Thomas More Law Center v. Obama

Randy Barnett, filed a brief supporting that appeal. We argue that the outermost bounds of existing Commerce Clause jurisprudence — the "substantial effects doctrine" — prevent Congress from reaching intrastate non-economic activity regardless of whether it substantially affects interstate commerce. Nor under existing law can Congress reach inactivity even if it purports to act pursuant to a broader regulatory scheme. Even the district court recognized that "in every Commerce Clause case presented thus far, there has been some sort of activity. In this regard, the Health Care Reform Act arguably presents an issue of first impression." What Congress is attempting to do here is quite literally unprecedented. "The government has never required people to buy any good or service as a condition of lawful residence in the United States." Cong. Budget Office, The Budgetary Treatment of an Individual Mandate to Buy Health Insurance 1 (1994). Nor has it ever said that people face civil penalties for declining to participate in the marketplace.