Brief No. 3 would be of the Supreme Court’s 2012 Obamacare decision. Obamacare (formally known as the Patient Protection and Affordable Care Act or “ACA”) requires that Americans who do not have employer-provided or other form of health insurance to purchase and maintain a certain level of health insurance, and if they fail to do so, will have to pay a tax penalty. For a more detailed explanation of the ACA, see pp. 229-230 of Maggs & Smith. The central question/issue in the case was whether Congress has power under Article I, Section 8 of the Constitution, specifically under the Commerce Clause or the Taxing and Spending Clause, to require most Americans to purchase health insurance as mandated by the Affordable Care Act Separate majorities of the Supreme Court ultimately decided that (A) the Individual Mandate was not a valid exercise of Congress’ power to regulate commerce and (B) the Individual Mandate penalty is a tax for the purposes of the Constitution’s Taxing and Spending Clause and is a valid exercise of Congressional authority, and therefore Congress could require American to purchase health insurance or pay the ax if they failed to do so. Given the complexity of the Supreme Court’s decision, and how little time is left in the semester, I am greatly simplifying the case briefing assignment for NFIB v. Sebelius, and will ask that you only brief the commerce clause issue and the related necessary & proper clause issue. Maggs & Smith segregate the Commerce Clause and Taxing & Spending Clause sections of the Court’s opinions in the case book and therefore you will only have to consider the commerce clause excerpts as they appear in pages 231-244; that is: Chief Justice Roberts’ opinion (which was joined by Scalia, Kennedy, Thomas and Alito) concluding that the Individual Mandate was not a valid exercise of Congress’ power to regulate commerce, pp. 231-236 Justice Ginsburg’s dissenting opinion (which was joined by Beyer, Pagan & Soto mayor), arguing that the Individual Mandate was a valid exercise of Congress’s power to regulate interstate commerce Justice Scalia’s opinion (joined by Kennedy, Thomas & Ali to), pp. 240-244, and Justice Thomas’s separate opinion on p. 244. While these four justices agree with Robert’s opinion on the commerce clause issue they offer additional arguments in support of his conclusion. Simplified format of brief: you can skip the case title, description of facts, statement of the vote, and statement of the significance of the case. Instead you can directly proceed to summarizing the opinions listed above, under the following question: Question/Issue: Does Congress have power under the commerce clause of Article I, Section 8 of the Constitution to require that most Americans to purchase health insurance? Your brief should be limited to 500 words. Doing this brief will double as final exam review because, as you will see, the opinion discuss, summarize and either apply or distinguish the major New Deal and post-New Deal commerce clause cases that we have reviewed: Wickard v. Filburn; Lopez; Jones & Laughlin Steel; Gibbons; Gonzales v. Raich; Morrison.
