Judicial Watch filed an amicus curiae (friend of the court) brief in a federal lawsuit challenging the constitutionality of the Patient Protection and Affordable Care Act, also known as Obamacare (Susan Seven-Sky, et al. v. Eric Holder, Jr. et al. (No. 11-5047)). The lawsuit is currently on appeal before the United States Court of Appeals for the District of Columbia Circuit.

Judicial Watch’s brief challenges the constitutionality of the law’s “Requirement to Maintain Minimal Essential Coverage,” or the “individual mandate,” which forces citizens to purchase health care insurance or remit a “shared responsibility payment” to the government. As Judicial Watch notes, the key question for the court is whether an individual who does not purchase health insurance has performed an “activity” that can be regulated by Congress under the Commerce Clause of the Constitution.

…the Supreme Court’s Commerce Clause jurisprudence requires that Congress regulate an activity, as opposed to not engaging in an activity…. Common sense alone compels the conclusion that an individual who does not purchase health insurance has not taken an action or exerted effort. The individual does not even need to take a “mental action.” The individual does not need to make a decision not to purchase health insurance; the individual simply will not purchase health insurance.Since Congress has regulated this passivity, Congress has overstepped the Commerce Clause’sboundaries in attempting to regulate Appellants. Indeed, it seems that Congress has put the cart before the horse. In an effort to regulate Appellants, Congress is attempting to compel them into action through the PPACA (Patient Protection and Affordable Care Act).

Recognizing the “weak underpinnings” of its conclusion that those who do nothing are performing an activity, the lower court attempted to bolster its argument by reasoning that Congress can regulate individuals today because someday everyone will seek medical treatment and this will have an effect on interstate commerce. However, as Judicial Watch noted, in United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court dismissed this approach as “pil[ing] inference upon inference.” The Supreme Court reasoned, “If we were to accept [such] arguments we are hard pressed to posit any activity by an individual that Congress is without power to regulate.”“Obamacare represents an unprecedented government power grab. And if Obamacare is allowed to remain the law of the land, the federal government’s ability to run our lives will be virtually unlimited,” said Judicial Watch President Tom Fitton. “Obamacare is seen by many a fundamental threat to our nation’s constitutional order. We hope this court abides by the plain meaning of the U.S. Constitution and Supreme Court precedent and rules Obamacare unconstitutional.”As Judicial Watch noted in its brief, by current count, at least 20 lawsuits have been filed challenging the constitutionality of Obamacare, with the “individual mandate” representing the main point of contention. Two courts have ruled this mandate unconstitutional, while three other federal courts, including the lower court in this case, have upheld the constitutionality of the mandate.