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Judicial Watch • 2011 obamacareamicus

2011 obamacareamicus

2011 obamacareamicus

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Date Created:May 23, 2011

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NOT YET SCHEDULED FOR ORAL ARGUMENT] 

 
 
APPEAL NO. 11-5047 
__________ THE 
UNITED STATES COURT APPEALS 
FOR THE DISTRICT COLUMBIA CIRCUIT 
__________ 
 
SUSAN SEVEN-SKY, al., 
 
Plaintiffs-Appellants, 
 
vs. 
 
ERIC HOLDER, JR., al., 
 
Defendants-Appellees. 
__________ 
 
AMICUS CURIAE BRIEF JUDICIAL WATCH, INC. SUPPORT APPELLANTS 
__________ APPEAL FROM THE U.S. DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 
__________ 
 
Dale Wilcox  
Michael Bekesha 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington, D.C. 20024 
(202) 646-5172 
Counsel for Amicus Curiae 
 
CORPORATE DISCLOSURE STATEMENT 
 
 Judicial Watch, Inc. (Judicial Watch) not-for-profit, public interest organization that has parent company and publically-held corporation has 10% greater ownership interest Judicial Watch. 
CERTIFICATE PARTIES,  
RULING, AND RELATED CASES 
 
Parties, Intervenors and Amici:   
 The Parties, Intervenors and Amici appearing the lower court and this appeal are listed the Brief for the Appellant. 
 
Ruling Under Review: 
 The ruling under review this appeal the February 22, 2011 Order The Honorable Gladys Kessler.  The Memorandum Opinion accompanying this Order reported Mead Holder, 2011 U.S. Dist. LEXIS 18592 (D.D.C. Feb. 22, 2011). 
 
Related Cases: 
 There are other associated cases this judicial circuit.  There exist, however, numerous cases other judicial circuits regarding the present issues here.  Four those cases have issued substantive rulings the issue presented here, which include Thomas More Law Center Obama, 720 Supp. 882 (E.D. Mich. 2010), appeal filed, No. 10-2388 (6th Cir. Oct. 22, 2010); Liberty Univ., Inc. Geithner, 2010 U.S. Dist. LEXIS 125922 (W.D. Va. Nov. 30, 2010), appeal filed, No. 10-2347 (4th Cir. Dec. 2010); Commonwealth rel. Cuccinelli Sebelius, 728 Supp. 768 (E.D. Va. 2010), appeal filed, No. 11-1057 (4th Cir. Jan. 18, 
2011); and State Florida rel. Bondi United States Dep=t Health and Human Servs., 2011 U.S. Dist. LEXIS 8822 (N.D. Fla. 2011), appeal filed, No. 11-11021 (11th Cir. Mar. 2011). 
TABLE CONTENTS 
 
CORPORATE DISCLOSURE STATEMENT  ......................................................... 
  
CERTIFICATE PARTIES,  
RULING, AND RELATED CASES ........................................................................ 
 
TABLE CONTENTS .......................................................................................... 
 
TABLE AUTHORITIES ..................................................................................... 
 
GLOSSARY .............................................................................................................. 
 
INTEREST AMICUS CURIAE .......................................................................... 
 
SUMMARY THE ARGUMENT ........................................................................ 
 
ARGUMENT .............................................................................................................     Introduction ............................................................................................. 
 
     II.    The Supreme Court=s Definition AActivity@ ........................................ 
 
     III.   There Exists AActivity@ Subject  
           the Commerce Clause This Case ....................................................... 
 
CONCLUSION ........................................................................................................ 
 
CERTIFICATE COMPLIANCE PURSUANT F.R.A.P. 32(a)(7)(C)  
AND CIRCUIT RULE 32(a)(2) 
 
CERTIFICATE SERVICE 

TABLE AUTHORITIES 

 
Cases Kirschbaum Co. Walling, 316 U.S. 517 (1942) .......................................... 
 
Baltimore Co. Interstate Commerce Com.,  
221 U.S. 612 (1911) ................................................................................................. 
 
Board Trade Olsen, 262 U.S. (1923) ............................................................ Stevens Co. Foster Kleiser Co., 311 U.S. 255 (1940) ............................ 
 
Commonwealth rel. Cuccinelli Sebelius, 728 Supp. 768  
(E.D. Va. 2010), appeal filed, No. 11-1057  
(4th Cir. Jan. 18, 2011)................................................................................................ 
 
Coronado Coal Co. United Mine Workers, 268 U.S. 295 (1925) ....................... 
 
Florida United States, 292 U.S. (1934) ............................................................ 
 
Fry United States, 421 U.S. 542 (1975) ............................................................... 
 
*Gonzales Raich, 545 U.S. (2005) ................................................................ 
 
Gregory Ashcroft, 501 U.S. 452 (1991) ............................................................... 
 
Hanson Denckla, 357 U.S. 235 (1958) ...........................................................  
 
*Heart Atlanta Motel United States, 379 U.S. 241 (1964) .......................... 
 
*Hodel Va. Surface Mining Reclamation Assn, Inc.,  
452 U.S. 264 (1981) ......................................................................................... 
 
Houston, Co. United States, 234 U.S. 342 (1914) ........................ 
 
*Authorities upon which chiefly rely are marked with asterisks 
 
International Brotherhood Teamsters United States,  
291 U.S. 293 (1934) ................................................................................................. 
 
International Shoe Co. Wash., 326 U.S. 310 (1945) ........................................... 
 
Katzenbach McClung, 379 U.S. 294 (1964) .................................................... 
 
Liberty Univ., Inc. Geithner, 2010 U.S. Dist. LEXIS  
125922 (W.D. Va. Nov. 30, 2010), appeal filed,  
No. 10-2347 (4th Cir. Dec. 2010) ........................................................................... 
 
Mandeville Island Farms, Inc. American Crystal Sugar Co.,  
334 U.S. 219 (1948) ................................................................................................. 
 
Mead Holder, 2011 U.S. Dist. LEXIS 18592  
(D.D.C. Feb. 22, 2011)......................................................................................... 
 
New York United States, 505 U.S. 144 (1992) ..................................................... 
 
NLRB Fainblatt, 306 U.S. 601 (1939) ................................................................. 
 
NLRB Jones Laughlin Steel Corp., 301 U.S. (1937) .................................... 
 
Northern Sec. Co. United States, 193 U.S. 197 (1904) ....................................... 
 
*Perez United States, 402 U.S. 146 (1971) ..................................................... 
 
Railroad Com. Wisconsin Chicago, Co.,  
257 U.S. 563 (1922) ................................................................................................. 
 
Southern Co. United States, 222 U.S. (1911) ............................................. 
 
State Florida rel. Bondi United States Dep't  
Health and Human Servs., 2011 U.S. Dist. LEXIS  
8822 (N.D. Fla. 2011), appeal filed, No. 11-11021  
(11th Cir. Mar. 2011) .............................................................................................. 
 
Swift Co. United States, 196 U.S. 375 (1905) .................................................. 
 
Thomas More Law Center Obama, 720 Supp. 882  
(E.D. Mich. 2010), appeal filed, No. 10-2388  
(6th Cir. Oct. 22, 2010) ............................................................................................... 
 
United States Darby, 312 U.S. 100 (1941) .......................................................... 
 
*United States Lopez, 514 U.S. 549 (1995) ....................................... 10, 
 
United States Louisiana, 290 U.S. (1933) ...................................................... 
 
*United States Morrison, 529 U.S. 598 (2000) ............................................... 
 
United States Patten, 226 U.S. 525 (1913) .......................................................... 
 
United States Wrightwood Dairy Co., 315 U.S. 110 (1942)................................ 
 
*Wickard Filburn, 317 U.S. 111 (1942) .................................................. 
 
Constitutions, Statutes, Rules and Regulations U.S.C. 5000A(a)................................................................................................. U.S.C. 5000A(b) ................................................................................................ U.S.C. 5000A(c)................................................................................................. 
 
Agricultural Adjustment Act 1938 U.S.C. 1281, seq.) ................................. 
 
Civil Rights Act 1964 (42 U.S.C. 2000a, seq.) .......................................... 
 
Consumer Credit Protection Act 1968 (18 U.S.C. 891, seq.) ......................... 
 
Controlled Substances Act 1970 (U.S.C. 801, seq.) ....................................... 
 
Fourteenth Amendment the United States Constitution ...................................... 
 
Health Care and Education Reconciliation Act 2010,  
Pub. No. 111-152, 124 Stat. 1029 (2010) ........................................................ 
 
Surface Mining Control and Reclamation Act 1977  
(30 U.S.C. 1201, seq.) ..................................................................................... 
 
The Patient Protection and Affordable Care Act,  
Pub. No. 111-148, 124 Stat. 119 (2010) .................................................... 12, 
 
*U.S. Const. art cl. ............................... 10, 11, 12, 13, 14, 
 
Violence Against Women Act 1994 (42 U.S.C. 13981) .................................. 
 
Other Authorities 
 
Merriam-Webster=s Dictionary Law (1996) ........................................................ 
 
The Federalist No. (C. Rossiter ed. 1961) .................................................... 12-13 
 
 
 
 
 
 
GLOSSARY 
 
AAA   Agricultural Adjustment Act 1938 
 
CCPA  Consumer Credit Protection Act 1968 
 
CRA   Civil Rights Act 1964  
 
CSA   Controlled Substances Act 1970 
 
PPACA  The Patient Protection and Affordable Care Act 2010 
 
SMCRA  Surface Mining Control and Reclamation Act 1977 
  
INTEREST AMICUS CURIAE 
 
 Founded 1994, Judicial Watch non-profit, non-partisan, public interest organization headquartered Washington, D.C. that seeks promote accountability, transparency and integrity government and fidelity the rule law. furtherance these goals, Judicial Watch regularly monitors on-going litigation, files amicus curiae briefs, and prosecutes lawsuits matters that believes are public importance.  The case issue raises important questions constitutional interpretation and the proper balance power between the several states and the federal government.  Specifically, Judicial Watch has undertaken extensive research whether individual who simply does not purchase health insurance has performed activity that Congress may properly regulate under its commerce power.  Because believes that this question alone resolves the matter before this Court, necessary for Judicial Watch file its brief separately from other participating amici curiae.   
 All parties have consented the filing this brief. counsel for party authored this brief whole part, and counsel party made monetary contribution intended fund the preparation submission this brief.  Furthermore, person other than Amicus Curiae, its members, its counsel made monetary contribution its preparation submission. 
SUMMARY THE ARGUMENT 
 Under the Supreme Courts Commerce Clause jurisprudence, Congress may regulate activities that have substantial relation interstate commerce.  Fundamentally issue before this Court whether Section 1501 the Patient Protection and Affordable Care Act regulates activity.  Based review United States Supreme Court precedent well the plain meaning the term activity, Congress exceeded its authority regulating individual who simply does not purchase health insurance. 
ARGUMENT Introduction March 23, 2010, President Barack Obama signed into law the Patient Protection and Affordable Care Act, Pub. No. 111-148, 124 Stat. 119 (2010), amended the Health Care and Education Reconciliation Act 2010, Pub. No. 111-152, 124 Stat. 1029 (2010) (hereafter PPACA).  Before days end, lawsuits were filed federal courts all across the United States challenging the constitutionality the PPACA. current count, more than lawsuits have been filed individuals, organizations and the Attorneys General Governors states.  Chief among the offending provisions 1501, entitled Requirement Maintain Minimum Essential Coverage.  See PPACA  1501 (adding U.S.C.  
5000A) (hereafter individual mandate).   
 Section 1501 requires individuals, with certain limited exceptions, for each month beginning after 2013 [to] ensure that the individual, and any dependent the individual who applicable individual, covered under minimum essential coverage for such month. U.S.C.  5000A(a).  The law requires that individuals report their federal individual income tax returns the months the year which they had such coverage. individual fails obtain such minimum essential coverage, she must include with their annual federal tax payment shared responsibility payment, which fixed dollar amount penalty calculated under the PPACA.  Id.  5000A(b), (c). 
 The various plaintiffs, including Appellants, argue that the individual mandate and penalty exceed Congress= authority under the Commerce Clause the United States Constitution.  U.S. Const. art  cl.  Currently, two United States District Courts have declared that the provision unconstitutional ultra vires Congress Commerce Clause power.1  Three other United States District See Commonwealth rel. Cuccinelli Sebelius, 728 Supp. 768 (E.D. Va. 2010), appeal filed, No. 11-1057 (4th Cir. Jan. 18, 2011) and State Florida rel. Bondi United States Dep't Health and Human Servs., 2011 U.S. Dist. LEXIS 8822 (N.D. Fla. 2011), appeal filed, No. 11-11021 (11th Cir. Mar. 2011). 
 
Courts, including the District Court below, have found the opposite.2 See Thomas More Law Center Obama, 720 Supp. 882 (E.D. Mich. 2010), appeal filed, No. 10-2388 (6th Cir. Oct. 22, 2010); Liberty Univ., Inc. Geithner, 2010 U.S. Dist. LEXIS 125922 (W.D. Va. Nov. 30, 2010), appeal filed, No. 10-2347 (4th Cir. Dec. 2010); and Mead Holder, 2011 U.S. Dist. LEXIS 18592 (D.D.C. Feb. 22, 2011). 
 The Commerce Clause provides that Congress shall have the power [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.  U.S. Const. art cl.  Relevant here what commonly referred the Interstate Commerce Clause portion this grant power: To regulate Commerce among the several States.  The exact meaning this clause has sparked wide debate and many different court interpretations within different federal circuits and the United States Supreme Court.  The High Court has addressed this issue many times since the days Chief Justice Marshall and many times has expanded and contracted the meaning this clause.   
 Distilling its earlier Commerce Clause jurisprudence into workable rule law, the Court United States Lopez, 514 U.S. 549, 558-59 (1995) explained that Congress may regulate only three broad categories activity under its commerce power: (1) the use the channels interstate commerce, (2) the instrumentalities interstate commerce, persons things interstate commerce, even though the threat may come only from intrastate activities, and (3) 
those activities having substantial relation interstate commerce, i.e., those activities that substantially affect interstate commerce. (citations omitted); see also Perez United States, 402 U.S. 146, 150 (1971); Hodel Virginia Surface Mining Reclamation Assn., Inc., 452 U.S. 264, 276-277 (1981); and United States Morrison, 529 U.S. 598, 608-609 (2000). this third category that Appellees argue grants them the authority require individuals purchase health insurance else pay penalty.  The question, thus, presented for this Court=s determination, whether individual who does not purchase health insurance has performed activity.   Lopez, 514 U.S. 558-59.  Or, quite simply, not purchasing health insurance activity that Congress may regulate under its commerce power? review United States Supreme Court precedent where statutes regulating activity were held constitutional demonstrates that the answer no. 
II. The Supreme Court=s Definition AActivity@ Wickard Filburn, 317 U.S. 111 (1942), Filburn, farmer who actively engaged the over-cultivation wheat, was assessed penalty for growing more than his allotted amount wheat under the Agricultural Adjustment Act 1938 (hereafter AAA) U.S.C.  1281, seq.).  Filburn brought suit seeking declaratory judgment that the wheat marketing quota provisions the AAA were unconstitutional because, argued, Congress did not have the power regulate 
his excess wheat production that used for home consumption and not for sale.  Yet the Court found that, although Filburns wheat consumption alone would only have minimal impact the market, when combined with others similarly situated, the impact would substantial interstate commerce.  Id. 127-28. result, the Court upheld the AAA constitutional exercise Congress commerce power.  Most courts and commentators agree that the holding Wickard the Courts most expansive interpretation the Commerce Clause.  See, e.g., Lopez, 514 U.S. 560 (Wickard perhaps the most far reaching example Commerce Clause authority over intrastate activity.). therefore can seen the outermost reach the Commerce Clause. Heart Atlanta Motel United States, 379 U.S. 241 (1964), corporate businessman who actively engaged the discriminatory operation motel brought suit seeking declaratory judgment that the prohibition racial discrimination places public accommodation under Title the Civil Rights Act 1964 (hereafter CRA) (42 U.S.C  2000a, seq.) exceeded Congress powers under the Commerce Clause.  The Court examined Title and its legislative history and determined that was constitutional exercise Congress commerce power because was carefully limited enterprises having direct and substantial relation the interstate flow goods and people.  379 U.S. 250, 
257.  Such enterprises that had effect interstate commerce were the discriminatory operations hotels and motels.  The Court concluded that the prohibitory provisions Title could constitutionally applied the hotel proprietor=s discriminatory activities because the undisputed facts revealed that solicited and received patronage from interstate travelers.  Id. 243, 249-50.  His actions discriminatorily operating the hotels and motels were the aim the CRA. 
 Similarly, Katzenbach McClung, 379 U.S. 294 (1964), several businesspersons who actively engaged the discriminatory operation restaurant brought suit seeking declaratory judgment that the prohibition racial discrimination places public accommodation under Title the CRA exceeded Congress powers under the Commerce Clause.  Once again, the Court held that Title was constitutional exercise Congress commerce power because its application was limited only restaurant that serves offers serve interstate travelers substantial portion the food which serves has moved commerce.  Id. 298, 304.  The activity therefore this instance was the discriminatory operation restaurants. sum, the prohibitory provisions Title could constitutionally applied the restaurant proprietors discriminatory activities because the undisputed facts revealed that they purchased substantial portion their food and inventory from sources engaged interstate commerce.  
Id. 296-97, 304.  The restaurant proprietors, other words, were active participants interstate commerce purchasers. Perez, 402 U.S. 146, Perez, individual who actively engaged loan-sharking, sought review his conviction under Title the Consumer Credit Protection Act 1968 (hereafter CCPA) (18 U.S.C.  891, seq.).  Perez argued that Congress lacked the authority enact the provision under its commerce power because his alleged activities were entirely intrastate.  The Court however held that was constitutional exercise Congress commerce power because Perezs activity extortionate credit transactions, although purely intrastate, directly affected interstate and foreign commerce component organized crime, interstate enterprise.  402 U.S. 154, 156.  The Court, thus, upheld the petitioner=s conviction was clearly member the class which engages extortionate credit transactions.  Id. 153. Hodel, 452 U.S. 264, several businesses, associations, and individuals who were actively engaged surface coal mining operations filed suit seeking declaratory and injunctive relief against various provisions the Surface Mining Control and Reclamation Act 1977 (hereafter SMCRA) (30 U.S.C. 1201, seq.).  Specifically, the plaintiffs alleged that Congress lacked the authority enact provisions the SMCRA that regulated the use private lands within the borders the specific states.  After examining the SMCRA and its legislative history, the Court held that the SMCRA was constitutional exercise Congress= commerce power because surface coal mining directly affects interstate commerce.  452 U.S. 280-81.  Specifically, the Court rejected the plaintiffs= argument that coal mining purely local activity with effect interstate commerce since coal, commodity, moves interstate commerce and the Court has long held that was within Congress= power regulate the conditions under which goods shipped interstate commerce are produced.  Id. 281. 
 Finally, Gonzales Raich, 545 U.S. 16-17 (2005), two individuals who actively cultivated and used physician-recommended marijuana brought suit seeking injunctive and declaratory relief prohibiting the enforcement the Controlled Substances Act 1970 (hereafter CSA) (U.S.C.  801, seq.) the extent that prevented them from possessing, obtaining, manufacturing marijuana for their personal medical use.  The plaintiffs argued that Congress was without power under the Commerce Clause regulate their conduct the marijuana they cultivated, possessed, and used was entirely produced and consumed locally.  Looking precedent, the Court disagreed: Wickard thus establishes that Congress can regulate purely intrastate activity that not itself commercial, that not produced for sale, concludes that failure regulate that class activity would 
undercut the regulation the interstate market that commodity.  545 U.S. 18.  The Court therefore held that the CSA was constitutional exercise Congress commerce power because the activity that was sought regulated possessing, obtaining, manufacturing marijuana directly affects interstate commerce.  Id. 18-20. 
III. There Exists Activity Subject the Commerce Clause This Case. 
 
 The above cases clearly demonstrate that the Supreme Court requires something more than mere passivity for Congress exercise its commerce power.  Said another way, the Supreme Courts Commerce Clause jurisprudence requires that Congress regulate activity, opposed not engaging activity. Wickard, the plaintiff grew wheat; Heart Atlanta Motel, the plaintiff operated hotel; McClung, the plaintiffs operated restaurant; Perez, the plaintiff engaged loan-sharking; Hodel, the plaintiffs engaged surface coal mining; and Raich, the plaintiffs cultivated, possessed, and used marijuana.  Indeed, each these instances and every Supreme Court case decided thus far under the third category delineated Lopez, the legislation regulated some form activity.3 addition the aforementioned cases, see also, e.g., Coronado Coal Co. United Mine Workers, 268 U.S. 295 (1925) (prevented coal manufacturing and production); Int=l Brotherhood Teamsters United States, 291 U.S. 293 (1934) (conspired prevent the delivery live poultry through violence and intimidation); 
Board Trade Olsen, 262 U.S. (1923) (traded futures grain); Houston, Co. United States, 234 U.S. 342 (1914) (established railroad carrier rates); Railroad Com. Wisconsin Chicago, Co., 257 U.S. 563 (1922) (established railroad carrier rates); United States Louisiana, 290 U.S. (1933) (established railroad carrier rates); Florida United States, 292 U.S. (1934) (established railroad carrier rates); Southern Co. United States, 222 U.S. (1911) (operated railroad); Baltimore Co. Interstate Commerce Com., 221 U.S. 612 (1911) (operated railroad); NLRB Jones Laughlin Steel Corp., 301 U.S. (1937) (manufactured iron and steel); NLRB Fainblatt, 306 U.S. 601 (1939) (operated factory that processed garments); Northern Sec. Co. United States, 193 U.S. 197 (1904) (consolidated stock, property and franchise competitor insolvent railroad); Swift Co. United States, 196 U.S. 375 (1905) (bought, slaughtered, processed, and sold live stock); United States Patten, 226 U.S. 525 (1913) (purchased cotton for future delivery); Stevens Co. Foster Kleiser Co., 311 U.S. 255 (1940) (conspired create monopoly the local bill posting business); Fry United States, 421 U.S. 542 (1975) (state employer instituted pay raises); United States Wrightwood Dairy Co., 315 U.S. 110 (1942) (produced and sold milk); United States Darby, 312 U.S. 100 (1941) (manufactured and shipped goods); Kirschbaum Co. Walling, 316 U.S. 517 (1942) (produced and stored goods for commerce); and Mandeville Island Farms, Inc. American Crystal Sugar Co., 334 U.S. 219 (1948) (operated refineries who conspired fix prices). this case, the District Court found that individual who does not purchase health insurance performs activity and, thus, may regulated Congress under the Commerce Clause.  Mead, 2011 U.S. Dist. LEXIS 18592, *55, 56.  Yet, the District Courts position that individual who does not purchase health insurance performs activity contradicted the common meaning activity.  The verb active, the root word activity, defined Merriam-Webster=s Dictionary Law characterized accomplished action effort.  
Merriam-Webster=s Dictionary Law (1996).  Common sense alone compels the conclusion that individual who does not purchase health insurance has not taken action exerted effort.  The individual does not even need take mental action.  The individual does not need make decision not purchase health insurance; the individual simply will not purchase health insurance.  Since Congress has regulated this passivity, Congress has overstepped the Commerce Clause=s boundaries attempting regulate Appellants.  Indeed, seems that Congress has put the cart before the horse. effort regulate Appellants, Congress attempting compel them into action through the PPACA. 
 The drafters the Constitution anticipated power grabs similar the power grab accomplished Congress when passed the PPACA.  Therefore, the drafters established a Federal Government limited powers.  New York United States, 505 U.S. 144, 155 (1992) (quoting Gregory Ashcroft, 501 U.S. 452, 457 (1991)). this regard, James Madison, the father the Constitution, once wrote: 
The powers delegated the proposed constitution the federal government are few and defined.  Those which are remain the State governments are numerous and indefinite.  The powers reserved the several States will extend all the objects which, the ordinary course affairs, concern the lives, liberties, and properties the people, and the internal order, improvement, and prosperity the State. 
 
The Federalist No. 45, 292-293 (C. Rossiter ed. 1961).  Said more plainly, Congress must only exercise those powers expressly granted and more. this case, Congress has clearly overstepped the boundaries established law. worthwhile analogy consider the concept personal jurisdiction.  Courts state can exercise jurisdiction over party located outside the state only long the party has sufficient minimum contacts with the State seeking exercise its jurisdiction.  Int=l Shoe Co. Wash., 326 U.S. 310, 316 (1945).  When individual has minimum contacts with forum State, the Due Process Clause the Fourteenth Amendment prohibits that State from acting against that individual.  Id.  Personal jurisdiction cannot created the unilateral activity those who claim some relationship with nonresident.  Hanson Denckla, 357 U.S. 235, 253 (1958).  The application that rule will vary with the nature and quality the defendant=s activity, but essential each case that there some act which the defendant purposefully avails itself the privilege conducting activities within the forum State, thus invoking the benefits and protection its laws.  Id. 
 Likewise, the Commerce Clause requires that minimum there some economic act which individual purposefully subjects himself herself regulation. demonstrated, the Commerce Clause requires something more than 
mere existing living, breathing human being.  Nor Congress unilateral legislative act sufficient grant power over individual who has not engaged any activity. stated before, Congress has put the cart before the horse.  Under the guise its Commerce Clause authority, Congress requiring individuals purchase health insurance government approved prices and quantities.
 Recognizing the weak underpinnings its conclusion that those who nothing are engaging activity, the District Court attempted bolster its argument reasoning that Congress may regulate all individuals today because someday the future everyone will actively seek medical treatment, which will have effect interstate commerce.  Mead, 2011 U.S. Dist. LEXIS 18592, *56-61.  More specifically, the District Court reasoned that: (1) everyone will get sick, (2) and seek out medical treatment, (3) and possibly require extended stay health care facility (4) that they cannot afford (5) for which family members other charitable organizations will not cover, (6) and health care providers will have cover, (7) which will result higher health care costs for everyone.  Id.  Despite the obvious factual problems with this argument, i.e., some the plaintiffs have sworn under oath that they will never seek medical treatment adverse their faith and/or nontraditional, homeopathic methods, the Supreme Court rejected Lopez the argument that Congress may regulate activity based solely the effect 
that may have interstate commerce through remote chain inferences.  514 U.S. 563-567 (Court rejected too attenuated the Government=s argument that firearm possession school zones could result violent crime which turn could adversely affect the national economy.).  The Court called pil[ing] inference upon inference.  Id. 567.  The Court proclaimed that the Constitution does not tolerate reasoning that would convert congressional authority under the Commerce Clause general police power the sort retained the States.  Id.  [I]f were accept [such] arguments, the Court reasoned, we are hard pressed posit any activity individual that Congress without power regulate.  Id. 564; see also Morrison, 529 U.S. 615-616 (Court again rejected governments remote chain inferences declare unconstitutional exceeding Congress commerce power  40302 the Violence Against Women Act 1994). 
CONCLUSION 
 For the foregoing reasons, Judicial Watch respectfully advocates that the Court reverse the lower courts ruling and hold that The Patient Protection and Affordable Care Act, Pub. No. 111-148, 124 Stat. 119 (2010), amended the Health Care and Education Reconciliation Act 2010, Pub. No. 111-152, 124 Stat. 1029 (2010), unconstitutional. 
 
Dated:  May 23, 2011   Respectfully Submitted, 
 
      Dale Wilcox 
 
/s/ Michael Bekesha       
Michael Bekesha 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington,  20024 
(202) 646-5172 
 
Counsel for Amicus Curiae
CERTIFICATE COMPLIANCE 
 
 The undersigned certifies that this brief complies with the type-volume limitations Fed. App. 32(a)(7) and Circuit Rule 32(a)(2).  The brief, excluding exempted portions, contains 3,116 words (using Microsoft Word 2010), and has been prepared proportional Times New Roman, 14-point font. 
 
                        /s/ Michael Bekesha
CERTIFICATE SERVICE hereby certify that this 23rd day May 2011, filed via the CM/ECF system and hand (eight copies of) the foregoing Amicus Curiae Brief Judicial Watch, Inc. Support Appellants with the Court and served via the CM/ECF system and First-Class U.S. Mail (two copies of) the foregoing Amicus Curiae Brief Judicial Watch, Inc. Support Appellants to: 
James Matthew Henderson, Sr. 
Colby Mims May 
Jay Alan Sekulow 
American Center for Law and Justice 
201 Maryland Avenue, 
Washington, 20002-5703 Craig Lawrence 
U.S. Attorney=s Office 
Civil Division 
555 4th Street, 
Washington, 20530 
 
Samantha Lee Chaifetz 
Alisa Klein 
Mark Stern 
U.S. Department Justice 
Civil Division, Appellate Staff 
Room 7248 
950 Pennsylvania Avenue, 
Washington, 20530-0001 
 
 
        /s/ Michael Bekesha



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