11-117 01 petition for writ of certiorari

8/3/2019 11-117 01 Petition for Writ of Certiorari

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NO.

In theIn theIn theIn theIn the

Supreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United States

THOMAS MORE LAW CENTER, JANN DEMARS,JOHN CECI, STEVEN HYDER, and SALINA HYDER,

Petitioners,v.

BARACK HUSSEIN OBAMA, in his officialcapacity as President of the United States, et al.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

ROBERT JOSEPH MUISECounsel of Record

THOMAS MORE LAW CENTER24 FRANKLLOYD WRIGHT DRIVEP.O. BOX393

ANN ARBOR, MI 48106(734) 827-2001

[email protected]

Counsel for Petitioners

Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001

July 26, 2011

DAVIDYERUSHALMILAW OFFICESOF DAVID

YERUSHALMI, P.C.P.O. BOX6358CHANDLER, AZ 85246(646) 262-0500


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* Pub. L. No. 111-148, 124 Stat. 119 (2010), amended byHealthcare and Education Reconciliation Act of 2010, Pub. L. No.

111-152, 124 Stat. 1029 (2010) (hereinafter Affordable Care Actor Act).

QUESTIONS PRESENTED

This case challenges Congresss authority torequire private citizens to purchase and maintainminimum essential healthcare insurance coverageunder penalty of federal law (hereinafter individualmandate) pursuant to the Patient Protection and

Affordable Care Act.* Petitioners, who are subject tothe individual mandate, seek review of the dividedopinion of the Sixth Circuit, which upheld theconstitutionality of the mandate as a proper exercise

of Congresss Commerce Clause authority.

1. Does Congress have authority under the CommerceClause to require private citizens to purchase andmaintain minimum essential healthcare insurancecoverage under penalty of federal law?

2. Is the individual mandate provision of the Actunconstitutional as applied to Petitioners who arewithout healthcare insurance?


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PARTIES TO THE PROCEEDING

The Petitioners are Thomas More Law Center,Jann DeMars, John Ceci, Steven Hyder, and SalinaHyder (collectively referred to as Petitioners).

The Respondents are President Barack HusseinObama, in his official capacity as President of theUnited States; Kathleen Sebelius, in her officialcapacity as Secretary, United States Department ofHealth and Human Services; Eric H. Holder, Jr., in his

official capacity as Attorney General of the UnitedStates; and Timothy F. Geithner, in his officialcapacity as Secretary, United States Department ofTreasury (collectively referred to as Respondents).


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TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . v

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED . . . . . . . . . . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

REASONS FOR GRANTING THE PETITION . . . 5

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

APPENDIX

Appendix A: Opinion/Judgment, United StatesCourt of Appeals for the SixthCircuit(June 29, 2011) . . . . . . . . . . . . . . 1a


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Appendix B: Stipulated Order DismissingRemaining Claims WithoutPrejudice, United States DistrictCourt for the Eastern District ofMichigan(October 21, 2010) . . . . . . . . . . 92a

Appendix C: Order Denying Plaintiffs Motionfor Injunction and DismissingPlaintiffs First and SecondClaims for Relief [Doc. #7],

United States District Court forthe Eastern District of Michigan(October 7, 2010) . . . . . . . . . . . 97a

Appendix D: Statutes26 U.S.C. 5000A . . . . . . . 121a42 U.S.C. 18022 . . . . . . . 133a42 U.S.C. 18091 . . . . . . . 143a

Appendix E: Plaintiffs-Appellants Letter Brief,United States Court of Appeals

for the Sixth Circuit(May 23, 2011) . . . . . . . . . . . . 147a


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TABLE OF AUTHORITIES

CASES

Bond v. United States,No. 09-1227, 2011 U.S. LEXIS 4558 (June 16,2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 22, 23

City of Chicago v. Morales,527 U.S. 41 (1999) . . . . . . . . . . . . . . . . . . . . . . 25

Commonwealth of Va. v. Sebelius,728 F. Supp. 2d 768 (E.D. Va. 2010) . . . . . . . . 26

Gibbons v. Ogden,22 U.S. 1 (1824) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Gonzales v. Raich,545 U.S. 1 (2005) . . . . . . . . . . . . . . . . . . . .passim

Heart of Atlanta Motel, Inc. v. United States,379 U.S. 241 (1964) . . . . . . . . . . . . . 11, 13, 19, 21

Hodel v. Virginia Surface Mining & ReclamationAssn, Inc.,452 U.S. 264 (1981) . . . . . . . . . . . . . . . . . . . . . 10

Katzenbach v. McClung,379 U.S. 294 (1964) . . . . . . . . . . . . . . . 11, 19, 21

Perez v. United States,402 U.S. 146 (1971) . . . . . . . . . . . . . . . . . . . . . 10

United States v. Evans,928 F.2d 858 (9th Cir. 1991) . . . . . . . . . . . . . . 13


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United States v. Lopez,514 U.S. 549 (1995) . . . . . . . . . . . . . . . . . .passim

United States v. Morrison,529 U.S. 598 (2000) . . . . . . . . . . . . . . . . . .passim

United States v. Salerno,481 U.S. 739 (1987) . . . . . . . . . . . . . . . 25, 26, 27

Wickard v. Filburn,317 U.S. 111 (1942) . . . . . . . . . . 12, 15, 17, 19, 21

CONSTITUTION

U.S. Const. art. I, 8, cl. 3 . . . . . . . . . . . . . . . . . 1, 9

STATUTES

26 U.S.C. 5000A(a) . . . . . . . . . . . . . . . . . . . . . . 2, 3

26 U.S.C. 5000A(b) . . . . . . . . . . . . . . . . . . . . . . . . 3

26 U.S.C. 5000A(b)(1) . . . . . . . . . . . . . . . . . . . . 2, 4

26 U.S.C. 5000A(d)(2) . . . . . . . . . . . . . . . . . . . . . . 3

26 U.S.C. 5000A(d)(3) . . . . . . . . . . . . . . . . . . . . . . 3

26 U.S.C. 5000A(d)(4) . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. 18022(b)(1) . . . . . . . . . . . . . . . . . . . . . . 4

42 U.S.C. 18091(1) . . . . . . . . . . . . . . . . . . . . . 2, 20


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42 U.S.C. 18091(2) . . . . . . . . . . . . . . . . . . . . . . . 21

42 U.S.C. 18091(C) . . . . . . . . . . . . . . . . . . . . . . . 27

Pub. L. No. 111-148, 124 Stat. 119 (2010), amendedby Healthcare and Education Reconciliation Actof 2010, Pub. L. No. 111-152, 124 Stat. 1029(2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

RULES

Sup. Ct. R. 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 28

OTHERAUTHORITIES

Oliver Wendell Holmes, The Path of the Law, 10Harv. L. Rev. 457 (1897) . . . . . . . . . . . . . . . . . . 3

The Federalist No. 78 (A. Hamilton) . . . . . . . . . 2, 3


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PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals, App. 1a,appears at 2011 U.S. App. LEXIS 13265 (6th Cir. June29, 2011). The opinion of the district court, App. 97a,is reported at 720 F. Supp. 2d 882.

JURISDICTION

The judgment of the court of appeals was enteredon June 29, 2011. App. 90a-91a. The jurisdiction ofthis Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Commerce Clause authorizes Congress Toregulate Commerce with foreign Nations, and amongthe several States, and with the Indian Tribes. U.S.Const. Art. I, 8, cl. 3.

Relevant statutory provisions are reprinted in theappendix to this petition. App. 121a-146a.

STATEMENT

This case challenges the constitutionality of theindividual mandate provision of the Affordable Care

Act, which requires private citizens, includingPetitioners, to purchase and maintain minimumessential healthcare insurance coverage under


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1See Affordable Care Act at 1501 (codified at 26 U.S.C.

5000A(a)). App. 121a-132a. Individuals who fail to satisfy theindividual responsibility requirement must pay a monetary

penalty. See 26 U.S.C. 5000A(b)(1); App. 121a; see also 42U.S.C. 18091(1) (referring to the individual responsibility

requirement); App. 143a.

2 The Sixth Circuit held that the Act was not an exercise of

Congresss taxing power and thus could not be upheld on thatbasis. App. 39a-47a, 74a.

3 A ruling that the individual mandate is unconstitutional does

not mean that Congress is without power to fix the nationalhealthcare system. Such a ruling would simply reaffirm thefundamental notion that when the government acts, it must do so

consistent with the Constitution.SeeBond v. United States, No.09-1227, 2011 U.S. LEXIS 4558, at *17-*19 (June 16, 2011).

4 As Senior District Judge Graham, sitting by designation,

observed in his dissenting opinion below,

To the fatalistic view that Congress will always prevailand courts should step back and let the people, if offended,speak through their political representatives, I say that

courts were designed to be an intermediate body betweenthe people and the legislature, in order, among other

things, to keep the latter within the limits assigned totheir authority. The Federalist No. 78 (A. Hamilton). In

penalty of federal law.

1

Petitioners contend thatCongress exceeded its authority under theConstitution by enacting this mandate.2

The ultimate question for this Court is a legal one.At its core, this case is about the constitutional limitsof the federal government.3 When Congress actsbeyond those limits, as here, the judicial branch shouldexercise its authority as the guardian of ourConstitution and enjoin the ultra vires acts.4


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this arena, the public force is entrusted to the courts.

Oliver Wendell Holmes, The Path of the Law, 10 Harv. L.Rev. 457, 457 (1897). [W]here the will of the legislature,

declared in its statutes, stands in opposition to that of thepeople, declared in the Constitution, the judges ought to

be governed by the latter rather than the former. TheFederalist No. 78.

App. 87a (dissenting).

5 The individual mandate provision requires each applicableindividual to purchase health insurance or be subject to what the

Act calls appropriately a penalty, and at times euphemisticallya Shared Responsibility Payment. 26 U.S.C. 5000A(b). The

definition of an applicable individual, which triggers thisexercise of Congresss Commerce Clause power, is mere existencebecause the definition begins with any individual and then

provides three exclusions: (1) religious objectors who opposehealth insurance in principle; (2) non-residents or illegal

residents; and (3) incarcerated individuals. 26 U.S.C. 5000A(d)(2), (3), & (4); App. 125a-126a.

Petitioners request that the Court grant review ofthis case and strike down the individual mandate toprove that a meaningful limit on Congressscommerce powers exists. See infra text at 6-7; App.50a.

1. President Obama signed the Affordable CareAct into law on March 23, 2010. An essential provisionof the Act requires private citizens, includingPetitioners, to purchase and maintain minimumessential healthcare coverage under penalty of federal

law.5

26 U.S.C. 5000A(a); App. 5a-7a, 121a. What isconsidered an acceptable or minimum essential levelof healthcare coverage is determined by the federal


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6 Simply having insurance is not enough. To avoid a penalty, thehealth insurance plan must include, at a minimum, ambulatory

patient services, emergency services, hospitalization, maternityand newborn care, mental health and substance abuse treatment,prescription drugs, rehabilitative and habilitative services and

devices, laboratory services, preventative services, wellnessservices, chronic disease management, pediatric services, and

dental and vision care for children. See 42 U.S.C. 18022(b)(1);App. 6a, 133a-134a.

government.

6

See 42 U.S.C. 18022(b)(1); App. 6a,133a-134a. If a private citizen does not purchase andmaintain an acceptable level of healthcare coverage,the Act imposes monetary penalties. 26 U.S.C. 5000A(b)(1); App. 6a-7a, 121a.

2. Petitioner Thomas More Law Center (TMLC)is a national public interest law firm based in Ann

Arbor, Michigan. TMLCs employees receivehealthcare insurance through an employer healthcareplan sponsored and contributed to by TMLC. TMLCs

healthcare plan is subject to the provisions andregulations of the Act. TMLC objects, through itsmembers, which include Petitioners DeMars andSteven Hyder, to being forced to purchase healthcareinsurance coverage under penalty of federal law. App.4a.

Petitioners DeMars, Ceci, Steven Hyder, and SalinaHyder are United States citizens, Michigan residents,and federal taxpayers. Petitioners Ceci, Steven Hyder,and Salina Hyder do not have private healthcare

insurance, and they object to being compelled by thefederal government to purchase healthcare coveragepursuant to the Act. Petitioner DeMars obtained


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private healthcare insurance during the pendency ofthis appeal. App. 8a-10a.

Petitioners have arranged their personal affairssuch that it will be a hardship for them to have toeither pay for health insurance that is not necessary ordesirable or face penalties under the Act. App. 9a.

3. Similar to the district court, the Sixth Circuitconcluded that all Petitioners have standing toadvance this constitutional challenge and that their

claims are ripe for review. App. 8a-15a. Moreover, thecourt concluded that the Anti-Injunction Act does notbar this action. App. 15a-19a.

REASONS FOR GRANTING THE PETITION

1. Review is necessary to establish a meaningfullimitation on congressional power under theCommerce Clause. As this Courts own rules provide,certiorari is appropriate when a United States courtof appeals has decided an important question of

federal law that has not been, but should be, settled bythis Court. Sup. Ct. R. 10(c).

As noted by the Congressional Budget Office inAugust 1994:

A mandate requiring all individuals to purchasehealth insurance would be an unprecedentedform of federal action. The government hasnever required people to buy any good or serviceas a condition of lawful residence in the United

States.

See App. 57a.


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In its order upholding the constitutionality of theindividual mandate, the district court acknowledgedthis historical reality, stating, The Court has neverneeded to address the activity/inactivity distinctionadvanced by plaintiffs because in every CommerceClause case presented thus far, there has been somesort of activity. In this regard, the [Affordable Care]

Act arguably presents an issue of first impression.App. 114a.

Circuit Judge Sutton and Senior District Judge

Graham, sitting by designation, both noted in theirrespective opinions the need for this Court to addressthe limits of Congresss Commerce Clause authority inthe context of this case, which has nationalimportance.

In his concurring opinion, Judge Sutton made thefollowing relevant observation:

At one level, past is precedent, and one tilts athopeless causes in proposing new categorical

limits on the commerce power. But there isanother way to look at these precedentsthatthe Court either should stop saying that ameaningful limit on Congresss commercepowers exists or prove that it is so. The stakesof identifying such a limit are high because thecongressional power to regulate is the power topreempt, a power not just to regulate a subjectco-extensively with the States but also to wipeout any contrary state laws on the subject. U.S.Const. art. VI, cl. 2. The [Petitioners] present a

plausible limiting principle, claiming that amandate to buy medical insurance crosses a linebetween regulating action and inaction,


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7 In his opinion, Circuit Judge Martin stated that the

Constitution imposes no categorical bar on regulating inactivity.App. 36a.

between regulating those who have entered amarket and those who have not, one that theCourt and Congress have never crossed before.7

App. 50a. Judge Sutton further stated that we at thecourt of appeals are not just fallible but utterly non-final in this case. . . . App. 50a. He echoed thissentiment throughout his opinion, describing himselfon one occasion as a middle-management judge.

App. 45a. Judge Sutton further observed thatPetitioners presented a theory of constitutional

invalidity that the Court has never considered before,thus concluding that this proves only that theSupreme Court has considerable discretion inresolving this dispute. See App. 59a.

In his dissenting opinion, Judge Graham stated,

NotwithstandingRaich, I believe the Courtremains committed to the path laid down byChief Justice Rehnquist and Justices OConnor,Scalia, Kennedy, and Thomas to establish a

framework of meaningful limitations oncongressional power under the CommerceClause. The current case is an opportunity toprove it so.

App. 88a.


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Judge Graham concluded his dissenting opinionwith a cogent explanation for why the Court shouldgrant this petition:

If the exercise of power is allowed and themandate upheld, it is difficult to see what thelimits on Congresss Commerce Clauseauthority would be. What aspect of humanactivity would escape federal power? Theultimate issue in this case is this: Does thenotion of federalism still have vitality? To

approve the exercise of power would armCongress with the authority to force individualsto do whatever it sees fit (within boundaries likethe First Amendment and Due Process Clause),as long as the regulation concerns an activity ordecision that, when aggregated, can be said tohave some loose, but-for-type of economicconnection, which nearly all human activitydoes. . . . Such a power feels very much like thegeneral police power that the Tenth

Amendment reserves to the States and the

people. A structural shift of that magnitude canbe accomplished legitimately only throughconstitutional amendment.

App. 88a-89a (dissenting).

2. a. The Court has referred to the principles thatestablish the fundamental structure of our governmentembodied in the Constitution, which limits the powersof the federal government to those expresslyenumerated, as first principles:

We start with first principles. The Constitutioncreates a Federal Government of enumerated


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powers. As James Madison wrote, The powersdelegated by the proposed Constitution to thefederal government are few and defined. Thosewhich are to remain in the State governmentsare numerous and indefinite. Thisconstitutionally mandated division of authoritywas adopted by the Framers to ensureprotection of our fundamental liberties. Justas the separation and independence of thecoordinate branches of the Federal Governmentserve to prevent the accumulation of excessive

power in any one branch, a healthy balance ofpower between the States and the FederalGovernment will reduce the risk of tyranny andabuse from either front.

United States v. Lopez, 514 U.S. 549, 552 (1995)(internal citations and quotations omitted).

The first of the discreet enumerated powers of thefederal government are set out in Article I, section 8 ofthe Constitution. The third of this first grouping of

powers is the Commerce Clause, which grantsCongress the power [t]o regulate Commerce withforeign Nations, and among the several States, andwith the Indian Tribes. U.S. Const. art. I, 8, cl. 3.

b. From the early days of our Republic until thepresent, the Court has confronted and grappled withthe meaning and scope of the phrase Commerce . . .among the several States. In the first of these cases,Gibbons v. Ogden, 22 U.S. 1 (1824), the Court heldthat commerce included more than just the traffic

of goods from one state to another; it also included theregulation of commercial intercourse, such asnavigation on the countrys waterways. Id. at 189-90.


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8See also Gonzales v. Raich, 545 U.S. 1, 16-17 (2005); United

States v. Morrison, 529 U.S. 598, 608-09 (2000); United States v.Lopez, 514 U.S. 549, 558-59 (1995); Hodel v. Virginia Surface

Mining & Reclamation Assn, Inc., 452 U.S. 264, 276-77 (1981).

Over the course of the Commerce Clauses long andstoried jurisprudence, the Court has mapped out athree-prong analysis to determine if a federal law (ora regulatory regime promulgated pursuant to it)properly falls within this enumerated grant ofauthority. See Lopez, 514 U.S. at 552-57, 568-74, 583(Kennedy, J., concurring); id. at 593-99 (Thomas, J.,concurring) (reviewing the history of Commerce Clause

jurisprudence).

Beginning withPerez v. United States, 402 U.S. 146

(1971), every important Commerce Clause opinion hasexpressly adopted a three-prong analysis to testwhether legislation falls within the bounds ofpermissibly regulated activities.8 Id. at 150. Thisinquiry presumes that Congress may regulate: (1) theuse of the channels of interstate commerce, such asregulations covering the interstate shipment of stolengoods; (2) to protect the instrumentalities of interstatecommerce, or persons or things in interstatecommerce, such as legislation criminalizing thedestruction of aircraft and theft from interstate

commerce; and (3) those activities that substantiallyaffect interstate commerce. Lopez, 514 at 558-59; seealso Perez, 402 U.S. at 150.

While the first two categories are ratherstraightforward because they touch upon interstatecommerce directly, it is the last category that has so

vexed the Court. Notwithstanding the vexation


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9 Similarly, the plaintiffs in Heart of Atlanta Motel and

Katzenbach, unlike Petitioners here, could opt out of the motel

and restaurant markets and thus place themselves beyond thereach of Congress.

quotient of this prong, its rationale is manifestlyplausible. That is, while there are some localcommercial activities that in themselves do notparticipate whatsoever in interstate commerce, theyare nonetheless quite obviously commercial activitiesthat substantially affect interstate commerce.

Two civil rights era cases of this sort areHeart of Atlanta Motel, Inc. v. United States, 379 U.S. 241(1964), and its companion case, Katzenbach v.

McClung, 379 U.S. 294 (1964). These cases involved a

challenge to the then-recently enacted civil rightslegislation, which prevented motel-hotel owners andrestaurateurs, respectively, from discriminatingagainst their minority consumers. The Court in thosecases made clear that a purely local activity thatsubstantially affects interstate commerce, such asproviding lodging accommodations or food to customerstraveling interstate and dealing in and consuminggoods that were very much a part of interstatecommerce, is properly within the reach of theCommerce Clause because the local activity

substantially and directly affects interstate commerce.Thus, in both cases, the plaintiffs had made anaffirmative choice to engage in commercialactivityactivity that Congress could regulate.9

This third prong begins to vex, however, when theCourt expands its reach to include a purely local, non-commercial activity, which may or may not ever affect


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interstate commerce, simply because it is an integralpart of a broader statutory scheme that permissiblyregulates interstate commerce. The two model casesof this sortbookends separated by more than 60yearsare Wickard v. Filburn, 317 U.S. 111 (1942),and Gonzales v. Raich, 545 U.S. 1 (2005).

In Wickard, the Court held that a regulatoryscheme permissibly regulating commercial, interstateagricultural activity could properly capture the non-commercial, economic activity of individual wheat

farmers growing wheat for their own personalconsumption precisely because this activity could havean adverse affect on the regulatory schemes pricecontrol mechanisms. Similarly, in Raich, the Courtconcluded, relying in large part on Wickard, that non-commercial, home-grown, medicinal marijuana waspermissibly captured by the legislative regulatoryscheme because Congress could rationally concludethat some of this marijuana would leak into the illegalinterstate commercial market, which was the centraltarget of the statutory scheme.

Vexation is inescapable, however, because nestledin between Wickard andRaich are two modern caseswhich are widely understood to cabin the CommerceClauses reach by prohibiting the federal regulation ofpurely local, non-commercial activity. Both United

States v. Lopez , 514 U.S. 549 (1995), and United Statesv. Morrison, 529 U.S. 598 (2000), invalidated federalstatutes which sought impermissibly to regulatepurely local, non-commercial activityactivityCongress had concluded quite rationally could affect

interstate commerce. Specifically, inLopez, the Courtconfronted the Gun-Free School Zone Act of 1990,which criminalized possession of a gun within a


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statutorily defined school zone. It is worth a momentspause here to follow the Courts reasoning in rejectingthe Commerce Clauses reach into this domain of non-commercial activity:

The Governments essential contention, in fine,is that we may determine here that 922(q) is

valid because possession of a firearm in a localschool zone does indeed substantially affectinterstate commerce. The Government arguesthat possession of a firearm in a school zone

may result in violent crime and that violentcrime can be expected to affect the functioningof the national economy in two ways. First, thecosts of violent crime are substantial, and,through the mechanism of insurance, those costsare spread throughout the population. [United

States v. Evans, 928 F.2d 858, 862 (9th Cir.1991)]. Second, violent crime reduces thewillingness of individuals to travel to areaswithin the country that are perceived to beunsafe. [Cf. Heart of Atlanta Motel, Inc., 379

U.S. at 253]. The Government also argues thatthe presence of guns in schools poses asubstantial threat to the educational process bythreatening the learning environment. Ahandicapped educational process, in turn, willresult in a less productive citizenry. That, inturn, would have an adverse effect on theNations economic well-being. As a result, theGovernment argues that Congress couldrationally have concluded that 922(q)substantially affects interstate commerce.

We pause to consider the implications of theGovernments arguments. The Government


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admits, under its costs of crime reasoning,that Congress could regulate not only all violentcrime, but all activities that might lead to

violent crime, regardless of how tenuously theyrelate to interstate commerce. Similarly, underthe Governments national productivityreasoning, Congress could regulate any activitythat it found was related to the economicproductivity of individual citizens: family law(including marriage, divorce, and child custody),for example. Under the theories that the

Government presents in support of 922(q), itis difficult to perceive any limitation on federalpower, even in areas such as criminal lawenforcement or education where Stateshistorically have been sovereign. Thus, if wewere to accept the Governments arguments, weare hard pressed to posit any activity by anindividual that Congress is without power toregulate.

Lopez, 514 U.S. at 563-64 (1995) (internal citations

and references omitted) (emphasis added).

What is striking aboutLopez is that it can hardlybe argued that it was irrational for Congress to haveconcluded that possessing guns near schools wouldaffect interstate commerce. It is no less of an effectthan the possible leakage of private, homegrown,medicinal marijuana fully regulated by California.But what is apparent from the lengthy quote above isthat the Lopez Court understood that if the multi-tiered inference required to move from gun possession

to an effect on interstate commerce was anappropriate nexus for upholding the constitutionality


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of a regulation, that inference would obliterate theConstitutions enumeration of powers.

Morrisons result was similar and no less vexatiousfor the older Wickard and the yet to be renderedRaich.This is especially true because inMorrison, unlike in

Lopez, Congress had made a host of explicit findingssupporting its legislation allowing a federal privateright of action for a woman violently assaulted in agender-based crime. There the Court held:

In contrast with the lack of congressionalfindings that we faced in Lopez, 13981 issupported by numerous findings regarding theserious impact that gender-motivated violencehas on victims and their families. But theexistence of congressional findings is notsufficient, by itself, to sustain theconstitutionality of Commerce Clauselegislation. As we stated in Lopez, Simplybecause Congress may conclude that aparticular activity substantially affects

interstate commerce does not necessarily makeit so. Rather, whether particular operationsaffect interstate commerce sufficiently to comeunder the constitutional power of Congress toregulate them is ultimately a judicial ratherthan a legislative question, and can be settledfinally only by this Court.

In these cases, Congresss findings aresubstantially weakened by the fact that theyrely so heavily on a method of reasoning that we

have already rejected as unworkable if we are tomaintain the Constitutions enumeration ofpowers. Congress found that gender-motivated


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violence affects interstate commerce bydeterring potential victims from travelinginterstate, from engaging in employment ininterstate business, and from transacting withbusiness, and in places involved in interstatecommerce; . . . by diminishing nationalproductivity, increasing medical and other costs,and decreasing the supply of and the demandfor interstate products. Given these findingsand petitioners arguments, the concern that weexpressed inLopez that Congress might use the

Commerce Clause to completely obliterate theConstitutions distinction between national andlocal authority seems well founded. Thereasoning that petitioners advance seeks tofollow the but-for causal chain from the initialoccurrence of violent crime (the suppression ofwhich has always been the prime object of theStates police power) to every attenuated effectupon interstate commerce. If accepted,petitioners reasoning would allow Congress toregulate any crime as long as the nationwide,

aggregated impact of that crime has substantialeffects on employment, production, transit, orconsumption. Indeed, if Congress may regulategender-motivated violence, it would be able toregulate murder or any other type of violencesince gender-motivated violence, as a subset ofall violent crime, is certain to have lessereconomic impacts than the larger class of whichit is a part.

Morrison, 529 U.S. at 614-15 (internal quotations and

citations omitted).


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Ultimately, the majority opinion inRaich struggledmightily with the third prong of the Commerce Clause.This struggle was necessitated by the incongruity andinconsistency of the Courts own jurisprudence. One

version of the Commerce Clause forbade federalregulation to reach non-economic, local activity even ifthat activity in the aggregate might very wellmaterially impact interstate commerce (perLopez and

Morrison). The other version of the Commerce Clausewas understood to reach wholly private, non-commercial activity, like growing your own wheat or

cultivating your own personal marijuana for medicinalpurposes, neither of which might ever actually affectinterstate commerce (per Wickard andRaich). But,thankfully,Raich does not leave the vexing problemunattended.

The Court inRaich suggested how to reconcile thedifferences between these two pairs of CommerceClause decisions. This reconciliation rests in thedistinction between economic activities and non-

economic activities. The legislation at issue inLopez

andMorrison impermissibly dealt with local criminalbehavior that was rooted in violence, but which had nonecessary economic nexus as an activity. That is, thecarrying of a gun or violence against a woman is noteconomic activity in any generic way. Wickard and

Raich, however, permissibly regulated local, non-commercial activity because the cultivation of anagricultural product and a regulated drug wereintrinsicallyeconomic activities. In the Courts ownwords:

Despite congressional findings that such crimes[violence against women in Morrison] had anadverse impact on interstate commerce, we held


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the statute unconstitutional because, like thestatute in Lopez, it did not regulate economicactivity. We concluded that the noneconomic,criminal nature of the conduct at issue wascentral to our decision inLopez, and that ourprior cases had identified a clear pattern ofanalysis: Where economic activity substantiallyaffects interstate commerce, legislationregulating that activity will be sustained.[Morrison, 529 U.S. at 610].

Unlike those at issue in Lopez and Morrison,the activities regulated by the [ControlledSubstances Act (CSA), which criminalizedeven private, medicinal marijuana,] arequintessentially economic. Economics refersto the production, distribution, andconsumption of commodities. Websters Third

New International Dictionary 720 (1966). TheCSA is a statute that regulates the production,distribution, and consumption of commoditiesfor which there is an established, and lucrative,

interstate market. Prohibiting the intrastatepossession or manufacture of an article ofcommerce is a rational (and commonly utilized)means of regulating commerce in that product.Such prohibitions include specific decisionsrequiring that a drug be withdrawn from themarket as a result of the failure to comply withregulatory requirements as well as decisionsexcluding Schedule I drugs entirely from themarket. Because the CSA is a statute thatdirectly regulates economic, commercial


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activity, our opinion inMorrison casts no doubton its constitutionality.

Raich, 545 U.S. at 25-26 (emphasis added).

The point of this Commerce Clause analysis,whether in the expansive rulings ofWickardandRaichor the more careful federalism-sensitive rulings of

Lopez and Morrison, is that these cases and everysingle other Commerce Clause decision since thisNations founding unanimously and explicitly hold

that congressional power under this clause is strictlyand absolutely limited to some kind of affirmativebehavior or activity. Whether its the economicactivity of the non-commercial growing of wheat(Wickard) or marijuana (Raich) within the permissiblelegislative scheme or the commercial activity ofproviding lodging and food services to interstatetravelers in Heart of Atlanta Motel or Katzenbach,before Congress can reach you through the CommerceClause, you must be engaged in some affirmativeactivity.

Moreover, as confirmed by Lopez,Morrison, andRaich, activity alone (like possessing a gun orassaulting a woman)even if it will affect interstatecommerce in the aggregate over timeis not enough tocross the Commerce Clause Rubicon. The activitymust beeconomic. But this means, at the very least,that there must be some activity to apply theCommerce Clause analysis. And, asLopez,Morrison,and Raich make clear, that activity must in and ofitself be economic even if it need not be commercial.

3. a. The Act does not regulate economic activity,but rather the decision to not engage in commercial or


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economic activity. Consequently, the Act does not evenpretend to fit within any of the Courts previousCommerce Clause rulings. The individual mandateattaches to a legal resident of the United States whochooses to sit at home and do nothing. This resident,quite literally, merely exists (i.e., he is living andbreathing). See App. 116a. He or she is neitherengaged in economic activity nor in any other activitythat would bring him or her within the reach of evena legitimate regulatory scheme.Lopez, 514 U.S. at 561(holding that the non-commercial activity must be an

essential part of a larger regulation of economicactivity, in which the regulatory scheme could beundercut unless the intrastate activity wereregulated) (emphasis added). In this case, we haveneither economics nor activities.

b. The Act purports to provide legislative findingsto support Congresss authority to enact the individualmandate under the Commerce Clause. According tothe Act: The individual responsibility requirementprovided for in this section . . . is commercial and

economic in nature, and substantially affectsinterstate commerce, as a result of the effectsdescribed in paragraph (2). 42 U.S.C. 18091(1);

App. 143a. Paragraph (2) sets forth various [e]ffectson the national economy and interstate commerce tosupport mandating the individual responsibilityrequirement. These findings make statements aboutthe general economic and commercial impacthealthcare and healthcare insurance has on thenational economy and how much of that impact isharmful to healthcare generally and to the individual

specifically. The legislative findings conclude bysuggesting that the proposed legislation ameliorates


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these deleterious effects of the current system. See 42U.S.C. 18091(2); App. 143a-146a.

But none of these legislative findings are at allrelevant to the issue this lawsuit raises as a matter oflaw: whether the federal government has authorityunder the Commerce Clause to force Petitioners andother similarly situated persons to purchase andmaintain a required level of insurance coverage orsuffer the consequences of a federally-imposed penalty.

Indisputably, Petitioners without healthcareinsuranceas volitionally uninsured legal residents ofthe United Statesare not now engaged in anycommercial or economic activity that affects in anyway interstate commerce. This is because, unlikeWickard and Raich, or Heart of Atlanta Motel and

Katzenbach, Petitioners are not engaged in anyeconomic activity whatsoever relative to the legislativefindings of the Act or the regulatory scheme of the

Actessential or otherwise.

As the Court forcefully pointed out in bothLopezandMorrison, the national government is restrainedand constrained by federalism not to go beyond itsdiscreet and enumerated powers. This fundamentalrequirement of our federal government, which is andremains the law of the land, was described by theCourt as a first principle. Under the CommerceClause, Congress is limited to regulating at the farreaches of its authority only local economic activitythat it rationally determines is an essential part of alarger regulation ofeconomic activity, in which the

regulatory scheme could be undercut unless theintrastate activity were regulated. SeeLopez, 514U.S. at 561 (emphasis added).


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10 InBond v. United States, No. 09-1227, 2011 U.S. LEXIS 4558

(June 16, 2011), the Court forcefully reemphasized the importantrole federalism plays in protecting the integrity of government

and the freedom of individuals. The Court stated as follows:

The Framers concluded that allocation of powers betweenthe National Government and the States enhances

freedom, first by protecting the integrity of thegovernments themselves, and second by protecting thepeople, from whom all governmental powers are

derived. . . .

Federalism secures the freedom of the individual. Itallows States to respond, through the enactment of

positive law, to the initiative of those who seek a voice inshaping the destiny of their own times without having to

rely solely upon the political processes that control aremote central power. . . .

Federalism also protects the liberty of all persons withina State by ensuring that laws enacted in excess of

delegated governmental power cannot direct or controltheir actions. . . . By denying any one government

complete jurisdiction over all the concerns of public life,federalism protects the liberty of the individual from

arbitrary power. When government acts in excess of itslawful powers, that liberty is at stake.

But thesefar reaches of congressional authority fallfar short of this case because the regulatory scheme ofthe Act seeks to reach not just economic activity, butmere existence and inactivity. Thus, the Act seeks tomandate that Petitioners cease their inactivity, and itfurther designs a penalty scheme to deprivePetitioners of their liberty to choose not to engage in aprivate commercial transaction.10


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Id. at *17-*19; see also id. at *29 (Ginsburg, J., concurring) (In

short, a law beyond the power of Congress, for any reason, is nolaw at all.) (quotations and citation omitted).

11 If Congress has the power to force private citizens to purchasehealthcare insurance, then it would certainly have the power to

mandate the purchase of minimum essential life insurance.Everyone is going to die, and death certainly has economic

consequences that affect interstate commerce, such as loss ofearning power of the deceased, burial costs, etc.

If the Act is understood to fall within CongresssCommerce Clause authority, the federal governmentwill have the absolute and unfettered power to createcomplex regulatory schemes to fix every perceivedproblem imaginable and to do so by ordering privatecitizens to engage in affirmative acts, under penalty oflaw, such as eating certain foods, taking vitamins,losing weight, joining health clubs, buying a GMCtruck, or purchasing an AIG insurance policy,11 amongothers. Consequently, Congress will be incentivized tocreate intrusive regulatory schemes as constitutional

cover for the naked power grabs, thereby turning theConstitution on its head.

Moreover, it is a mistake to conclude that Congresshad Commerce Clause authority to enact theindividual mandate because the healthcare market isunlike other markets. Respondents argued below thatthe Act properly regulates the economic activity ofhealthcare because everyone will at some point in theirlives engage the healthcare market with economicactivity. Therefore, according to the argument,

decisions made today could have future economiceffects. Thus, Respondents argument is that the Actproperly creates a regulatory scheme and penalty


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based on presumed future economic activityactivitythat has not yet occurred and, indeed, may neveroccur. But this effort to make healthcare a kind ofsui generis economic activity based on presumed futurebehavior is not justified by the Courts CommerceClause jurisprudence nor does it provide a cogentbrake to, or principled limitation upon, the federalgovernments claim of unrestrained plenary power tomandate all sorts of behavior, present and future, tocurb healthcare costs. Simply because a particularmarket might be unique in some fashion cant be a

basis for extending Congresss Commerce Clauseauthority to include regulating decisions (and evenindecision) affecting that market. Indeed, the samecould be said about the food market since everyliving, breathing person must participate in thatmarket at some level or else they would perish. Doesthe Constitution permit Congress to force privatecitizens to purchase health foods which they wouldntotherwise purchase under penalty of federal law?Moreover, precisely because the healthcare market isunlike any other market in that a persons health is

arguably affected by almost every decision made on adaily basis, including whether to take vitamins, toexercise, to maintain a certain body weight, etc.,permitting Congress to regulate decisions affecting apersons health gives Congress unbridled power andthus obliterates the very structure of ourconstitutional Republic.

In sum, the Court should grant the petition toestablish a meaningful limitation on congressionalpower under the Commerce Clause.

4. Review is also necessary to determine whetherthe individual mandate is unconstitutional as applied


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to those Petitioners who do not have minimumessential healthcare coverage. As Petitioners arguedbelow, this case challenges the authority of Congressto enact the individual mandate provision. App. 163a.That is, Petitioners challenge Congresss authority toforce themprivate citizens who are not by anymeasure engaged in any relevant commercetopurchase minimum essential healthcare insurancecoverage as a matter of federal law. App. 163a.Consequently, this case could properly be viewed as anas-applied challenge. App. 163a. However, by their

very nature, almost all challenges to the specificexercise of an enumerated power, such as theCommerce Clause, are facial challenges. Thus, ifCongress lacked the authority to enact certainlegislation, such as the individual mandate, thatlegislation adversely affects everyone in everyapplication. In light of this reality, it does not appearthat the no set of circumstances language ofUnited

States v. Salerno, 481 U.S. 739, 745 (1987), has anypractical impact on the resolution of this case. As theCourt stated in City of Chicago v. Morales, 527 U.S. 41,

55 n.22 (1999), To the extent we have consistentlyarticulated a clear standard for facial challenges, it isnot theSalerno formulation, which has never been thedecisive factor in any decision of this Court, including

Salerno itself.

In United States v. Salerno, 481 U.S. 739, 745(1987), the Court stated,

A facial challenge to a legislative Act is, ofcourse, the most difficult challenge to mount

successfully, since the challenger must establishthat no set of circumstances exists under whichthe Act would be valid. The fact that the [Act]


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might operate unconstitutionally under someconceivable set of circumstances is insufficientto render it wholly invalid, since we have notrecognized an overbreadth doctrine outsidethe limited context of the First Amendment.

As Salerno itself suggests, if Congress lackedenumerated authority to pass legislation at itsinception, as in this case, then there would be no setof circumstances . . . under which the Act would be

valid. Thus, there would be no conceivable set of

circumstances under which the Act could be enforcedbecause there was no authority to enact the legislationin the first instancethe law is legally stillborn. SeeCommonwealth of Va. v. Sebelius, 728 F. Supp. 2d 768,773-74 (E.D. Va. 2010); see also App. 74a (dissenting).

Indeed, the Court did not cite Salerno, let aloneapply it, in either United States v. Lopez, 514 U.S. 549(1995), or United States v. Morrison, 529 U.S. 598(2000), cases in which the Court held that Congressexceeded its Commerce Clause authority by enacting

certain legislation. Nor did the Court cite toSalernoin the more recent Commerce Clause case ofGonzalesv. Raich, 545 U.S. 1 (2005).

Nonetheless, in his concurring opinion, whichprovided the narrowest grounds for upholding theindividual mandate, Judge Sutton held thatPetitioners challenge was essentially undone byUnited States v. Salerno, 481 U.S. 739, 745 (1987).

App. 74a (dissenting). That is, Judge Sutton viewedthe constitutional question regarding Congresss

authority to force private citizens to purchase andmaintain minimum essential healthcare insurancecoverage through the no set of circumstances prism


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ofSalernoa view that favor[ed] the government.App. 51a-52a. In doing so, Judge Sutton essentiallyrewrote the individual mandate by placing limits onthe challenged authority of Congress that Congressitself did not impose under the Act. See App. 72a(concluding that the individual mandate wasconstitutional as applied to (1) individuals who

voluntarily purchased insurance and wanted tomaintain it, but not at the minimum essentialcoverage limits, (2) individuals who voluntarilypurchased insurance, but who did not want to be

forced to maintain it at any level of coverage, (3)individuals living in States that already required themto purchase insurance, and (4) individuals under 30who can satisfy the requirement by purchasingcatastrophic-care coverage). Indeed, Congress granteditself much greater authority to regulate privatecitizens because that was its intent: to increase thepool of insured by requiring those with no insurance topurchase minimum essential coverage or pay apenalty. See 42 U.S.C. 18091(C) (finding that theindividual mandate will add millions of new

consumers to the health insurance market, increasingthe supply of, and demand for, health care services,and will increase the number and share of Americanswho are insured); App. 144a. Aside from JudgeSuttons fourth example of catastrophic-care coveragenot yet purchased, every application of CongresssCommerce Clause power cited by him involved ahypothetical in which the citizen was actually engagedin commerce (i.e., the citizen purchased insuranceand/or was covered by an existing insurance plan). ByapplyingSalerno to this case in the fashion employed

by Judge Sutton, heand thus the courtessentiallyavoided answering the fundamental question ofwhether Congress acted within its Commerce Clause


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power when it passed legislation requiring nearly allcitizens, notably those without insurance, to purchaseand maintain health insurance coverage beginning in2014. Consequently, the Court should grant thepetition to answer this important question of federallaw, see Sup. Ct. R. 10(c)and answer it in thenegative.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

ROBERT JOSEPH MUISECounsel of Record

Thomas More Law Center24 Frank Lloyd Wright DriveP.O. Box 393

Ann Arbor, MI 48106Tel: (734) 827-2001

Fax: (734) [email protected]

DAVID YERUSHALMILaw Offices of David Yerushalmi, P.C.P.O. Box 6358Chandler, AZ 85246Tel: (646) 262-0500

Counsel for Petitioners


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APPENDIX


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APPENDIX

TABLE OF CONTENTS

Appendix A: Opinion/Judgment, United StatesCourt of Appeals for the SixthCircuit(June 29, 2011) . . . . . . . . . . . . . . 1a

Appendix B: Stipulated Order DismissingRemaining Claims Without

Prejudice, United States DistrictCourt for the Eastern District ofMichigan(October 21, 2010) . . . . . . . . . . 92a

Appendix C: Order Denying Plaintiffs Motionfor Injunction and DismissingPlaintiffs First and SecondClaims for Relief [Doc. #7],United States District Court forthe Eastern District of Michigan

(October 7, 2010) . . . . . . . . . . . 97a

Appendix D: Statutes26 U.S.C. 5000A . . . . . . . 121a42 U.S.C. 18022 . . . . . . . 133a42 U.S.C. 18091 . . . . . . . 143a

Appendix E: Plaintiffs-Appellants Letter Brief,United States Court of Appealsfor the Sixth Circuit(May 23, 2011) . . . . . . . . . . . . 147a


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APPENDIX A

RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206

UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT

No. 10-2388

[Filed June 29, 2011]THOMAS MORE LAW CENTER;JANN )DEMARS;JOHN CECI;STEVEN HYDER; )SALINAHYDER, )

Plaintiffs-Appellants, ))

v. ))

BARACKHUSSEIN OBAMA, in his official )capacity as President of the United States; )KATHLEEN SEBELIUS, in her official )capacity as Secretary, United States )Department of Health and Human Services; )ERIC H.HOLDER,JR., in his official capacity )as Attorney General of the United States; )TIMOTHYF.GEITHNER, in his official )capacity as Secretary, United States )Department of Treasury, )

Defendants-Appellees. )

)


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* The Honorable James L. Graham, Senior United States DistrictJudge for the Southern District of Ohio, sitting by designation.

Appeal from the United States District Courtfor the Eastern District of Michigan at Detroit.No. 10-11156George C. Steeh, District Judge.

Argued: June 1, 2011

Decided and Filed: June 29, 2011

Before: MARTIN and SUTTON, Circuit Judges;GRAHAM, District Judge.*

_________________

COUNSEL

ARGUED: Robert J. Muise, THOMAS MORE LAWCENTER, Ann Arbor, Michigan, for Appellants. NealKumar Katyal, UNITED STATES DEPARTMENT OFJUSTICE, Washington, D.C., for Appellees. ONBRIEF: Robert J. Muise, THOMAS MORE LAWCENTER, Ann Arbor, Michigan, David Yerushalmi,LAW OFFICES OF DAVID YERUSHALMI, P.C.,Chandler, Arizona, for Appellants. Neal Kumar

Katyal, Mark B. Stern, Alisa B. Klein, AnishaDasgupta, UNITED STATES DEPARTMENT OFJUSTICE, Washington, D.C., for Appellees. Edward L.White, AMERICAN CENTER FOR LAW ANDJUSTICE, Ann Arbor, Michigan, Steven J. Lechner,Joel M. Spector, MOUNTAIN STATES LEGALFOUNDATION, Lakewood, Colorado, Ilya Shapiro,Robert A. Levy, David H. Rittgers, CATO INSTITUTE,Washington, D.C., Cory L. Andrews, WASHINGTONLEGAL FOUNDATION, Washington, D.C., Steven J.


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Willis, UNIVERSITY OF FLORIDA COLLEGE OFLAW, Gainesville, Florida, Catherine E. Stetson,HOGAN LOVELLS US LLP, Washington, D.C.,Kristin M. Houser, SCHROETER, GOLDMARK &BENDER, Seattle, Washington, Keith S. Dubanevich,OREGON DEPARTMENT OF JUSTICE, Salem,Oregon, Walter E. Dellinger, Washington, D.C., Ian R.Millhiser, CENTER FOR AMERICAN PROGRESS,Washington, D.C., John L. Longstreth, Molly K. Suda,K&L GATES LLP, Washington, D.C., Rochelle Bobroff,NATIONAL SENIOR CITIZENS LAW CENTER,

Washington, D.C., Richard L. Rosen, ARNOLD &PORTER LLP, Washington, D.C., Charles A. Rothfeld,MAYER BROWN, Washington, D.C., for Amici Curiae.

MARTIN, J., delivered the opinion of the court, inwhich SUTTON, J., and GRAHAM, D. J., concurred asto Parts I (background) and II (subject matter

jurisdiction) and in which SUTTON, J., concurred inthe judgment. SUTTON, J. (pp. 2753), delivered theopinion of the court as to Part I (taxing power) of hisopinion, in which GRAHAM, D. J., joins. GRAHAM, D.

J. (pp. 5464), delivered a separate opinion concurringin part and dissenting in part.

_________________

OPINION_________________

BOYCE F. MARTIN, JR., Circuit Judge. This is anappeal from the district courts determination that theminimum coverage provision of the Patient Protection


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1 Pub. L. No. 111-148, 124 Stat. 119 (2010), amended by theHealth Care and Education Reconciliation Act of 2010, Pub. L. No111-152, 124 Stat. 1029.

2 Jann DeMars and Steven Hyder are members of Thomas More,while John Ceci and Salina Hyder are not.

and Affordable Care Act

1

is constitutionally sound. Among the Acts many changes to the nationalmarkets in health care delivery and health insurance,the minimum coverage provision requires allapplicable individuals to maintain minimum essentialhealth insurance coverage or to pay a penalty. 26U.S.C. 5000A.

Plaintiffs include Thomas More Law Center, apublic interest law firm, and four individuals: JannDeMars, John Ceci, Steven Hyder, and Salina Hyder.2

The individual plaintiffs are United States citizens,Michigan residents, and federal taxpayers who claimthat the minimum coverage provis ionunconstitutionally compels them to purchase healthinsurance. Thomas More does not assert any injury toitself as an organization or employer, but ratherobjects to the provision on behalf of its members.

Plaintiffs sought a declaration that Congress lackedauthority under the Commerce Clause to pass theminimum coverage provision, and alternatively a

declaration that the penalty is an unconstitutional tax.The district court held that the minimum coverageprovision falls within Congresss authority under theCommerce Clause for two principal reasons: (1) theprovision regulates economic decisions regarding howto pay for health care that have substantial effects onthe interstate health care market; and (2) the


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provision is essential to the Acts larger regulation ofthe interstate market for health insurance. Becausethe district court found the provision to be authorizedby the Commerce Clause, it declined to addresswhether it was a permissible tax under the GeneralWelfare Clause. The district court denied plaintiffsmotion for a preliminary injunction, and they appeal.

This opinion is divided into several parts. First, itprovides background on the Affordable Care Act andthe minimum coverage provision. Second, it addresses

this Courts jurisdiction. Third, it considers whetherthe provision is authorized by the Commerce Clause ofthe Constitution. Fourth, it declines to addresswhether the provision is authorized by the GeneralWelfare Clause. We find that the minimum coverageprovision is a valid exercise of legislative power byCongress under the Commerce Clause and thereforeAFFIRM the decision of the district court.

I. BACKGROUND

Congress found that the minimum coverageprovision is an essential cog in the Affordable Care

Acts comprehensive scheme to reform the nationalmarkets in health care delivery and health insurance.The Act contains five essential components designed toimprove access to the health care and health insurancemarkets, reduce the escalating costs of health care,and minimize cost-shifting. First, the Act builds uponthe existing nationwide system of employer-basedhealth insurance. It establishes tax incentives forsmall businesses to purchase health insurance for

their employees, 26 U.S.C. 45R, and requires certainlarge employers to offer health insurance to theiremployees, id. 4980H. Second, the Act provides for


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the creation of state-operated health benefitexchanges. These exchanges allow individuals andsmall businesses to leverage their collective buyingpower to obtain price-competitive health insurance. 42U.S.C. 18031. Third, the Act expands federalprograms to assist the poor with obtaining healthinsurance. For eligible individuals who purchaseinsurance through an exchange, the Act offers federaltax credits for payment of health insurance premiums,26 U.S.C. 36B, and authorizes federal payments tohelp cover out-of-pocket expenses, 42 U.S.C. 18071.

The Act also expands eligibility for Medicaid. Id. 1396a(a)(10)(A)(i)(VIII). Fourth, the Act bars certainpractices in the insurance industry that haveprevented individuals from obtaining and maintaininghealth insurance. The guaranteed issue requirementbars insurance companies from denying coverage toindividuals with pre-existing conditions, id. 300gg-1(a), 300gg-3(a), and the community ratingrequirement prohibits insurance companies fromcharging higher rates to individuals based on theirmedical history, id. 300gg.

Finally, the Acts Requirement to MaintainMinimum Essential Coverage, 26 U.S.C. 5000A,takes effect in 2014 and requires every applicableindividual to obtain minimum essential coverage foreach month. The Act directs the Secretary of Healthand Human Services in coordination with theSecretary of the Treasury to define the requiredessential health benefits, which must include at leastten general categories of services. 42 U.S.C. 18022(b)(1).

Applicable individuals who fail to obtain minimumessential coverage must include with their annual


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federal tax payment a shared responsibility payment,which is a penalty calculated based on householdincome. 26 U.S.C. 5000A(b), (c). The Act exemptsfrom its penalty provision certain individuals,including those deemed to suffer a hardship withrespect to their capability to obtain coverage. Id. 5000A(e).

A number of Congressional findings accompany theminimum coverage requirement. Congress determinedthat the Federal Government has a significant role in

regulating health insurance, and [t]he requirementis an essential part of this larger regulation ofeconomic activity. 42 U.S.C. 18091(a)(2)(H).Congress found that without the minimum coverageprovision, other provisions in the Act, in particular theguaranteed issue and community rating requirements,would increase the incentives for individuals to waitto purchase health insurance until they needed care.

Id. 18091(a)(2)(I). This would exacerbate the currentproblems in the markets for health care delivery andhealth insurance.See id. Conversely, Congress found

that [b]y significantly reducing the number of theuninsured, the [minimum coverage] requirement,together with the other provisions of this Act, willlower health insurance premiums. Id. 18091(a)(2)(F). Congress concluded that theminimum coverage provision is essential to creatingeffective health insurance markets in which improvedhealth insurance products that are guaranteed issueand do not exclude coverage of pre-existing conditionscan be sold.Id. 18091(a)(2)(I).


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II. DOES THIS COURT HAVE JURISDICTIONOVER PLAINTIFFS CLAIM?

A. Standing and Ripeness

Our first duty is to determine whether this is acase or controversy within the meaning of Article IIIof the Constitution such that we have judicial power toreview this issue.Natl Rifle Assn of Am. v. Magaw,132 F.3d 272, 279 (6th Cir. 1997). We review issues of

justiciability pursuant to Article III de novo. Id. at

278. Standing requires plaintiffs to demonstrateactual present harm or a significant possibility offuture harm.Id. at 279. [T]he presence of one partywith standing is sufficient to satisfy Article IIIs case-or-controversy requirement. Rumsfeld v. Forum for

Academic & Institutional Rights, Inc., 547 U.S. 47, 52n.2 (2006). An issue must be ripe, or ready for review,before we act. Ripeness requires that the injury infact be certainly impending.Natl Rifle Assn of Am.,132 F.3d at 280 (internal quotation marks and citationomitted).

Article III gives claimants standing to file a lawsuitin federal court if they establish injury, causation, andredressability.Lujan v. Defenders of Wildlife , 504 U.S.555, 560-61 (1992). There is little to talk about withrespect to the last two requirements: The UnitedStates caused the alleged injury by enacting theminimum coverage provision, and a favorable decisionwould redress the injury by invalidating the provision.There is more to talk about with respect to the injuryrequirement.

There are two potential theories of injuryactualpresent injury and imminent future injury, id. at


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560and plaintiffs satisfy both of them. As to actualinjury, the declarations of Ceci and Steven Hyder showthat the impending requirement to buy medicalinsurance on the private market has changed theirpresent spending and saving habits. See John CeciMay 27, 2011 Decl. 78; Steven Hyder May 28,2011 Decl. 8.

Ceci and Steven Hyder filed these declarations, itis true, after a third plaintiff, Jann DeMars, obtainedprivate insurance during this appeal. These new

declarations do not contradict anything that Ceci andSteven Hyder said in their earlier declarations, andthere is nothing exceptional, or for that mattersurprising, about the contents of them, which largelyparallel the original DeMars declaration. The UnitedStates concedes that the original DeMars declarationestablished injury, Govt Letter Br. to this Court, at 3-5, as the district court concluded and we agree.

That leaves the objection to our consideration of thenew declarations that they were filed during the

pendency of this appeal. This development, however,occurred in response to another development duringthe appealthe United Statess motion to dismiss filedin the aftermath of DeMarss disclosure that she hadobtained medical insurance. Out of an abundance ofcaution, we could remand the case to the district courtto permit testimony and cross-examination about thecontents of the declarations. However, the UnitedStates offers no reason to believe that anything in thedeclarations is untrue, and we cannot think of anysuch reason ourselves. The Federal Rules of Appellate

Procedure permit the filing of affidavits on appeal,particularly in response to a motion filed by anopposing party, and so do court decisions in settings


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similar to this one.See Fed. R. App. P. 10(e); OuachitaWatch League v. Jacobs, 463 F.3d 1163, 1170-71 (11thCir. 2006); Cabalceta v. Standard Fruit Co., 883 F.2d1553, 1554-55, 1560 (11th Cir. 1989); cf. United Statesv. Murdock, 398 F.3d 491, 500 (6th Cir. 2005).

Summers v. Earth Island Institute, 555 U.S. 488,129 S. Ct. 1142 (2009), does not change matters.There, [a]fter the District Court had entered

judgment, and after the Government had filed itsnotice of appeal, respondents submitted additional

affidavits to the District Court. Id. at 1150 n.*. TheCourt did not consider the affidavits becauserespondents had not met the challenge to theirstanding at the time of judgment [and] could notremedy the defect retroactively.Id. No such problemarose here. In this case, the plaintiffs met thechallenge to their standing at the time of judgment,and indeed the United States did not challenge that

judgment on appeal. Only after DeMars purchasedinsurance and after the appeal had been filed did theUnited States file its motion to dismiss.

In addition to establishing a present actual injury,plaintiffs have shown imminent injurythat thethreatened injury is certainly impending.Friends ofthe Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,528 U.S. 167, 190 (2000). Imminence is a function ofprobability. And probabilities can be measured bymany things, including the certainty that an event willcome to pass. The uncertainty that the event will cometo pass may be based on developments that may occurduring a gap in time between the filing of a lawsuit

and a threatened future injury.See 520 S. Mich. Ave.Assocs., Ltd. v. Devine, 433 F.3d 961, 962 (7th Cir.


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2006) (Standing depends on the probability of harm,not its temporal proximity.).

On March 23, 2010, Congress passed a law thatgoes into effect on January 1, 2014. As the plaintiffssee it, the law requires them to do something that theConstitution prohibits: require that they buy andmaintain a minimum amount of medical insurance.When the plaintiff is an object of the challenged actionthere is ordinarily little question that the action orinaction has caused him injury.Defenders of Wildlife ,

504 U.S. at 561-62.

The only developments that could prevent thisinjury from occurring are not probable and indeedthemselves highly speculative. Plaintiffs, true enough,could leave the country or die, and Congress couldrepeal the law. But these events are hardly probableand not the kinds of future developments that enterinto the imminence inquiry.Riva v. Massachusetts , 61F.3d 1003, 1011 (1st Cir. 1995) (The demise of a partyor the repeal of a statute will always be possible in any

case of delayed enforcement, yet it is well settled thata time delay, without more, will not render a claim ofstatutory invalidity unripe if the application of thestatute is otherwise sufficiently probable.).

Plaintiffs also could buy insurance between thepassage of the law and its effective date. This is lessspeculative, as underscored by the reality that one ofthe individual plaintiffs purchased insurance duringthe last year. But it makes no difference to theimminence inquiry because one of plaintiffs theories

is that Congress may not force individuals to buy ormaintain private insurance.


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Plaintiffs also could become exempt from therequirement because their income could fall below thetax filing threshold or a disaster could befall them,making them eligible for the hardship exception. This,too, is not probable, particularly when it comes to allthree individual plaintiffs, to say nothing of all of themembers of Thomas More Law Center.

In settings like this one, the Supreme Court haspermitted plaintiffs to challenge laws well before theireffective date. The Court has allowed challenges to go

forward even though the complaints were filed almostsix years and roughly three years before the laws wentinto effect. See New York v. United States, 505 U.S.144, 153-54 (1992);Pierce v. Socy of Sisters, 268 U.S.510, 530, 536 (1925); see also Village of Bensenville v.

Fed. Aviation Admin., 376 F.3d 1114, 1119 (D.C. Cir.2004) (over thirteen years). While the point does notcome up often, as most laws have immediate effectivedates, these decisions establish that a lawsuit filedroughly three and a half years before the effective dateof the law is not out of the ordinary.

Although Pierce and New York speak ofjusticiability only in terms of ripeness, their reasoningapplies equally to standing here. At least in thiscontext, where the only Article III question concernsthe imminence of the plaintiffs injury, standinganalysis parallels ripeness analysis.See Duke PowerCo. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 81(1978) (To the extent that issues of ripeness involve,at least in part, the existence of a live Case orControversy, our conclusion that appellees will sustain

immediate injury . . . and that such injury would beredressed by the relief requested would appear tosatisfy this requirement. (internal quotation marks


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omitted)); Warth v. Seldin, 422 U.S. 490, 499 n.10(1974) (The standing question . . . bears close affinityto questions of ripenesswhether the harm assertedhas matured sufficiently to warrant judicialintervention . . . .). Indeed if a defendants ripenessarguments concern only the requirement that theinjury be imminent rather than conjectural orhypothetical then it follows that our analysis of [thedefendants] standing challenge applies equally andinterchangeably to its ripeness challenge. Brooklyn

Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219,

225 (2d Cir. 2006). Whether viewed through the lens ofstanding or of ripeness, the plaintiffs challenge meetsthe requirements of Article III, especially in thecontext of a pre-enforcement facial challenge.

In view of the probability, indeed virtual certainty,that the minimum coverage provision will apply to theplaintiffs on January 1, 2014, no function of standinglaw is advanced by requiring plaintiffs to wait until sixmonths or one year before the effective date to file thislawsuit. There is no reason to think that plaintiffs

situation will change. And there is no reason to thinkthe law will change. By permitting this lawsuit to befiled three and one-half years before the effective date,as opposed to one year before the effective date, theonly thing that changes is that all three layers of thefederal judiciary will be able to reach consideredmerits decisions, as opposed to rushed interim (e.g.,stay) decisions, before the law takes effect. The formeris certainly preferable to the latter, at least in thecurrent setting of this case.

Nor is their claim insufficiently concrete andparticularized.Defenders of Wildlife , 504 U.S. at 560.While some day intentions to travel somewhere or


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to do something that might implicate a federal law donot support a finding of the actual or imminentinjury that the cases demand, id. at 564, plaintiffssituations are not nearly so ephemeral. There is notrip that must be taken, no ticket that must bepurchased, before the injury occurs.See id. at 564 n.2.The plaintiffs claim a constitutional right to be free ofthe minimum coverage provision, and the only thingsaving them from it at this point is two and a halfmore years and an exceedingly concrete some day:January 1, 2014.See 26 U.S.C. 5000A(a).

McConnell v. Federal Election Commission, 540U.S. 93 (2003), does not undermine this conclusion.There the Court ruled that several plaintiffs did nothave standing to challenge a provision of theBipartisan Campaign Reform Act because theiralleged injury . . . [was] too remote temporally.Id. at226. TheMcConnell plaintiffs filed a lawsuit in March2002, 251 F. Supp. 2d 176, 206 (D.D.C. 2003), and theearliest day [McConnell] could be affected by [thechallenged provision was] 45 days before the

Republican primary in 2008. 540 U.S. at 226. TheCourt, however, could not know whether the plaintiffswould even suffer an injury six years later. Id. Thechallenged provision would affect the McConnellplaintiffs only if the following things happened in anelection six years later: (1) a challenger ran in theprimary or election; (2) the plaintiff created anadvertisement mentioning the challenger; (3) theadvertisement did not identify the plaintiff by name;and (4) the broadcasters attempted to chargeMcConnell more than their lowest unit rate for his ads.

Id. at 224-25. A candidate cannot guarantee (much lessprove) that another person will run against him sixyears down the road or that a broadcaster will offer


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him a less than favorable price, and it is unknowablewhat type of political advertisements the candidatewill run when the time comes.

The plaintiffs have no similar problem in this case.The Act itself proves they will be required to purchaseinsurance and maintain it when the time comes.Unlike the McConnell plaintiffs, who had not takenany action that would subject them to the Act, theplaintiffs need not do anything to become subject tothe Act. That, indeed, is their key theorythat mere

existence should not be a basis for requiring someoneto buy health insurance on the private market.Plaintiffs have standing to bring this claim.

B. Anti-Injunction Act

The United States and the plaintiffs now agree thatthe Anti-Injunction Act does not bar this action. Yetbecause this limitation goes to the subject matter

jurisdiction of the federal courts, the partiesagreement by itself does not permit us to review this

challenge. 26 U.S.C. 7421(a); see Arbaugh v. Y & HCorp., 546 U.S. 500, 515-16 & n.11 (2006).

The Anti-Injunction Act says that no suit for thepurpose of restraining the assessment or collection ofany tax shall be maintained in any court. 26 U.S.C. 7421(a). In language at least as broad as the Anti-Injunction Act,Bob Jones Univ. v. Simon, 416 U.S.725, 732 n.7 (1974), the Declaratory Judgment Actforbids declaratory judgment actions with respect toFederal taxes. 28 U.S.C. 2201(a).

The relevant terminology suggests that we mayhear this action. While the Anti-Injunction Act applies


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only to tax[es], 26 U.S.C. 7421(a), Congress calledthe shared-responsibility payment a penalty.See id. 5000A. In many contexts, the law treats taxes andpenalties as mutually exclusive. See, e.g., United

States v. Reorganized CF & I Fabricators of Utah, Inc.,518 U.S. 213, 220 (1996) (determining whether, undersection 507(a)(7) of the Bankruptcy Code, a particularexaction was a tax []as distinct from a . . . penalty);

Dept of Revenue of Mont. v. Kurth Ranch, 511 U.S.767, 784 (1994) (determining that a provision labeleda tax was a penalty and therefore barred by the

Double Jeopardy Clause);Bailey v. Drexel FurnitureCo., 259 U.S. 20, 38 (1922) (construing Congressstaxing power under Article I, 8, cl. 1, based on [t]hedifference between a tax and a penalty). Congressschoice of wordsbarring litigation over tax[es] insection 7421 but imposing a penalty in section5000Asuggests that the former does not cover thelatter.

Other provisions of the Internal Revenue Code, tobe sure, show that some penalties amount to taxes

for purposes of the Anti-Injunction Act. Notsurprisingly, for example, chapter 68 of the RevenueCode imposes penalties on individuals who fail to paytheir taxes. 26 U.S.C. 6651. Less obviously, but tosimilar effect, subchapter B of chapter 68 of theRevenue Code imposes other penalties related to theenforcement of traditional taxes.See, e.g., id. 6676(penalty for erroneously claiming refunds); id. 6704(penalty for failing to keep certain records). Undersection 6671, any reference in this title to taximposed by this title shall be deemed also to refer to

the penalties and liabilities provided by [subchapter Bof chapter 68].See also id. 6201; 6665(a)(2). All ofthese penalties thus count as taxes, including for


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purposes of the Anti-Injunction Act. See Herring v.Moore, 735 F.2d 797, 798 (5th Cir. 1984) (per curiam);Souther v. Mihlbachler, 701 F.2d 131, 132 (10th Cir.1983) (per curiam);Profl Engrs, Inc. v. United States,527 F.2d 597, 599 (4th Cir. 1975). Otherwise, therecalcitrant tax protester could sue to preemptcollection of a substantial monetary charge(accumulated penalties and interest) but not what willoften be a smaller charge (the tax owed).

None of this affects the shared-responsibility

payment, a penalty triggered by failure to comply withthe minimum coverage provision. Section 5000A is nota penalty provided by chapter 68 of the RevenueCode. Congress placed the penalty in chapter 48 of theRevenue Code, and it did not include a provisiontreating the penalty as a tax in the title, as it didwith penalties provided in chapter 68. Distinct wordshave distinct meanings. Congress said one thing insections 6665(a)(2) and 6671(a), and something else insection 5000A, and we should respect the difference.That is particularly so where, as here, Congress had a

reason for creating a difference: Unlike the penaltieslisted in chapter 68, the shared responsibility paymenthas nothing to do with tax enforcement. Cf. Mobile

Republican Assembly v. United States, 353 F.3d 1357,1362 n.5 (11th Cir. 2003) (holding that tax penaltiesimposed for substantive violations of laws not directlyrelated to the tax code do not implicate the Anti-Injunction Act).

Section 5000A(g)(1), it is true, says that [t]hepenalty provided by this section shall be paid upon

notice and demand by the Secretary, and . . . shall beassessed and collected in the same manner as anassessable penalty under subchapter B of chapter 68.


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26 U.S.C. 5000A(g)(1) (emphasis added). Theassessable penalties under subchapter B in turn shallbe paid upon notice and demand by the Secretary, andshall be assessed and collected in the same manner astaxes. Id. 6671(a). In the context of a shared-responsibility payment to the United States for failingto buy medical insurance, however, the most naturalreading of the provision is that the manner ofassessment and collection mentioned in sections5000A(g)(1) and 6671(a) refers to the mechanisms theInternal Revenue Service employs to enforce penalties,

not to the bar against pre-enforcement challenges totaxes.

The same is true of other provisions in the Codetreating penalties as taxes. All that section 6665(a)(2)and section 6671(a) show is that Congress intended totreat certain penalties as taxes in certain contexts.To read these provisions loosely to suggest that everypenalty is a tax would render each particularprovision superfluous. That conclusion makes all themore sense in the context of the Affordable Care Act,

which prohibits the Internal Revenue Service fromusing the customary tools available for collecting taxesand penalties, the very tools the Anti-Injunction Actwas enacted to protect.See Bob Jones Univ., 416 U.S.at 736. In collecting the health care penalty, theInternal Revenue Service may not impose liens on anindividuals property, place levies on an individualspay, or bring criminal charges. 26 U.S.C. 5000A(g)(2)(B). All that the Internal Revenue Servicemay do is one of two things. It may deduct past-duepenalties from future tax refunds, a form of

enforcement exceedingly unlikely to implicate the Anti-Injunction Act. Or it may bring a collectionaction, which most individuals would be unlikely to


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preemptin truth inviteby bringing their ownlawsuit. Last of all, because the minimum coverageprovision does not come into effect until 2014 (and thepenalty could not be assessed or collected until at leasta year later), this lawsuit will hardly interfere with theGovernments need to assess and collect taxes asexpeditiously as possible.Bob Jones Univ., 416 U.S.at 736. Here, the Anti-Injunction Act does not removeour jurisdiction to consider this claim.

III. IS THE MINIMUM COVERAGE

PROVISION A CONSTITUTIONAL EXERCISEOF CONGRESSS COMMERCE POWER?

The question squarely presented here is whetherthe minimum coverage provision is consistent with theCommerce Clause of the Constitution. We review denovo plaintiffs constitutional challenge to theprovision.See United States v. Bowers, 594 F.3d 522,527 (6th Cir. 2010). At the outset, it is important tonote that our elected officials and the public hotlydebated the merits and weaknesses of the Act before

Congress voted, and will undoubtedly continue to inthe future. However, it is not this Courts role to passon the wisdom of Congresss choice.See, e.g., Gibbonsv. Ogden, 22 U.S. (9 Wheat.) 1, 197 (1824) (Thewisdom and the discretion of Congress, their identitywith the people, and the influence which theirconstituents possess at elections[] are . . . the solerestraints on which they have relied, to secure themfrom its abuse.). We consider only whether theConstitution grants Congress the power to enact thislegislation.

The minimum coverage provision, like allcongressional enactments, is entitled to a


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presumption of constitutionality, and will beinvalidated only upon a plain showing that Congresshas exceeded its constitutional bounds. United Statesv. Morrison, 529 U.S. 598, 607 (2000). Thepresumption that the minimum coverage provision is

valid is not a mere polite gesture. It is a deference dueto deliberate judgment by constitutional majorities ofthe two Houses of Congress that an Act is within theirdelegated power . . . . United States v. Five Gambling

Devices, 346 U.S. 441, 449 (1953).

A. The Supreme Courts Commerce ClauseJurisprudence

In our dual system of government, the federalgovernment is limited to its enumerated powers, whileall other powers are reserved to the states or to thepeople. U.S. Const. amend. X. States have authorityunder their general police powers to enact minimumcoverage provisions similar to the one in the AffordableCare Act. See Mass. Gen. Laws Ann. ch. 111M, 2(West 2011). However, the federal government has no

police power and may enact such a law only if it isauthorized by one of its enumerated powers.See, e.g.,United States v. Lopez, 514 U.S. 549, 566 (1995). Ourtask is to review the district courts conclusion thatCongress properly relied on its authority under theCommerce Clause to enact the minimum coverageprovision.

Recognizing that uniform federal regulation isnecessary in some instances, the Commerce Clause ofthe Constitution grants Congress the power [t]o

regulate commerce with foreign Nations, and amongthe several States, and with the Indian Tribes. U.S.Const. Art. I, 8, cl. 3. The Supreme Court has held


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that Congress has broad authority to regulate underthe Commerce Clause. From 1937 to 1994 it did notinvalidate a single law as unconstitutional forexceeding the scope of Congresss Commerce Power.The Court has explained that Congresss CommerceClause power encompasses three broad spheres:(1) the use of the channels of interstate commerce;(2) the instrumentalities of interstate commerce, orpersons or things in interstate commerce; and(3) those activities having a substantial relation tointerstate commerce, . . . i.e., those activities that

substantially affect interstate commerce.Lopez, 514U.S. at 558-59.

Because the United States does not contend thatthe minimum coverage provision falls within either ofthe first two categories, we proceed to considerwhether the provision falls within Congresss power toregulate activities that substantially affect interstatecommerce. Current Supreme Court jurisprudencereveals that Congress may use this category of itsCommerce Power to regulate two related classes of

activity. First, it has long been established thatCongress may regulate economic activity, even ifwholly intrastate, if it substantially affects in

11-117 01 petition for writ of certiorari

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