As we have been reporting on this blog, the Sixth Circuit is preparing to address the constitutionality of the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148See Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388).  The Sixth Circuit’s decision on the constitutionality of the individual mandate may be the first to reach the Supreme Court, and thus court observers are watching this case closely.

Last month, as we reported, the plaintiffs filed their opening brief (PDF) arguing that the individual mandate under the new health care law violates the Commerce Clause because it regulates mere existence based on “inactivity,” and not commercial or economic “activity.”  On Friday, the defendants filed their appellee brief (PDF) in defense of the health care statute.  The defendants argue that the plaintiffs’ rhetoric regarding Congress’s lack of authority to impose the individual mandate is way overblown and wholly inconsistent with the modern view of the Commerce Clause set forth by the U.S. Supreme Court.  As the defendants contend, the individual mandate, or minimum coverage provision, “is a quintessential exercise of Congress’s power to regulate interstate commerce” because it further several economic goals, including preventing “substantial cost-shifting in the interstate health care market resulting from the practice of consuming health care without insurance.”  The defendants argue that while the plaintiffs’ assertions about unprecedented governmental mandates restricting their personal and economic freedoms “might have been relevant to the type of substantive due process claim entertained in the Lochner era” (an era during which an activist conservative Supreme Court struck down numerous laws that infringed on economic liberties), “they have no bearing on the scope of Congress’s commerce power.”  The defendants ultimately argue that the plaintiffs’ challenge to the health care statute ignores the teaching of the modern Supreme Court and should be rejected.  As an additional argument, the defendants assert that the health care statute is independently sustainable as a valid exercise of Congress’s taxing power.

To date, five amicus briefs have been filed in this case, including those from the American Center for Law & Justice, the Cato Institute and Professor Randy E. Barnett, the Washington Legal Foundation and several members of Congress, Mountain States Legal Foundation, and Professor Steven J. Willis of the University of Florida College of Law.  The amici each urge reversal of the district court’s decision in this case upholding the individual mandate.  See Amicus Curiae Brief of the ACLJ (PDF); Amici Curiae Brief of The Cato Institute (PDF); Amicus Curiae Brief of The Washington Legal Foundation (PDF); Amicus Curiae Brief of Mountain States Legal Foundation (PDF); Amicus Curiae Brief of Steven J. Willis (PDF).

We will continue to follow this case closely.