U.S. Supreme Court door

This past week brought us the best night in baseball history.  But if, like me, you’re a sucker for the latest developments in the constitutional challenge mounted against the federal health reform law, this past week brought plenty of excitement on that front, as well.

On Monday night, we learned that the federal government decided not to seek rehearing en banc of the U.S. Court of Appeals for the Eleventh Circuit’s opinion declaring the individual mandate unconstitutional.  Many experts had assumed that the Department of Justice (DOJ) would seek to delay Supreme Court review for as long as possible by asking for review by the entire Eleventh Circuit panel.   But in the end, that didn’t happen.  Everyone has an opinion on how and why the administration made that decision.  For what it’s worth, I tend to agree with Tom Goldstein that the institutional demand for certainty outweighed other considerations in the end.  Practically speaking, the government and its agencies need to know as soon as possible whether the law will survive a constitutional challenge in order to begin the lengthy and burdensome process of implementing it.

On Wednesday morning, the National Federation of Independent Business (NFIB) was first out of the gate to file a Petition for Certiorari in State of Florida v. US Dep’t of Health and Human Servs., thus ensuring with the lowest case number that the case will be forever known to future law students as NFIB v. Sebelius.  NFIB’s Petition, authored by Mike Carvin, primarily argued in favor of cert on the grounds that the health care reform law must be invalidated in its entirety because it is non-severable from the individual mandate.

Just before noon on Wednesday, the twenty-six States who were also plaintiffs in the case filed their Petition for Certiorari, which was authored by Paul Clement and Randy Barnett.  The States’ Petition does an excellent job of asking the Court to vindicate the important federalism concerns imbedded in the Constitution, but is also noteworthy for asking the Court to revisit Garcia v. San Antonio Metropolitan Transit Authority, which would suggest that the States were entitled to no greater deference than ordinary employers when Congress imposes invasive mandates as to the manner in which States provide their own employees with insurance coverage.

By late afternoon Wednesday, the DOJ finally joined in the fun and filed its own Petition for Certiorari in the case.  Unsurprisingly, the government urged the Court to grant discretionary review in order to correct the Eleventh Circuit’s “fundamentally flawed” opinion, which the DOJ claims denied Congress “the broad deference it is due in enacting laws to address the Nation’s most pressing economic problems and set tax policy.”

The DOJ made news again later that evening in filing its response to the Petition for Certiorari in Thomas More Law Center v. Obama.  The urged the Court to hold the petition in the Sixth Circuit pending the Court’s resolution of the government’s petition in the Eleventh.  Of course, this move was not entirely unexpected given the DOJ’s earlier filing of its cert petition that day.

So the stage is finally now set for the Supreme Court to decide the fate of the legitimate boundary of Congress’s power under the Commerce Clause.

As I have said before, even the broadest Supreme Court precedents do not give Congress the authority to compel Americans to purchase a product they do not want.  However elastic Congress’s power may be under the Commerce Clause, it is not unlimited.  In construing this power thus far, the Supreme Court has limited it to the regulation of individuals already engaged in “commerce.”  In other words, the Commerce Clause permits Congress to “regulate” commerce, not to command it, and not to create it from whole cloth where none exists.  It empowers Congress to regulate economic “actors,” not those who have never entered the relevant marketplace and who merely wish to be left alone.