As we reported on Monday, a Virginia federal judge made national headlines when he declared that the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148, is unconstitutional. See Commonwealth of Virginia, et al. v. Sebelius (E.D. Va., Case No. 3:10-cv-188) (PDF). On Tuesday, it was reported that the U.S. Justice Department plans to appeal the Virginia decision to the Fourth Circuit Court of Appeals rather than seeking expedited review at the U.S. Supreme Court. That means that the first case to reach the Supreme Court involving a constitutional challenge to the new health care statute may come out of the Sixth Circuit, which is currently addressing the issue. See Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388). Briefing in the Sixth Circuit case is scheduled to be completed by the end of January 2011.

On Wednesday, the plaintiffs in the Sixth Circuit case filed their opening brief. See Appellants' Brief (PDF). As expected, the plaintiffs’ lead argument is that the individual mandate under the new health care law violates the Commerce Clause because it regulates mere existence based on “inactivity,” and not commercial or economic “activity.” As the plaintiffs argue, “[t]he federal government has never in the history of the United States attempted to stretch the Commerce Clause to include the regulation of inactivity, or in effect, mere ‘existence’ or residence within our Nation’s boundaries.” Id. at 11. For the first time in American history, “Congress has cited the Commerce Clause as authority to regulate a man or woman sitting in the privacy of his or her home doing absolutely nothing but ‘living’ and ‘breathing.’” Id. The plaintiffs rely on the Supreme Court’s decisions in United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), which both invalidated federal statutes that sought impermissibly to regulate purely local, non-commercial activity.

In their appellants' brief, the plaintiffs also address the fallback argument that the health care statute can be supported by the Constitution’s grant of power to Congress under its taxing and spending authority, arguing that the statute’s penalty imposed for failure to abide by the individual mandate is not a constitutional tax.

The American Center for Law & Justice ("ACLJ") supported the plaintiffs-appellants by filing an amicus brief, in which it similarly argues that the new health care statute exceeds Congress’s authority under the Commerce Clause. See Amicus Curiae Brief of the ACLJ (PDF). The ACLJ also argues that because the individual mandate is unconstitutional and not severable from the remainder of the statute, the entire statute must be held invalid.

We will continue to follow the Sixth Circuit case closely, including analyzing the arguments that will be made to defend the health care statute.