Constitutionality of the patient protection and affordable care act under the commerce clause and the necessary and proper clause

Journal of Legal Medicine

Volumn 32, Issue 2, 2011, Pages 139-165

  Huhn, Wilson ^a  

^a UNIVERSITY OF AKRON   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; GOVERNMENT; HEALTH CARE POLICY; HEALTH INSURANCE; HUMAN; LEGAL ASPECT; UNITED STATES;

HEALTH CARE REFORM; HUMANS; INSURANCE, HEALTH; PATIENT PROTECTION AND AFFORDABLE CARE ACT; STATE GOVERNMENT; UNITED STATES;

EID: 79957829946     PISSN: 01947648     EISSN: 1521057X     Source Type: Journal    
DOI: 10.1080/01947648.2011.576603     Document Type: Article

References (176)

1. Patient Protection and Affordable Care Act of 2010 (PPACA), Pub. L. No. 111-148, 124 Stat. 119 (codified as amended throughout 42 U.S.C.)
2. see also Press Release, Office of the Press Secretary, Remarks by the President and Vice-President at the Signing of the Health Insurance Reform Bill (Mar. 23, 2010), available at http://www.whitehouse.gov/the-press-office/ remarks-presidentand- vice-president-signing-health-insurance-reform-bill.
3. See Letter from Douglas W. Elmendorf, Director, Congressional Budget Office, to Nancy Pelosi, Speaker of the House of Representatives, Table 2, Preliminary Estimate of the Effects of the Insurance Coverage Provisions of the Reconciliation Legislation Combined with H.R. 3590 as Passed by the Senate (Mar. 18, 2010), http://www.cbo.gov/ftpdocs/113xx/doc11355/hr4872.pdf (showing a reduction of 32 million persons in the number of uninsured Americans by the year 2019)
4. see also Letter from Richard S. Foster, Chief Actuary, Department of Health and Human Services, to the Centers for Medicare and Medicaid Services 3 (Jan. 8, 2010), http://www.modernhealthcare.com/assets/pdf/ CH68197110.pdf (showing that an "additional 34million peoplewhowould become insured by 2019").
5. See HealthCare.gov, Fact Sheets,Medical Loss Ratio:GettingYour Money's Worth on Health Insurance (Nov. 22, 2010), http://www.healthcare.gov/news/ factsheets/medical loss ratio.html (last visited Feb. 15, 2011) ("Today, many insurance companies spend a substantial portion of consumers' premium dollars on administrative costs and profits, including executive salaries, overhead, and marketing. Thanks to the Affordable Care Act, consumers will receive more value for their premium dollar because insurance companies will be required to spend 80 to 85 percent of premium dollars on medical care and health care quality improvement, rather than on administrative costs, starting in 2011. If they don't, the insurance companies will be required to provide a rebate to their customers starting in 2012.").
6. PPACA § 2704, 42 U.S.C. § 300gg-1 (2010).
7. PPACA § 2713, 42 U.S.C. § 300gg-13 (2010).
8. PPACA § 2711, 42 U.S.C. § 300gg-11 (2010).
9. See Provisions of the Affordable Care Act by Year, 2014, HealthCare.gov, http://www.healthcare. gov/law/about/order/byyear.html#2014 (last visited Feb. 15, 2010) ("Tax credits to make it easier for the middle class to afford insurance will become available for people with income between 100 percent and 400 percent of the poverty line who are not eligible for other affordable coverage. (In 2010, 400 percent of the poverty line comes out to about $43,000 for an individual or $88,000 for a family of four.) The tax credit is advanceable, so it can lower your premium payments each month, rather than making you wait for tax time. It's also refundable, so even moderate-income families can receive the full benefit of the credit. These individuals may also qualify for reduced cost-sharing (copayments, co-insurance, and deductibles).").
10. See CENTERS FOR MEDICARE & MEDICAID SERVICES, 2010 FEDERAL POVERTY GUIDELINES (2009), https:// www.cms.gov/MedicaidEligibility/downloads/ POV10Combo.pdf.
11. See Provisions of the Affordable Care Act, supra note 7.
12. PPACA § 1501, 42 U.S.C. § 18091 (2010)
13. see also PPACA § 5000A, 26 U.S.C. § 5000A (2010).
14. See Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768, 770 (E.D. Va. 2010) (summarizing the MECP. "The Minimum Essential Coverage Provision requires that every United States citizen, other than those falling within specified exceptions, maintain a minimum level of health insurance coverage for each month beginning in 2014. Failure to comply will result in a penalty included with the taxpayer's annual return. As enacted, § 1501 is administered and enforced as a part of the Internal Revenue Code.").
15. PPACA § 5000A(d)(2) (religious exemptions from individual mandate)
16. see also id. § 5000A(e) (exemptions for persons who cannot afford coverage, members of Indian Tribes, and persons whose coverage was temporarily interrupted).
17. PPACA § 1501
18. id. § 5000A
19. see also Virginia, 728 F. Supp. 2d at 770.
20. See Provisions of the Affordable Care Act, supra note 7.
21. PPACA § 1501(a)(1).
22. Id. § 1501(a)(2). Congress stated: EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE COMMERCE.-The effects described in this paragraph are the following: (A) The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased. (B) Health insurance and health care services are a significant part of the national economy. National health spending is projected to increase from $2,500,000,000, 000, or 17.6 percent of the economy, in 2009 to $4,700,000,000,000 in 2019. Private health insurance spending is projected to be $854,000,000, 000 in 2009, and pays for medical supplies, drugs, and equipment that are shipped in interstate commerce. Since most health insurance is sold by national or regional health insurance companies, health insurance is sold in interstate commerce and claims payments flow through interstate commerce. (C) The requirement, together with the other provisions of this Act, will add millions of new consumers to the health insurance market, increasing the supply of, and demand for, health care services. According to the Congressional Budget Office, the requirement will increase the number and share of Americans who are insured. (D) The requirement achieves near-universal coverage by building upon and strengthening the private employer-based health insurance system, which covers 176,000,000 Americans nationwide. In Massachusetts, a similar requirement has strengthened private employer-based coverage: despite the economic downturn, the number of workers offered employer-based coverage has actually increased. (E) Half of all personal bankruptcies are caused in part by medical expenses. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will improve financial security for families. (F) Under the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1001 et seq.), the Public Health Service Act (42 U.S.C. 201 et seq.), and this Act, the Federal Government has a significant role in regulating health insurance which is in interstate commerce. (G) Under sections 2704 and 2705 of the Public Health Service Act (as added by section 1201 of this Act), if there were no requirement, many individuals would wait to purchase health insurance until they needed care. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will minimize this adverse selection and broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums. The requirement is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of preexisting conditions can be sold. (H) Administrative costs for private health insurance, which were $90,000,000,000 in 2006, are 26 to 30 percent of premiums in the current individual and small group markets. By significantly increasing health insurance coverage and the size of purchasing pools, which will increase economies of scale, the requirement, together with the other provisions of this Act, will significantly reduce administrative costs and lower health insurance premiums. The requirement is essential to creating effective health insurance markets that do not require underwriting and eliminate its associated administrative costs.
23. See, e.g., New Jersey Physicians, Inc. v. Obama, Civil Action No. 10-1489 (SDW) (MCA), 2010 WL 5060597 (D.N.J. Dec. 8, 2010) (ruling that patient and physician group lack standing to challenge constitutionality of Act)
24. Shreeve v. Obama, Civil Case No. 1:10-CV-71, 2010 WL 4628177 (E.D. Tenn. Nov. 4, 2010) (holding that plaintiffs lack standing to challenge constitutionality of Act and defendants are immune from suit under the Speech and Debate Clause and doctrine of Presidential Immunity)
25. see also Baldwin v. Sebelius, No. 10CV1033 DMS (WMC), 2010 WL 3418436 (S.D. Cal. Aug. 27, 2010) (dismissing challenge to Act for lack of standing)
26. Taitz v. Obama, 707 F. Supp. 2d 1 (D.D.C. 2010) (dismissing challenge to Act for lack of standing).
27. See, e.g., U.S. Citizens Ass'n v. Sebelius, Case No. 5:10 CV 1065, 2010 WL 4947043 (N.D. Ohio Nov. 22, 2010) (dismissing challenge to individual mandate based upon First Amendment, Due Process, or Right to Privacy, but refusing to dismiss challenge to individualmandate based upon CommerceClause); Florida v. United States Dep't of Health and Human Servs. (Florida I), 716 F. Supp. 2d 1120 (N.D. Fla. 2010) (dismissing challenges to employer mandate and health exchange option)
28. Florida v. United States Dep't of Health and Human Servs. (Florida II), No. 3:10-cv-91-RV/EMT, 2011 WL 285683 (N.D. Fla. Jan. 31, 2011) (dismissing challenge to Medicaid expansion)
29. Liberty Univ., Inc. v. Geithner, No. 6:10-CV-00015-NKM, 2010 WL 4860299 (W.D. Va. Nov. 30, 2010) (upholding constitutionality of employer mandate, abortion funding, and religious conscience provisions of PPACA).
30. See Florida II, 2011 WL 285683 (striking down individual mandate of PPACA)
31. see also Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768 (E.D.Va. 2010). But see Liberty Univ., 2010 WL 4860299 (upholding constitutionality of individual mandate)
32. Thomas More Law Center v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010) (upholding constitutionality of individual mandate).
33. See Liberty Univ., 2010 WL 4860299
34. see also Thomas More Law Center, 720 F. Supp. 2d at 882.
35. See Virginia, 728 F. Supp. 2d at 768
36. see also Florida II, 2010 WL 285683.
37. The government has also argued, in the alternative, that the individual mandate is a constitutional exercise of Congress' power to tax under the General Welfare Clause, U.S. Const., art. I, sec. 8, cl. 1. Having found the individual mandate constitutional under the Commerce Clause and Necessary and Proper Clause, the district courts in Thomas More Law Center and Liberty University did not rule on the government's contention that this law was a tax authorized under the General Welfare Clause. See Liberty University, 2010 WL 4860299, at *11 (finding it unnecessary to consider constitutionality of individual mandate under General Welfare Clause)
38. see also Thomas More Law Center, 720 F. Supp. 2d at 895. The district courts in Virginia and Florida I did reach this issue, and ruled that the provision in the statute imposing an additional tax on income for failure to maintain minimum effective coverage constituted a "penalty" and not a "tax," and therefore was not enacted pursuant to the General Welfare Clause. See Virginia, 728 F. Supp. 2d at 782-88 (finding penalty provision of individual mandate was not a valid enactment under the GeneralWelfare Clause)
39. see also Florida I, 716 F. Supp. 2d at 1133-44.
40. U.S. CONST., art. I, § 8, cl. 1, 3, 18.
41. See Perez v.United States, 402 U.S. 146, 150 (1971) ("The Commerce Clause reaches, in the main, three categories of problems. First, the use of channels of interstate or foreign commerce which Congress deems are being misused, as, for example, the shipment of stolen goods or of persons who have been kidnapped. Second, protection of the instrumentalities of interstate commerce, as for example, the destruction of an aircraft, or persons or things in commerce, as, for example, thefts from interstate shipments. Third, those activities affecting commerce." (citations omitted))
42. see also United States v. Lopez, 514 U.S. 549, 558-59 (1995) (setting forth elements of Affectation Doctrine: "Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce ⋯ . We conclude ⋯ that the proper test requires an analysis of whether the regulated activity 'substantially affects' interstate commerce." (citations omitted))
43. Gonzales v. Raich, 545 U.S. 1, 17 (2005) ("Our case law firmly establishes Congress' power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce." (citation omitted)).
44. Wickard v. Filburn, 317 U.S. 111 (1948) (upholding provision of Agricultural Adjustment Act against Commerce Clause challenge).
45. Raich, 545 U.S. 1 (2005) (upholding provision of Controlled Substances Act against Commerce Clause challenge).
46. See Wickard, 317 U.S. at 128-29 ("This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown if wholly outside the scheme of regulation would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.").
47. See id.
48. See id. at 127-28 ("The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.").
49. See Raich, 545 U.S. at 32-33 (upholding Controlled Substances Act and stating that the challenge to the law "comes down to the claim that a locally cultivated product that is used domestically rather than sold on the open market is not subject to federal regulation. Given the findings in the CSA and the undisputed magnitude of the commercial market for marijuana, our decisions in Wickard v. Filburn and the later cases endorsing its reasoning foreclose that claim.").
50. See id. at 17-21 (discussing Wickard: "The similarities between this case and Wickard are striking.").
51. Lopez, 514 U.S. 549 (1995) (striking down Guns Free School Zones Act as beyond Congress' authority under the Commerce Clause).
52. Id. at 567-68.
53. United States v. Morrison, 529 U.S. 598 (2000) (striking down Violence AgainstWomen Act as beyond Congress' authority under the Commerce Clause).
54. Id. at 617-19.
55. Lopez, 514 U.S. at 567 ("The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce."); Morrison, 529 U.S. at 613 ("Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity.").
56. Lopez, 514 U.S. at 567 ("To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.")
57. Morrison, 529 U.S. at 615 (rejecting the government's argument that gender-based violence substantially affects interstate commerce).
58. Lopez, 514 U.S. at 577.
59. Morrison, 529 U.S. at 618.
60. Id. at 617.
61. Lopez, 514 U.S. at 567-68
62. Morrison, 529 U.S. at 617-18.
63. Plaintiff's Memorandum in Opposition to the Secretary's Motion for Summary Judgment at 2-3, Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010) (No. 3:10cv188), 2010 WL 3740668 (distinguishing the term "activities" from "decisions" or "conduct" and stating: "It is only the third prong [the Affectation Doctrine] that is at issue in this case and under that prong the operative word is 'activities.' And, of course, the status of being uninsured is inactivity; the opposite of activity.")
64. See id.
65. See id. at 12 (stating that the Congress' power under the Commerce Clause and Necessary and Proper Clause "has never won judicial consent in the context of commandeering a citizen into commerce in order to regulate him.").
66. Id. at 13 (stating: "Nor is it true that this is anything like the activities in Wickard and Raich, the cases that establish the existing affirmative outer limits of the Commerce Clause. The explanation for the holdings in both of those cases is that when one engages in the voluntary activity of producing a commodity, which in the aggregate affects the price of the whole, one is not entitled to an atomized, as applied defense to such regulation.").
67. See Plaintiff's Memorandum in Support of Motion for Summary Judgment at 12, Virginia, 728 F. Supp. 2d at 768 (No. 3:10cv188), 2010 WL 3536788 ("Mandate and Penalty are Outside the Existing Outer Limits of the Commerce Clause and Associated Necessary and Proper Clause as Measured by Supreme Court Precedent.").
68. See Plaintiff's Memorandum in Opposition to the Secretary's Motion for Summary Judgment, supra note 42, at 15 ("This negative outer limit of the Commerce Clause is why the Secretary's claim of power must fail. Her theory that activities substantially affecting interstate commerce include the failure to purchase goods or services from another citizen, giving rise to a federal power to require such purchases, would create a particularly strong form of federal police power lacking principled limits. Because no limits on the claimed power have been or can be identified, the Secretary is not entitled to summary judgment.").
69. Thomas More Law Ctr., 720 F. Supp. 2d at 882 (upholding individual mandate of PPACA).
70. Liberty Univ., 2010 WL 4860299.
71. Thomas More Law Ctr., 720 F. Supp. 2d at 893 ("The decision whether to purchase insurance or to attempt to pay for health care out of pocket, is plainly economic.")
72. Liberty Univ., 2010 WL 4860299, at *15 ("The conduct regulated by the individual coverage provision-individuals' decisions to forego purchasing health insurance coverage-is economic in nature, and so the provision is not susceptible to the shortcomings of the statutes struck down by the Court in Lopez and Morrison.").
73. See Thomas More Law Ctr., 720 F. Supp. 2d at 893
74. see also Liberty Univ., 2010 WL 4860299, at *15.
75. See Thomas More Law Ctr., 720 F. Supp. 2d at 893 ("These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers, and the insured population who ultimately pay for the care provided to those who go without insurance.")
76. Liberty Univ., 2010 WL 4860299, at *14 ("I hold that there is a rational basis for Congress to conclude that individuals' decisions about how and when to pay for health care are activities that in the aggregate substantially affect the interstate health care market.").
77. See Thomas More Law Ctr., 720 F. Supp. 2d at 892 (finding Wickard and Raich analogous)
78. see also Liberty Univ., 2010 WL 4860299, at *15 (finding Wickard and Raich analogous).
79. See Thomas More LawCtr., 720 F. Supp. 2d at 894 (citing Wickard and Raich, stating that "[t]he Supreme Court has consistently rejected claims that individuals who choose not to engage in commerce thereby place themselves beyond the reach of the Commerce Clause").
80. Thomas More Law Ctr., 720 F. Supp. 2d at 893
81. Liberty Univ., 2010 WL 4860299, at *14-*15
82. see also Virginia, 728 F. Supp. 2d at 780-81
83. infra text accompanying notes 61-62.
84. Thomas More Law Ctr., 720 F. Supp. 2d at 893
85. Liberty Univ., 2010 WL 4860299, at *14-*15
86. see also Virginia, 728 F. Supp. 2d at 780-81.
87. Thomas More Law Ctr., 720 F. Supp. 2d at 893
88. Liberty Univ., 2010 WL 4860299, at *14-*15
89. see also Virginia, 728 F. Supp. 2d at 780-81.
90. Thomas More Law Ctr., 720 F. Supp. 2d at 893
91. Liberty Univ., 2010 WL 4860299, at *14-*15
92. see also Virginia, 728 F. Supp. 2d at 780-81.
93. Thomas More Law Ctr., 720 F. Supp. 2d at 894.
94. Liberty Univ., 2010 WL 4860299, at *15.
95. 728 F. Supp. 2d 768 (E.D. Va. 2010).
96. 2011 WL 285683 (N.D. Fla. 2011).
97. Virginia, 728 F. Supp. 2d at 781.
98. Id. at 780.
99. Id. at 781-82 (footnote and citations omitted).
100. Florida II, 2011 WL 285683, at *21-23 (drawing distinction between "activity" and "inactivity" and finding that Congress may only regulate "activity" and stating: "Having found that 'activity' is an indispensable part the Commerce Clause analysis (at least as currently understood, defined, and applied in Supreme Court case law), the Constitutionality of the individual mandate will turn on whether the failure to buy health insurance is 'activity."').
101. Virginia, 728 F. Supp. 2d at 781.
102. See United States v. E.C. Knight Co., 156 U.S. 1 (1895) (application of Sherman Antitrust Act to manufacturing has only an indirect effect on interstate commerce and is therefore beyond Congress' power under the Commerce Clause)
103. see also A.L.A. Schechter Poultry Co. v. United States, 295 U.S. 495, 546 (1935) (striking down provision of the Federal Trade Commission Act as beyond Congress' power under the Commerce Clause and stating that, "[i]n determining how far the federal government may go in controlling intrastate transactions upon the ground that they 'affect' interstate commerce, there is a necessary and well-established distinction between direct and indirect effects.").
104. See Houston, E. & W. Tex. Ry. Co. v. United States (Shreveport Rate Cases), 234 U.S. 342 (1914) (upholding power of Interstate Commerce Commission to regulate intrastate railroad rates).
105. See Hammer v. Dagenhart, 247 U.S. 251 (1918) (striking down federal law prohibiting child labor on ground that law exceeds Congress' power under the Commerce Clause).
106. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36-37 (1937) (upholding National Labor Relations Act as proper exercise of Congress' power under the Commerce Clause and rejecting "direct/indirect" test of Congress' power under the Commerce Clause).
107. Lopez, 514 U.S. at 555-56 (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36-38 (1937) and Wickard v. Filburn, 317 U.S. 111, 125 (1942)) (other citations omitted).
108. MORTON J.HORWITZ, THE TRANSFORMATION OFAMERICAN LAW 1870-1960: THECRISIS OF LEGALORTHODOXY (1992)
109. see also GRANT GILMORE, THE AGES OF AMERICAN LAW 41 (1977) (referring to the same period as "the age of faith," (faith in legal principles) in contrast to "the age of anxiety" which followed it).
110. Wickard, 317 U.S. at 123.
111. See Florida II, 2011 WL 285683, at *20 ("As I explained in my earlier order, the fact that legislation is unprecedented does not by itself render it unconstitutional. To the contrary, all federal legislation carries with it a "presumption of constitutionality.").
112. United States Dep't of Agriculture v. Moreno, 413 U.S. 528, 544 (1973).
113. See, e.g.,Williamson v. Lee Optical, 348 U.S. 483, 488 (1955) ("[T]o be constitutional ⋯ [i]t is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it")
114. see also Ferguson v. Skrupa, 372 U.S. 726, 730 (1963) ("The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases-that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely-has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.").
115. 379 U.S. 294 (1964).
116. Id. at 303-04.
117. Id. at 304.
118. Raich, 545 U.S. at 22.
119. Id.
120. see also Greg Sergent, Legal Expert: Ruling on Health Reform Is "Very Defective" and "Will Be Overturned," WASH. POST, Dec. 13, 2010, available at http://voices.washingtonpost.com/plum-line/ 2010/12/legal expert ruling on obamaca.html. (quoting Professor Timothy Jost in his criticism of the district court's reasoning about the Commerce Clause).
121. PPACA § 1501(a)(2) (codified at 42 U.S.C. § 18091(a)(2)).
122. Florida II, 2011 WL 285683, at *26.
123. PPACA § 1501(a)(2).
124. See Lopez, 514 U.S. 549
125. Morrison, 529 U.S. at 598
126. see also supra text accompanying notes 38-41 (discussing the federalism concerns that supported the decisions of the Supreme Court in Lopez and Morrison).
127. Virginia, 728 F. Supp. 2d at 788.
128. See, e.g., Adair v. United States, 208 U.S. 161 (1908) (striking down a federal law that prohibited employers from terminating employees if they joined a labor union, on the ground that the law violated the Due Process Clause of the 5th Amendment)
129. Coppage v. Kansas, 263 U.S. 1 (1915) (striking down a similar state law under the Due Process Clause of the 14th Amendment)
130. Adkins v. Children's Hosp., 261 U.S. 525 (1923) (striking down federal minimum wage law)
131. see also Martin A. Schwartz, The Supreme Court and Local Government Law: The 1999-2000 Term: Due Process and Fundamental Rights, 17 TOURO L. REV. 237 (2000) ("Substantive due process has always been a very contentious doctrine in the history of constitutional law. The first case that dealt with substantive due process was the Dred Scott case, in which the Supreme Court said that slave owners had a substantive due process right to possess slaves. Then, after Dred Scott, the Supreme Court, during the discredited Lochner era, created economic substantive due process rights.")
132. 60 U.S. 393 (1857) (striking down Missouri Compromise on the ground that prohibiting slavery from the northern territories violates the property rights of slaveholders).
133. Id. at 450 ("[A]n act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.")
134. id. at 451-52 ("[T]he right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guarantied [sic] to the citizens of the United States, in every State that might desire it, for twenty years. And the Government in express terms is pledged to protect it in all future time, if the slave escapes from his owner. This is done in plain words too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection that property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights.")
135. 198 U.S. 45 (1905) (striking down state law limiting hours of work for bakers on the ground that the law interfered with liberty of contract under the Due Process Clause).
136. Id. at 53 ("The statute necessarily interferes with the right of contract between the employer and employees, concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution." (citation omitted)).
137. See id. at 57-58 ("The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker ⋯ . There is, in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law to safeguard the public health, or the health of the individuals who are following the trade of a baker.").
138. See Adair, 208 U.S. at 172 (striking down federal law making it a crime for any employer to discharge an employee if he or she became a member of a labor organization and stating: "In our opinion that [provision of federal law] is an invasion of the personal liberty, as well as of the right of property, guaranteed by [the 5th] Amendment")
139. see also Coppage, 236 U.S. at 1 (striking down state law making it a crime for employers to "coerce, demand, require or influence" any person not to become a member of any labor organization)
140. Adkins, 261 U.S. at 525 (striking down federal minimum wage law under "freedom of contract").
141. Lochner, 198 U.S. at 75-76.
142. 300 U.S. 379 (1937) (upholding minimum wage law against a challenge under the Due Process Clause).
143. Id. at 400 (overruling Adkins).
144. Id. at 391.
145. See, e.g., Ferguson v. Skrupa, 372 U.S. 726, 730 (1963) (upholding debt-adjusting law and noting that "[t]he doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases-that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely-has long since been discarded" and that the Court had "returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws").
146. Lochner, 198 U.S. at 75-76 (Holmes, J., dissenting).
147. See id.
148. Virginia, 728 F. Supp. 2d at 781.
149. Florida II, 2011 WL 285683, at *24.
150. U.S. CONST., art. I, § 8, cl. 18.
151. 17 U.S. 316 (1819) (upholding the power of Congress under the Necessary and Proper Clause to create the Second Bank of the United States).
152. Id. at 418.
153. Id. at 419.
154. Wickard, 317 U.S. at 128-29.
155. Lopez, 514 U.S. at 561.
156. Raich, 545 U.S. at 18.
157. Id. at 23-24 ("At issue in Lopez was the validity of the Gun-Free School Zones Act of 1990, which was a brief, single-subject statute making it a crime for an individual to possess a gun in a school zone ⋯ . The statutory scheme that the Government is defending in this litigation is at the opposite end of the regulatory spectrum. As explained above, the CSA, enacted in 1970 as part of the Comprehensive Drug Abuse Prevention and Control Act, 84 Stat. 1242-1284, was a lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession of five classes of "controlled substances.").
158. Id. at 24-25 (quoting Lopez, 514 U.S. at 561).
159. Id. at 34-35 (Scalia, J., concurring in the judgment) ("[T]he category of 'activities that substantially affect interstate commerce,' is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce." (emphasis in original) (citation omitted)).
160. Id. at 35.
161. PPACA § 1501(a)(2)(G), 124 Stat. 119, 243 (codified at 42 U.S.C. § 18091(a)(2)(I)) ("[I]f there were no requirement, many individuals would wait to purchase health insurance until they needed care. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will minimize this adverse selection and broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums. The requirement is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.")
162. Thomas More Law Ctr., 720 F. Supp. 2d at 894-95 (citations omitted) (quoting Raich and Lopez).
163. Liberty Univ., 2010 WL 4860299, at *16 (citations omitted).
164. Virginia, 728 F. Supp. 2d at 782 (citations omitted).
165. See Orin Kerr, The Significant Error in Judge Hudson's Opinion, THE VOLOKH CONSPIRACY (Dec. 13, 2010), http://volokh.com/2010/12/13/the-significant- error-in-judge-hudsons-opinion (criticizing the district court's analysis of the Necessary and Proper Clause).
166. Florida II, 2011 WL 285683, at *26 (quoting Lopez, 514 U.S. at 567 and Morrison, 529 U.S. at 615).
167. See, e.g., INSTITUTE OF MEDICINE, INSURING AMERICA'S HEALTH: PRINCIPLES AND RECOMMENDATIONS 153 (2004) (following the publication of five reports on the effects of the large uninsured population in the United States on individuals, families, communities, health care providers, systems, and the economy as a whole, the Institute of Medicine Committee concluded: [T]he number of uninsured individuals under age 65 is large, growing, and has persisted despite periods of strong economic growth; uninsured children and adults do not receive the care they need; they suffer from poorer health and development, and are more likely to die prematurely than are those with coverage; even one uninsured person in a family can put the health and financial stability of the whole family at risk; when a community has a high uninsured rate, this can adversely affect its overall health status and its health care institutions and providers, and reduce the access of its residents to certain services; [and] the estimated value across society in healthy years of life gained by providing health insurance coverage to uninsured persons is almost certainly greater than the additional costs of providing those who lack coverage with the same level of services as insured persons use. Id.
168. See Virginia, 728 F. Supp. 2d at 789-90 (discussing the issue of severability).
169. Id.
170. Id. at 789.
171. See id. at 790 ("[T]herefore this Court will hew closely to the time-honored rule to sever with circumspection, severing any 'problematic portions while leaving the remainder intact.' Accordingly, the Court will sever only Section 1501 and directly-dependent decisions which make specific reference to Section 1501." (citation omitted)).
172. Raich, 545 U.S. at 22.
173. Florida II, 2011 WL 285683, at *35-39.
174. Id. at *35
175. see also id. at *39 ("In the final analysis, this Act has been analogized to a finely craftedwatch, and that seems to fit. It has approximately 450 separate pieces, but one essential piece (the individual
176. Raich, 545 U.S. at 35 (Scalia, J., concurring).