We have just filed an amicus curiae (”friend of the court”) brief with the Supreme Court arguing that (1) under current Supreme Court rulings, Obamacare’s individual mandate, if it can be justified at all, must be justified under the Constitution’s Necessary and Proper Clause, and (2) scholarly research into the meaning of the Necessary and Proper Clause shows that it is not broad enough to empower Congress to adopt the mandate.
The brief is based largely on a recent book I co-authored with three noted constitutional scholars, Gary Lawson, Geoffrey Miller, and Guy Seidman. All four of us have disparate political views, but all of our research converged on the issue of what the Founders intended the Necessary and Proper Clause to mean.
Independence Institute research director Dave Kopel, Gary Lawson, and I wrote the brief. You can read it here.
A little secret about amicus briefs is that many organizations and politicians file them just to show their supporters they are “doing something.” Consequently, as one legal scholar put it, “Most amicus briefs are junk.”
But we decided not to file unless we could offer something very significant, and I think we have done so. Our first brief explains why the Medicaid mandates are unconstitutional—a subject on which the Court has received relatively little information amid all the furor over the individual mandate. The second brief alerts the Court to historical information largely unknown before the publication of our book, The Origins of the Necessary and Proper Clause, by Cambridge University Press in 2010.
Nice Brief Rob,
Although I have my concerns that it will make any great argument in a system intent on its own protection of itself. We look at these different branches of Government and claim one will restrain the other but look at all the illegal laws in our midst and it becomes mind blowing.
Believe me when I say I hope you are successful or are you training the criminals to become more challenging criminals by bringing intelligent documentary to a corrupt organization who by choice declines to base decision on Rule of law and Constitutional limits?
I have recognized something, that a corrupt Government only grows when all its parts are corrupted. This includes justice proceedings, elections and the whole of its parts. If you know all the parts and you know what you have to corrupt what can stop you from you?
I think all of you with such great study need to really look at this and then recognize from communities in states and states as the end all to this madness. How much energy do we stick into something that by acts shows another intent? Unless of course you are doing it for the sole purpose to show the Supreme Court as part of the corrupt. The actions we see today are too many in too many directions and we should be focusing ourselves back to our real ideology and principals of our Communities. I think that started with the idea of A Republic which by the definitions I was able to locate was any community with in the states of communities which puts or makes the people the law of the land with well managed local Governments.
Since the corrupt financiers are facilitating in both Federal and State Government they do not have the resources for all communities in each state and history has told us it is the people who uphold the Rule of law through the states, maybe we should put our energy into training our communities about life and the idea of Republics or both the briefs to show the corrupt and verify to the communities the reason for teaching ourselves our basics that got us here in the first place.
My fear of my whole federal and state Governments is justified by the results which lay before us which are corrupt laws, huge deficits, Corporatism and money laundering institutions that promote war to build the deficit to fit their needs and not the needs of life within all these Republics as in the original idea of what a Republic really is.
I have noticed a common trend of us attempting to use the corrupt system ruled by the corrupt to correct the corrupt and what I am not seeing is extreme results of achievement. I do see some slight movement by Nullification but here is where the problem really lives. Our Communities are not real educated in the basics of Republics as the original idea of them in total support of them. Therefore poor ideas are arrived at and poor choices then made.
The root of growth is the people, those who choose such a direction and the practice of delivery. As communities grow so will the influence of great choice because nothing takes pace without choice, nothing. I am stating then the foundation of the idea of Republics rest in the hands of the people and the choices they make based upon these ideas and understanding of them as their foundation to all ideas and choices created to achieve any such idea.