beneIit exchanges" that enab|e individua|s and sma||
businesses to obtain competitive prices Ior hea|th
insurance; (b) Iinancia| incentives Ior emp|oyers to oIIer
expanded insurance coverage, (c) tax credits to |ov-
income and midd|e-income individua|s and Iami|ies, and
(d) extension oI Medicaid to additiona| |ov-income
individua|s. The íindividua| mandate] vorks in tandem
vith these and other reIorms. . . .
Congress thus Iound that Iai|ure to regu|ate the decision
to Iorgo insurance . . . vou|d undermine the
"comprehensive regu|atory regime" in the Act. . . .
íThe individua| mandate] is essentia| to Congress´s overa||
regu|atory reIorm oI the interstate hea|th care and hea|th
insurance markets . . . is "essentia|" to achieving key
reIorms oI the interstate hea|th insurance market . . .
íand is] necessary to make the other regu|ations in the
Act eIIective.
Memorandum in Support oI DeIendants´ Motion to Dismiss, Ii|ed June 17, 2010
(doc. 56-1), at 46-48 (emphasis added).
Congress has a|so acknov|edged in the Act itse|I that the individua| mandate
is abso|ute|y "essentia|" to the Act´s overarching goa| oI expanding the avai|abi|ity
oI aIIordab|e hea|th insurance coverage and protecting individua|s vith pre-existing
medica| conditions.
íl]I there vere no íindividua| mandate], many individua|s
vou|d vait to purchase hea|th insurance unti| they
needed care . . . The íindividua| mandate] is essentia| to
creating eIIective hea|th insurance markets in vhich
improved hea|th insurance products that are guaranteed
issue and do not exc|ude coverage oI pre-existing
conditions can be so|d.
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Act s 1501(a)(2)(l) (emphasis added).
ln other vords, the individua| mandate is indisputab|y necessary to the Act´s
insurance market reIorms, vhich are, in turn, indisputab|y necessary to the purpose
oI the Act. This is obvious|y a very diIIerent situation than in A|aska Air|ines, lnc.,
supra, 480 U.S. at 694 n.18 and 696 (unconstitutiona| provision severed Irom rest
oI statute vhere the provision vas "uncontroversia|," and the debate on the Iina|
bi|| demonstrated its "re|ative unimportance"), and is more in |ine vith the situation
a||uded to in Nev York, supra, 505 U.S. at 187 (suggesting by imp|ication that the
entire |egis|ation shou|d be struck vhen "the purpose oI the Act is . . . deIeated by
the inva|idation" oI one oI its provisions).
ln veighing the Act´s provisions and attempting to discern |egis|ative intent
and purpose, l have kept in mind the rationa|e under|ying the severabi|ity doctrine,
vhich the Supreme Court has described as Io||ovs.
Three interre|ated princip|es inIorm our approach to
remedies. First, ve try not to nu||iIy more oI a
|egis|ature's vork than is necessary, Ior ve knov that a
ru|ing oI unconstitutiona|ity Irustrates the intent oI the
e|ected representatives oI the peop|e. . . . Second,
mindIu| that our constitutiona| mandate and institutiona|
competence are |imited, ve restrain ourse|ves Irom
revriting ía] |av to conIorm it to constitutiona|
requirements even as ve strive to sa|vage it . . . Third,
the touchstone Ior any decision about remedy is
|egis|ative intent, Ior a court cannot use its remedia|
povers to circumvent the intent oI the |egis|ature.
Ayotte v. P|anned Parenthood oI Northern Nev Eng|and, 546 U.S. 321, 329-30,
126 S. Ct. 961, 163 L. Ed. 2d 812 (2006) (citations and brackets omitted). The
Iirst princip|e mere|y reI|ects the genera| judicia| po|icy discussed at the beginning
oI this section; that is, because a ru|ing oI unconstitutiona|ity Irustrates the intent
oI democratica||y-e|ected representatives oI the peop|e, the "norma| ru|e" --- in the
"norma|" case --- vi|| ordinari|y require that as |itt|e oI a statute be struck dovn as
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possib|e. The tvo other princip|es, hovever, require c|oser ana|ysis.
As Ior the second princip|e, the Ayotte Court exp|ained.
Our abi|ity to devise a judicia| remedy that does not entai|
quintessentia||y |egis|ative vork oIten depends on hov
c|ear|y ve have a|ready articu|ated the background
constitutiona| ru|es at issue . . . But making distinctions in
a murky constitutiona| context, or vhere |ine-draving is
inherent|y comp|ex, may ca|| Ior a "Iar more serious
invasion oI the |egis|ative domain" than ve ought to
Supra, 546 U.S. at 329-30. Thus, c|ean|y and c|ear|y severing an unconstitutiona|
provision is one thing, but having to re-ba|ance a statutory scheme by engaging in
quasi-|egis|ative "|ine draving" is a "´Iar more serious invasion oI the |egis|ative
domain´" than courts shou|d undertake. See id. This ana|ysis merges into the third
princip|e identiIied in Ayotte.
AIter Iinding an app|ication or portion oI a statute
unconstitutiona|, ve must next ask. Wou|d the |egis|ature
have preIerred vhat is |eIt oI its statute to no statute at
a||? A|| the vhi|e, ve are vary oI |egis|atures vho vou|d
re|y on our intervention, Ior it vou|d certain|y be
dangerous iI the |egis|ature cou|d set a net |arge enough
to catch a|| possib|e oIIenders, and |eave it to the courts
to step inside to announce to vhom the statute may be
app|ied. This vou|d, to some extent, substitute the
judicia| Ior the |egis|ative department oI the government.
ld. at 330 (citations and brackets omitted).
Severing the individua| mandate Irom the Act a|ong vith the other insurance
reIorm provisions --- and in the process reconIiguring an exceeding|y |engthy and
comprehensive |egis|ative scheme --- cannot be done consistent vith the princip|es
set out above. Coing through the 2,700-page Act |ine-by-|ine, inva|idating dozens
(or hundreds) oI some sections vhi|e retaining dozens (or hundreds) oI others,
vou|d not on|y take considerab|e time and extensive brieIing, but it vou|d, in the
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end, be tantamount to revriting a statute in an attempt to sa|vage it, vhich is
Iorec|osed by Ayotte, supra. Courts shou|d not even attempt to do that. lt vou|d
be impossib|e to ascertain on a section-by-section basis iI a particu|ar statutory
provision cou|d stand (and vas intended by Congress to stand) independent|y oI
the individua| mandate. The interoperative eIIects oI a partia| de|etion oI |egis|ative
provisions are oIten unIorseen and unpredictab|e. For me to try and "second guess"
vhat Congress vou|d vant to keep is a|most impossib|e. To high|ight one oI many
examp|es, consider the lnterna| Pevenue Service Form 1099 reporting requirement,
vhich requires that businesses, inc|uding so|e proprietorships, issue 1099 tax
Iorms to individua|s or corporations to vhom or vhich they have paid more than
$600 Ior goods or services in any given tax year íAct s 9006]. This provision has
no discernab|e connection to hea|th care and vas intended to generate oIIsetting
revenue Ior the Act, the need oI vhich is great|y diminished in the absence oI the
"hea|th beneIit exchanges," subsidies and tax credits, and Medicaid expansion (a||
oI vhich, as the deIendants have conceded, "vork in tandem" vith the individua|
mandate and other insurance reIorm provisions). Hov cou|d l possib|y determine iI
Congress intended the 1099 reporting provision to stand independent|y oI the
insurance reIorm provisions? Shou|d the Iact that it has been vide|y criticized by
both Congressiona| supporters and opponents oI the Act and the Iact that there
have been bipartisan eIIorts to repea| it Iactor at a|| into my determination?
ln the Iina| ana|ysis, this Act has been ana|ogized to a Iine|y craIted vatch,
and that seems to Iit. lt has approximate|y 450 separate pieces, but one essentia|
piece (the individua| mandate) is deIective and must be removed. lt cannot Iunction
as origina||y designed. There are simp|y too many moving parts in the Act and too
many provisions dependent (direct|y and indirect|y) on the individua| mandate and
other hea|th insurance provisions --- vhich, as noted, vere the chieI engines that
drove the entire |egis|ative eIIort --- Ior me to try and dissect out the proper Irom
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the improper, and the ab|e-to-stand-a|one Irom the unab|e-to-stand-a|one. Such a
quasi-|egis|ative undertaking vou|d be particu|ar|y inappropriate in |ight oI the Iact
that any statute that might conceivab|y be |eIt over aIter this ana|ysis is comp|ete
vou|d p|ain|y not serve Congress´ main purpose and primary objective in passing
the Act. The statute is, aIter a||, ca||ed "The Patient Protection and AIIordab|e Care
Act," not "The Abstinence Education and Bone Marrov Density Testing Act." The
Act, |ike a deIective|y designed vatch, needs to be redesigned and reconstructed
by the vatchmaker.
lI Congress intends to imp|ement hea|th care reIorm --- and there vou|d
appear to be videspread agreement across the po|itica| spectrum that reIorm is
needed --- it shou|d do a comprehensive examination oI the Act and make a
|egis|ative determination as to vhich oI its hundreds oI provisions and sections vi||
vork as intended vithout the individua| mandate, and vhich vi|| not. lt is Congress
that shou|d consider and decide these quintessentia||y |egis|ative questions, and not
the courts.
ln sum, notvithstanding the Iact that many oI the provisions in the Act can
stand independent|y vithout the individua| mandate (as a technica| and practica|
matter), it is reasonab|y "evident," as l have discussed above, that the individua|
mandate vas an essentia| and indispensab|e part oI the hea|th reIorm eIIorts, and
that Congress did not be|ieve other parts oI the Act cou|d (or it vou|d vant them
to) survive independent|y. l must conc|ude that the individua| mandate and the
remaining provisions are a|| inextricab|y bound together in purpose and must stand
or Ia|| as a sing|e unit. The individua| mandate cannot be severed. This conc|usion
is reached vith Iu|| appreciation Ior the "norma| ru|e" that revieving courts shou|d
ordinari|y reIrain Irom inva|idating more than the unconstitutiona| part oI a statute,
but non-severabi|ity is required based on the unique Iacts oI this case and the
particu|ar aspects oI the Act. This is not a situation that is |ike|y to be repeated.
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The |ast issue to be reso|ved is the p|aintiIIs´ request Ior injunctive re|ieI
enjoining imp|ementation oI the Act, vhich can be disposed oI very quick|y.
lnjunctive re|ieI is an "extraordinary" íWeinberger v. Pomero-Barce|o, 456
U.S. 305, 312, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982)], and "drastic" remedy
íAaron v. S.E.C., 446 U.S. 680, 703, 100 S. Ct. 1945, 64 L. Ed. 2d 611 (1980)
(Burger, J., concurring)]. lt is even more so vhen the party to be enjoined is the
Iedera| government, Ior there is a |ong-standing presumption "that oIIicia|s oI the
Executive Branch vi|| adhere to the |av as dec|ared by the court. As a resu|t, the
dec|aratory judgment is the Iunctiona| equiva|ent oI an injunction." See Comm. on
Judiciary oI U.S. House oI Pepresentatives v. Miers, 542 F.3d 909, 911 (D.C. Cir.
2008); accord Sanchez-Espinoza v. Peagan, 770 F.2d 202, 208 n.8 (D.C. Cir.
1985) ("dec|aratory judgment is, in a context such as this vhere Iedera| oIIicers
are deIendants, the practica| equiva|ent oI speciIic re|ieI such as an injunction . . .
since it must be presumed that Iedera| oIIicers vi|| adhere to the |av as dec|ared
by the court") (Sca|ia, J.) (emphasis added).
There is no reason to conc|ude that this presumption shou|d not app|y here.
Thus, the avard oI dec|aratory re|ieI is adequate and separate injunctive re|ieI is
not necessary.
The existing prob|ems in our nationa| hea|th care system are recognized by
everyone in this case. There is videspread sentiment Ior positive improvements
that vi|| reduce costs, improve the qua|ity oI care, and expand avai|abi|ity in a vay
that the nation can aIIord. This is obvious|y a very diIIicu|t task. Pegard|ess oI hov
|audab|e its attempts may have been to accomp|ish these goa|s in passing the Act,
Congress must operate vithin the bounds estab|ished by the Constitution. Again,
this case is not about vhether the Act is vise or unvise |egis|ation. lt is about the
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Constitutiona| ro|e oI the Iedera| government.
For the reasons stated, l must re|uctant|y conc|ude that Congress exceeded
the bounds oI its authority in passing the Act vith the individua| mandate. That is
not to say, oI course, that Congress is vithout pover to address the prob|ems and
inequities in our hea|th care system. The hea|th care market is more than one sixth
oI the nationa| economy, and vithout doubt Congress has the pover to reIorm and
regu|ate this market. That has not been disputed in this case. The principa| dispute
has been about hov Congress chose to exercise that pover here.
Because the individua| mandate is unconstitutiona| and not severab|e, the
entire Act must be dec|ared void. This has been a diIIicu|t decision to reach, and l
am avare that it vi|| have indeterminab|e imp|ications. At a time vhen there is
virtua||y unanimous agreement that hea|th care reIorm is needed in this country, it
is hard to inva|idate and strike dovn a statute tit|ed "The Patient Protection and
AIIordab|e Care Act." As Judge Luttig vrote Ior an en banc Fourth Circuit in
On this point, it shou|d be emphasized that vhi|e the individua| mandate
vas c|ear|y "necessary and essentia|" to the Act as draIted, it is not "necessary
and essentia|" to hea|th care reIorm in genera|. lt is undisputed that there are
various other (Constitutiona|) vays to accomp|ish vhat Congress vanted to do.
lndeed, l note that in 2008, then-Senator Obama supported a hea|th care reIorm
proposa| that did not inc|ude an individua| mandate because he vas at that time
strong|y opposed to the idea, stating that "iI a mandate vas the so|ution, ve can
try that to so|ve home|essness by mandating everybody to buy a house." See
lnterviev on CNN´s American Morning, Feb. 5, 2008, transcript avai|ab|e at.
http.//|tm.02.htm|. ln Iact, he pointed
to the simi|ar individua| mandate in Massachusetts --- vhich vas imposed under the
state´s po|ice pover, a pover the Iedera| government does not have --- and opined
that the mandate there |eIt some residents "vorse oII" than they had been beIore.
See Christopher Lee, Simp|e Cuestion DeIines Comp|ex Hea|th Debate, Washington
Post, Feb. 24, 2008, at A10 (quoting Senator Obama as saying. "ln some cases,
there are peop|e íin Massachusetts] vho are paying Iines and sti|| can't aIIord
íhea|th insurance], so nov they're vorse oII than they vere . . . They don't have
hea|th insurance, and they're paying a Iine . . .").
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striking dovn the "Vio|ence Against Women Act" (beIore the case vas appea|ed
and the Supreme Court did the same).
No |ess Ior judges than Ior po|iticians is the temptation to
aIIirm any statute so decorous|y tit|ed. We |ive in a time
vhen the |ines betveen |av and po|itics have been
purposeIu||y b|urred to serve the ends oI the |atter. And,
vhen ve, as courts, have not participated in this most
pernicious|y machiave||ian oI enterprises ourse|ves, ve
have acquiesced in it by others, a||oving opinions oI |av
to be dismissed as but pronouncements oI persona|
agreement or disagreement. The judicia| decision making
contemp|ated by the Constitution, hovever, un|ike at
|east the po|itics oI the moment, emphatica||y is not a
Iunction oI |abe|s. lI it vere, the Supreme Court assured|y
vou|d not have struck dovn the "Cun-Free Schoo| Zones
Act," the "Pe|igious Freedom Pestoration Act," the "Civi|
Pights Act oI 1871," or the "Civi| Pights Act oI 1875."
And iI it ever becomes such, ve vi|| have ceased to be a
society oI |av, and a|| the codiIication oI Ireedom in the
vor|d vi|| be to |itt|e avai|.
Brzonka|a, supra, 169 F.3d at 889.
ln c|osing, l vi|| simp|y observe, once again, that my conc|usion in this case
is based on an app|ication oI the Commerce C|ause |av as it exists pursuant to the
Supreme Court´s current interpretation and deIinition. On|y the Supreme Court (or a
Constitutiona| amendment) can expand that.
For a|| the reasons stated above and pursuant to Pu|e 56 oI the Federa| Pu|es
oI Civi| Procedure, the p|aintiIIs´ motion Ior summary judgment (doc. 80) is hereby
CPANTED as to its request Ior dec|aratory re|ieI on Count l oI the Second
Amended Comp|aint, and DENlED as to its request Ior injunctive re|ieI; and the
deIendants´ motion Ior summary judgment (doc. 82) is hereby CPANTED on Count
lV oI the Second Amended Comp|aint. The respective cross-motions are each
ln accordance vith Pu|e 57 oI the Federa| Pu|es oI Civi| Procedure and Tit|e
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28, United States Code, Section 2201(a), a Dec|aratory Judgment sha|| be entered
separate|y, dec|aring "The Patient Protection and AIIordab|e Care Act"
DONE and OPDEPED this 31
day oI January, 2011.
/s/ !"#$%&'()*")
Senior United States District Judge
Case 3:10-cv-00091-RV -EMT Document 150 Filed 01/31/11 Page 78 of 78

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