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					                                                        Team F




                         No. 10-2011


                       In the
United States Court of Appeals for the Twelfth Circuit

           LAURA COULTER AND GLEN HANNITY,
                                         Petitioners,

                              v.

                  ERIC H. HOLDER, et. al,
                                        Respondents.



                 On Writ of Certiorari to the
                United States Court of Appeals,
                       Twelfth Circuit

                   PETITIONERS’ BRIEF
                              TABLE OF CONTENTS
                                                                     PAGE:

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . ii

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . .          iv

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . . 1

OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          7

I.    THIS COURT HAS PROPER SUBJECT MATTER JURISDICTION PURSUANT TO
      ARTICLE III OF THE CONSTITUTION TO HEAR THIS CASE BECAUSE
      PETITIONERS MEET THE REQUIREMENTS FOR STANDING AND
      THE CASE IS RIPE FOR REVIEW. . . . . . . . . . . . . . . . . . . 7

     A.   Petitioners sufficiently satisfy the Lujan test
          for standing. . . . . . . . . . . . . . . . . . . . . . . . .       7

     B.   This case is ripe for review because it presents
          a purely legal question and, absent judicial review,
          will cause a hardship to Petitioners. . . . . . . . . . . . . 13

II. THE INDIVIDUAL MANDATE IS NOT A VALID EXERCISE OF
    CONGRESS’ POWER UNDER THE COMMERCE CLAUSE. . . . . . . . . . .       .   16

     A.   The Individual Mandate is unconstitutional because
          the Commerce Clause does not grant Congress the power
          to regulate inactivity. . . . . . . . . . . . . . . . . . . .      17

     B.   Even assuming Congress’ commerce power does reach
          inactivity, the Individual Mandate is still
          unconstitutional because the link between the
          decision not to purchase health insurance
          does not bear a substantial relation to commerce. . . . . . .      21

     C.   The Individual Mandate does not regulate “economic
          activity” and cannot be upheld as necessary to
          implement a broader regulatory scheme. . . . . . . . . . . .       24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30




                                      i
                         TABLE OF AUTHORITIES

CASES:                                                          PAGES:

Abbott Labs. v. Gardner,
     387 U.S. 136 (1967). . . . . . . . . . . . . . . . . . . .   13-15

Allen v. Wright,
     478 U.S. 737 (1984). . . . . . . . . . . . . . . . . . . .    9-10

Blanchette v. Connecticut General Insurance Corporations,
     419 U.S. 102 (1974). . . . . . . . . . . . . . . . . . . . 13, 15

City of Los Angeles v. Lyons,
     461 U.S. 95 (1982). . . . . . . . . . . . . . . . . . . . . .       9

Commonwealth ex rel. Cuccinelli v. Sebelius,
     2010 WL 5059718 (E.D. Va. Dec. 13, 2010). . . . . . .   17, 25, 28

Cruzan v. Director, Missouri Department of Health,
     497 U.S. 261 (1990). . . . . . . . . . . . . . . . . . . . . . 28

Gibbons v. Ogden,
     9 Wheat. 1 (1824). . . . . . . . . . . . . . . . . . . . . . . 25

Gonzalez v. Raich,
     545 U.S. 1 (2005). . . . . . . . . . . . . . . . 18-19, 24, 26-28

Heart of Atlanta Motel, Inc. v. United States,
     379 U.S. 241 (1964). . . . . . . . . . . . . . . . . . . .   19-20

Hodel v. Virginia Surface Mining & Reclamation Association, Inc.,
     452 U.S. 264 (1981). . . . . . . . . . . . . . . . . . . . . . 25

Hoffman v. Hunt,
     126 F.3d 575 (4th Cir.1997). . . . . . . . . . . . . . . . . . 28

Lujan v. Defenders of Wildlife,
     504 U.S. 555 (1992). . . . . . . . . . . . . . . . . . .   7-9, 11

Marbury v. Madison,
     5 U.S. 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . 7

NLRB v. Jones & Laughlin Steel Corporation,
     301 U.S. 1 (1937). . . . . . . . . . . . . . . . . . . . . 17, 21

Pennsylvania v. West Virginia,
     262 U.S. 553 (1925). . . . . . . . . . . . . . . . . . . . . . 15



                                  ii
Perez v. United States,
     402 U.S. 146, 150 (1971). . . . . . . . . . . . . . . . . . .        25

Shain v. Veneman,
     376 F.3d 815 (2004). . . . . . . . . . . . . . . . . . . . . .        9

Whitmore v. Arkansas,
     495 U.S. 149 (1990). . . . . . . . . . . . . . . . . . . .        8, 10

Thomas More Law Center v. Obama,
     720 F. Supp. 2d 882 (E.D. Mich. 2010). . . . . . . . . . . . . 20

Toilet Goods Association, Inc. v. Gardner,
     387 U.S. 158 (1967). . . . . . . . . . . . . . . . . . . .        14-15

United States v. Lopez,
     514 U.S. 549 (1995). . . . . . . . . . . . . . . . . 16-17, 21-27

United States v. Morrison,
     529 U.S. 598 (2000). . . . . . . . . . . . . . . . . . . .        22-27

Warth v. Seldin,
     422 U.S. 490 (1975). . . . . . . . . . . . . . . . . . . . . 7, 9

Wickard v. Filburn,
     317 U.S. 111 (1942). . . . . . . . . . . . . . . . . 18-19, 26-27

SECONDARY SOURCES:                                                   PAGES:

BLACK’S LAW DICTIONARY,
      3rd ed. 2001. . . . . . . . . . . . . . . . . . . . . . . . .       13

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1966). . . . . . . . . . . . 28

33 Fed. Prac. & Proc. Judicial Review § 8418 (1st ed.). . . . . . .        13

CONSTITUTIONAL PROVISIONS:                                           PAGES:
U.S. Const. Art. I, § 8, cl. 3. . . . . . . . . . . . . . . . . . .        16

U.S. Const. Art. I, § 8, cl. 18 . . . . . . . . . . . . . . . . . .        17

U.S. Const. Art. III, § 2, cl. 1 . . . . . . . . . . 5, 7-8, 11, 13, 16

STATUTORY PROVISIONS                                                 PAGES:
Pub.L. 111−148 § 1501, 124 Stat. 119 (2010) . . . . . . . . . .       passim

28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . 1, 3



                                     iii
F.R.A.P. Rule 35 . . . . . . . . . . . . . . . . . . . . . . . . . . 1
                          QUESTIONS PRESENTED

 I.   Whether this Court may properly hear this case because
      Petitioners have standing and because the case is ripe for
      review.

 II. Whether a provision of the Patient Protection and Affordable Care
     Act mandating that individuals either purchase health insurance
     or pay a penalty exceeds Congress’ Commerce Clause powers and is
     unconstitutional.




                                  iv
                           STATEMENT OF JURISDICTION

       This Court has jurisdiction to review whether a provision of
the Patient Protection and Affordable Care Act is unconstitutional
pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and Rule
35 of the Federal Rules of Appellate Procedure (granting appellate
courts the authority to rehear cases en banc).

                        STATEMENT OF THE CASE AND FACTS1

      In March 2010, the 111th Congress passed the Patient Protection

and Affordable Care Act (hereafter “Patient Protection and Affordable

Care Act” or “Act”), which was then signed into law by President

Barack Obama.    (R. at 3, 10.)         As a result of the Act, Congress seeks

to regulate health care spending and the health insurance industry and

reconcile    their     impacts    on    the       national    economy     and    interstate

commerce.     (R. at 14.)          Section 1501 of the Act (the “Individual

Mandate”)   requires     that    American     citizens       purchase     approved   health

insurance coverage or else they will be subjected to an annual shared

responsibility payment on their next tax return.                   (R. at 3, 10, 11.)

Congressional   enforcement       of    Section       1501    depends     exclusively    on

Commerce    Clause    authority    which          permits    regulation    of    interstate

commerce, as found in Article I, Section 8.                  (R. at 13,14.)

      Petitioners Glen Hannity and Laura Coulter are taxpaying citizens

in the United States and residents of the State of South Virginia.

(R. at 5, 7.)        Both Hannity and Coulter are generally in good health

and could afford health insurance coverage, but both take a holistic

approach to health care and have not had health insurance for over

five years.     (R. at 5-8.)           As such, they only pay for health care

expenses out of pocket as they occur.                   (R. at 5, 7.)           Given their

1
 All factual references and allegations are cited to the official record, as
“R. at [page].”


                                              1
respective      financial       situations,        neither      Hannity       nor    Coulter     would

presently qualify for any of the exemptions under the Act and it is

not likely they will qualify in the future.                         (R. at 5, 7.)         Because of

the    direct       impact   upon    their    finances        and    lifestyles,          Petitioners

firmly object to the government mandate requiring the purchase of the

minimum essential coverage or annual shared responsibility payment.

(R. at 5-8.)          It is Petitioners’ position that the money unduly put

towards mandated health care expenses could have been used for other

discretionary or charitable means.                     (R. at 6, 8.)          For their refusal

to participate in the minimum essential coverage plan, Petitioners

would    be     required     to     pay   a   minimum      total       of    $15,580       in   shared

responsibility payments through the year 2020.                               (R. at 3.)          Those

totals could be greater depending on their respective income during

each taxable year and an array of other variables such as cost of

living. (R. at 3-4.)

        Petitioners argue that they are harmed by the Act because the

shared responsibility payments compel them to adjust their present and

future financial arrangements in order to sufficiently cover the extra

costs.        (R.    at   4.)       Furthermore,       they     claim       that    the    Individual

Mandate is not a power constitutionally granted to Congress under the

Commerce Clause or the Tax Clause.                       (R. at 16.)          Petitioners argue

that    the   Individual        Mandate,      as   well    as    the    imposition         of   shared

responsibility         payments,      exceeds      enumerated        Congressional         authority

and is therefore unconstitutional.                     (R. at 4.)       Any lengthy delay in

determining the enforceability of the Act could leave Petitioners,

along    with       insurance       companies      and    citizens          similarly      situated,



                                                   2
without    an    effective       remedy      due       to     the    time-specific      nature     of

insurance   contracts.           (R.    at    4,       14.)         Moreover,    the   legislative

interpretation       of    the    shared          responsibility          payment      creates     an

ambiguity as to whether it is a penalty or a tax.                            (R. at 16.)      Should

the payments be interpreted as a tax, it is the position of the

Petitioners      that     the    Act    constitutes            an    unlawful      direct    tax   in

violation of both Article I, Section 2, Clause 3 as well as Article I,

Section 9, Clause 4 of the Constitution.                       (R. at 16.)

     The    Respondents         named    in       this      action     are   the    United    States

Department of Health and Human Services (HHS), Attorney General Eric

Holder, Secretary of HHS Kathleen Sebelius, and Secretary of Treasury

Timothy Geithner.         (R. at 9-10.)             Holder, Sebelius, and Geithner are

sued in their official capacities as they are responsible for the

enforcement and administration of the Act.                          (R. at 9-10.)      Petitioners

bring this cause of action against the Respondents under the United

States Constitution, and 28 U.S.C. §§ 2201-2202 (2010).                             (R. at 3, 5.)

This declaratory and injunctive relief seeks to restore deprivations

of the Petitioners’ rights violated by Respondents.                             (R. at 5.)     Given

the constitutional nature of these civil claims against the United

States, this Court has original jurisdiction under 28 U.S.C. §§ 1331

and 1346 (2010).        (R. at 5.)


                                        OPINION BELOW

     On January 7, 2010, Laura Coulter and Glenn Hannity brought suit

against Eric H. Holder, Jr. et al. pursuant to 28 U.S.C. §§ 2201-2202

(2010).         Petitioners      sought       a    declaration          that     the   “Individual




                                                   3
Mandate” provision of the Act and its related shared responsibility

payment requirement are facially unconstitutional, violating Congress’

Commerce     Clause    powers        and    constituting      an    improper      tax     under

Congress’ Taxing and Spending power, respectively.                       Petitioners sought

an injunction against government enforcement of said provisions of the

Act or in the alternative, invalidate the Act in its entirety should

the court find the Act non-severable.

      Defendants’ filed a motion to dismiss, which is not included in

the record, for lack of subject matter jurisdiction and failure to

state a claim.         On September 18, 2010, the United States District

Court for the Eastern District of South Virginia held that subject

matter     jurisdiction      did    exist,    but    nonetheless     granted      Defendants’

motion to dismiss for failure to state a claim.                      Petitioners filed a

motion to alter or amend the judgment, which the court denied.

      On    November       29,    2010,    Petitioners     filed    an   appeal    with      this

Court, the United States Court of Appeals for the Twelfth Circuit,

seeking a declaration that the Individual Mandate is unconstitutional

and   enjoinment      of    its    enforcement.        Without     consideration        of    the

merits, this court held that Petitioners lacked standing to challenge

the Act and that any such challenge is not ripe for review.                                   On

January     15,   2011,     this    Court    voted    to   rehear    this    case    en      banc

regarding the issues of Petitioners’ standing, ripeness of the case

for review, and the constitutionality of the Individual Mandate or

payment of a monetary penalty under the Commerce Clause.




                                               4
                         SUMMARY OF ARGUMENT

     At issue is whether this Court has subject matter jurisdiction to

decide the merits of this case and, if so, whether the Individual

Mandate provision of the Patient Protection and Affordable Care Act

exceeds Congress’ power under the Commerce Clause.

     As to the first issue this Court does have subject matter

jurisdiction pursuant to Article III of the Constitution because

Petitioners satisfy the requirements for standing and the case is ripe

for review. Petitioners have standing because the Act will cause them

an injury in fact that is concrete, particularized and actual (or

imminent), the injury is “fairly traceable” to the challenged conduct,

and a favorable outcome would redress the harm in a direct and

definite way. Although the Act has not yet taken effect its impact on

Petitioners is ongoing as they are forced to set aside money which

could be put to other use in preparation of the Act.

     The case is also ripe for review because it has passed the point

where this Court could render an intelligent and useful decision based

on final and concrete information. Moreover there is clearly more

involved here than a mere “abstract disagreement” and the effects of

the Act are not speculative. Not only is this Act presently causing

negative effects on Petitioners but, absent judicial interference, it

will inevitably go into effect and so this case is ripe for review.

     As to the second issue the Individual Mandate exceeds Congress’

power under the Commerce Clause. The farthest Congress’ commerce power

is to regulate “activities that substantially affect interstate

commerce,” Congress does not have the power to regulate inactivity.



                                  5
This attempt by Congress to coerce people into entering the health

care market is unprecedented and unconstitutional. To allow such an

extension would bestow upon Congress virtually unlimited power and it

would be difficult conceive of any activity it could not regulate

under the guise of the Commerce Clause.

       Not only does Congress lack the power to regulate inactivity, but

the causal connection between an individual’s decision not to purchase

health insurance and a substantial effect on interstate commerce is

based on inferences and is too attenuated to justify regulation. The

Supreme Court has made clear that such inference piling cannot satisfy

the requirements of the Commerce Clause and the activity sought to be

regulated must bear a substantial relation to commerce.

       Finally, the Individual Mandate cannot be justified as necessary

to implement a broader regulatory scheme. Petitioners here are outside

the broad regulatory scheme of the Act as they are neither engaged in

economics not activities. Moreover Congress’ enactment of the

Individual Mandate exceeds its enumerated powers and thus may not be

implemented even if the provision is deemed necessary to the overall

Act.

       For the aforementioned reasons, Petitioner respectfully requests

that this Court, en banc, affirm the District Court’s decision as to

standing and ripeness and reverse its decision as to the

constitutionality of the Individual Mandate.




                                    6
                                           ARGUMENT

       This Court, on rehearing this case en banc, should reverse the

previous     decision      of    the   United   States       Court       of     Appeals   for   the

Twelfth Circuit and hold that Petitioners have standing to bring this

case and that the case is ripe for review.                         Furthermore, this Court

should      hold    that   the     provisions        of    the     Patient       Protection     and

Affordable     Care    Act      (the   “Act”)       at    issue,       namely    the   Individual

Mandate, exceed Congressional power under the Commerce Clause and are

unconstitutional.


I. THIS COURT HAS PROPER SUBJECT MATTER JURISDICTION PURSUANT TO
   ARTICLE III OF THE CONSTITUTION BECAUSE PETITIONERS MEET THE
   REQUIREMENTS FOR STANDING AND THE CASE IS RIPE FOR REVIEW.

A. Petitioners sufficiently satisfy the Lujan test for standing.

       The question of standing is essentially whether the litigant is

entitled to have the court decide the merits of a case.                                   Warth v.

Seldin, 422 U.S. 490, 498 (1975).                    In the landmark case Marbury v.

Madison, Justice Marshall reinforces separation of powers and states

it is the province and duty of the Court to decide the rights of

individuals, whereas it falls within the purview of Congress and the

Executive      to     ensure      government         observance          of      the   laws     and

Constitution.         Marbury v. Madison, 5 U.S. 137, 170 (1803).                             For a

court to maintain subject matter jurisdiction, the plaintiff, as the

party invoking federal jurisdiction, bears the burden of presenting a

case   or    controversy        pursuant   to   Article          III    of    the   Constitution.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).




                                                7
        Moreover,          the       Supreme    Court     has     promulgated        three        elements

necessary        to    establish         standing:        first,       the    plaintiff      must    have

suffered an injury in fact, or an invasion of a legally protected

interest, which is “(a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical;” second, there must be a

causal connection between the injury and the challenged conduct – the

injury      must      be   “fairly       traceable”       to     the    challenged       conduct;      and

third, the likelihood must exist that a favorable outcome will redress

the injury, beyond mere speculation.                       Lujan, 504 U.S. at 560-561.                 The

plaintiff        must          set     forth     facts      clearly          and   specifically         to

sufficiently          satisfy         these    Article     III    requirements.           Whitmore      v.

Arkansas, 495 U.S. 149, 155 (1990).

        To be concrete and particularized, an injury must affect the

complainant           in   a     specific       and   personal         way.        Id.       In     Lujan,

respondents challenged the inapplicability of the Endangered Species

Act    to    certain        funded      activities        overseas,          maintaining     it     placed

endangered species at higher risk for extinction.                                  504 U.S. at 559,

562.     The Court of Appeals determined that respondents had standing,

and on remand, the district court granted respondents’ motion for

summary judgment.                Id. at 559.          The Court held that a mere special

interest in endangered animals overseas, absent concrete and imminent

plans       to   return          to    the     places     previously           visited,    fails       the

requirements of standing.                     Id. at 563.          Respondents’ allegations of

harm    were     merely        speculative,       rather       than     demonstrative        of     actual

harm.




                                                      8
     Similarly, in assessing whether a plaintiff meets the first prong

of the Lujan Test, imminence is not to be confused with certainty.

Shain v. Veneman, 376 F.3d 815, 818 (8th Cir. 2004).                                         In Shain,

plaintiffs sought declaratory and injunctive relief against the United

States   Department       of        Agriculture,            alleging       a    100-year     flood    was

certain to occur, and a treatment plant would increase the risk of

floodwater running off on their property.                                376 F.3d at 818.             The

Eighth   Circuit        ruled       that    to   satisfy           the     imminence        element    of

standing, an increased risk of harm must be substantially more than a

vague speculation of a distant future occurrence.                                    Id.   According to

the court, a mere speculation that a flood will occur in a 100-year

timeframe does not guarantee plaintiffs will be alive or in possession

of the property to suffer the injury.                        Id.     To satisfy the first prong

of the Lujan test, an injury must therefore be actual, imminent and

particular to the plaintiff.                See Warth, 422 U.S. at 501 (While there

is no precise definition of an injury in the context of standing, the

injury must be “distinct and palpable”); City of Los Angeles v. Lyons,

461 U.S. 95, 102 (1982) (plaintiff must show he is “immediately in

danger   of   sustaining            some    direct          injury    as       [a]    result”   of    the

challenged conduct).

     Furthermore, although standing requires that an injury be “fairly

traceable” to the challenged conduct, and relief from the injury will

likely follow from a favorable decision, the Constitutional standing

requirement        is   not     a    “mechanical             exercise”         founded     on   precise

definitions.        Allen v. Wright, 478 U.S. 737, 751 (1984).                                  Rather,

according     to    the   Supreme          Court,       a    determination            of   standing   is



                                                    9
allegation-specific and may be determined by assessing whether the

injury is too abstract, the line of causation is too attenuated, or

the prospect of relief upon a favorable ruling too speculative.                                   Id.

at 752.

     In Allen, parents of black public school children challenged the

IRS’ practice of providing tax-exemptions to racially discriminatory

private   schools,             claiming    lack    of     an    integrated   public       education

setting   as    the       injury.         Id.     at     757.     The    Court   held     that    any

connection between the IRS’ practices, whether lawful or not, and the

alleged harm was too tenuous to support a finding of standing.                                    Id.

According      to    the       Court,     from     the    IRS’    perspective,      the    harm   to

plaintiffs was the proximate result of third-party behavior lacking

the necessary causal connection between the IRS’ tax exemptions and

the resulting integration or lack thereof of the public schools.                                  Id.

at 758.

     A plaintiff has standing if the relief sought would redress the

alleged   injury          in    a   direct   and       definite    way,   rather    than    merely

speculatively.        Whitmore, 495 U.S. at 157.                   In Whitmore, an inmate on

death row sought appeal of a fellow death row inmate’s conviction,

alleging that if the case is not reviewed on appeal, the database

against which all death penalty cases are compared would be lacking

one entry.      Id. at 156.           The Court held that plaintiff lacked standing

because   his       own    conviction        and    sentence      were    already    reviewed      on

appeal and finalized.               Id. at 157.           Additionally, the Court reasoned

that even if he were to pursue another type of post-conviction relief,

it is not likely the entry of his fellow inmate’s case in the system



                                                    10
would    aid     in    determining      the     outcome    of     his   case.          Id.        Mere

speculation       and    conjecture,          without    more,     does   not        satisfy        the

requirements of standing.              Id.

        Thus, to satisfy the requirements of Article III standing, a

plaintiff      bears     the   burden    of     showing    an    injury     in      fact     that    is

concrete, particularized and imminent, a causal connection between the

injury and the challenged conduct, and the likelihood that a favorable

decision from the court will redress the injury.

        Under the elements laid out in Lujan, Petitioners Coulter and

Hannity    have       standing   to    bring     this    case.      First,       the     Individual

Mandate    and       shared    responsibility         payments    operate      as    a     financial

injury to Petitioners that is both concrete and imminent.                                Regardless

of which provision they choose to be subject to, Petitioners must

expend funds needlessly on either insurance coverage they do not want

or need or on total shared responsibility payments of at least $15,580

through the year 2020.           (R. at 3.)

        Unlike the facts of Lujan, the harm to Petitioners is neither

abstract       nor     indirect.        Petitioners        must     personally           bear     this

financial burden, and moreover, they must bear it immediately.                                      The

shared responsibility payments are financially the lesser of the two

burdens for Petitioners, and they must begin now in adjusting their

financial affairs and lifestyle to have enough funds to begin making

payments in just three years.                  Moreover, Petitioners must altogether

forego    using       those    funds    for    other    needs,     such   as     “discretionary

spending, charitable donations, or paying debts,” and in Petitioner

Coulter’s case, placing money in her children’s college fund.                                   (R. at



                                                 11
6, 8)     It is irrelevant that a change in Petitioners’ circumstances in

2014,    such     as    lower     income       or   health       insurance      coverage     through

employment, may render Petitioners unaffected by or in compliance with

the Act.     It is just as plausible that Petitioners circumstances will

not change, or may change in such a way that they will be responsible

for a larger sum of payments under the penalty provision of the Act.

For the purposes of standing, Petitioners harm is actual and imminent

because    they        must    prepare     now      for    the    large    sum    of   money    they

anticipate being responsible for in 2014.

        Second,    the         injury    is    fairly         traceable    to    the    challenged

provisions of the Act because the funds Petitioners must needlessly

spend, either on insurance coverage or shared responsibility payments,

stem    directly       from     the     operation        of   the   Act.    Unlike     Allen,    the

connection between the provisions and the harm to Petitioners are not

tenuous and owing to another cause, such as third-party action or

individual choice.             The present harm to Petitioners’ financial affairs

is a direct and proximate result of the Act passed into law in 2010.

        Finally,       a      ruling    that     the      Individual       Mandate     and    shared

responsibility payments are unconstitutional under the Commerce Clause

would fully eliminate the impending harm to Petitioners.

        Thus, because the harm to Petitioners is actual and imminent,

proximately caused by the challenged provisions of the Act, and would

be redressed by a favorable ruling from this Court, Petitioners have

standing to bring this case under Article III of the Constitution.




                                                    12
B.     This case is ripe for review because it presents a purely legal
       question and, absent judicial review, will cause a hardship to
       Petitioners.


        In addition to standing, Article III requires a claim to be

sufficiently mature with its issues clearly defined to constitute a

justiciable controversy.             Blanchette v. Conn. Gen. Ins. Corp., 419

U.S. 102, 138-139 (1974).            A claim is ripe for review when the state

of a dispute “has reached, but has not passed, the point when the

facts have developed sufficiently to permit an intelligent and useful

decision to be made.”         BLACK’S LAW DICTIONARY 626 (3rd pocket ed. 2001).

Ripeness    ensures    that    courts    have    final       and   concrete       information

needed to make a decision and that any judicial involvement in an

issue will authoritatively settle it.                 FPP § 8418, 33 Fed. Prac. &

Proc. Jud. Rev. § 8418 (1st Ed.)               The doctrine of ripeness serves to

prevent courts from adjudicating issues prematurely, thus entangling

themselves in “abstract disagreements.”               Abbott Labs. v. Gardner, 387

U.S. 136, 148 (1967).

        A determination of ripeness involves evaluating “both the fitness

of issues for judicial decision and the hardship to the parties of

withholding    court    consideration.”         Id.     at   149.        In    Abbott   Labs.,

Congress prescribed that drug manufacturers list the generic name of

the drug prominently alongside the drug’s trade name.                            Id. at 138.

Drug    manufacturers       brought    suit,    claiming       agency         regulations   to

enforce the Act were based on a misinterpretation of Congressional

intent.      Id.      The    Third    Circuit    held    that       no   “actual     case   or

controversy” existed, and on certiorari, the Supreme Court made a

determination of ripeness.           Id. at 139.


                                           13
       The Court ruled that the issue was purely legal and therefore fit

for judicial determination.                  Id. at 149.         Moreover, the regulations

had    a   “direct     and      immediate”     impact     on     plaintiff’s        manufacturing

operations.       Id. at 152.           First, the issue before the Court did not

require     any    further       factual      developments;           it   solely    required      a

determination of whether regulations were proper.                           Abbott Labs., 387

U.S. at 149.         Second, without judicial intervention, plaintiffs would

have to either spend millions of dollars altering their labels and

promotional materials on a hunch that the regulations were improper,

or ignore the regulations, risking civil and criminal sanctions.                                 Id.

at 152.        Because the issue was fully developed as presented to the

Court and posed an immediate hardship to the plaintiffs, the Court

found the issue ripe for review.

       Even     when     a    case   presents       a   purely    legal     question,      it    may

nonetheless       lack       ripeness   if    the   effects      of    a   challenged      act   are

merely speculative or the record of a case is incomplete.                                   Toilet

Goods Ass’n, Inc. v. Gardner, 387 U.S. 158, 164 (1967).                                In Toilet

Goods,     a    cosmetics        manufacturing          company       challenged      an    agency

regulation granting the Commissioner of Food and Drugs discretion to

inspect ingredients and additives used for coloring products.                               Id. at

161.

       The Supreme Court held that the case was not ripe for review

absent concrete harm; a company could simply refuse inspection and

challenge the regulation in an administrative proceeding.                            Id. at 165.

Moreover, according to the Court, an administrative proceeding could

best flesh out the rationale behind the regulation and the factual



                                                14
bases that implicate it.                Id. at 166.            Because the regulation did not

have     an     adverse        effect        on     the     day-to-day        operations       of     the

manufacturers          and    the     case        could   be    further       developed      by     other

proceedings, the case was not ripe for review.

       Unlike the requirements for standing, harm need not be imminent

to find a controversy ripe for review.                          Blanchette, 419 U.S. at 143.

Rather,       if   a   statute        will    inevitably        go     into    effect       against    an

individual, it is inconsequential to a determination of justiciability

that there will be a time delay before the statute goes into effect.

Id.;   See      also    Pennsylvania          v.     West      Virginia,      262     U.S.    553,    593

(1925)(“ One does not have to await the consummation of threatened

injury     to      obtain     preventive           relief.     If     the    injury    is    certainly

impending, that is enough.”)

       The instant case mirrors Abbott Labs in that no further factual

development is necessary to clarify the question before this Court.

The portions of the Act in question were already passed into law and,

based on Petitioners’ present financial conditions, are certain to go

into effect against them.

       Additionally,               absent     judicial          determination          as     to      the

constitutionality of the portions of the Act in question, Petitioners

face   a   tangible          and    concrete       financial        burden    in    being    forced    to

rearrange their financial affairs to meet the Individual Mandate or

shared responsibility payments.                     (R. at 3.)

       Unlike Toilet Goods, the harm to Petitioners is not speculative.

First,     Coulter       and       Hannity        brought      suit    because       they    would     be

presently forced to alter their financial affairs and forego other



                                                     15
financial opportunities to meet the burdensome financial obligations

under the Act.    (R. at 6, 9).        Second, it is mere speculation that

Petitioners may not be subject to payments under the Act if, for

example, their employment provides them with insurance or if their

income falls below the Act’s threshold requirement. The opposite is

equally plausible and speculative: their income level may increase,

making   their   obligations   under     the     Act   even    more    burdensome.

Speculation as to whether Petitioners will be subject                 to payments

under the Act in 2014 distract from and is irrelevant to the issue at

hand, which is that presently, Petitioners’ finances are certainly and

detrimentally affected by the impending Act. Thus, the facts of this

case give rise to a “case or controversy” ripe for review pursuant to

Article III of the Constitution.


II. THE INDIVIDUAL MANDATE IS NOT A VALID EXERCISE OF CONGRESS’ POWER
    UNDER THE COMMERCE CLAUSE.

     The   Commerce   Clause   grants       Congress   the    power   to   regulate

“Commerce with foreign Nations, and among the several States, and with

the Indian Tribes.”    U.S. Const. Art. I, § 8, Cl. 3.            Modern Supreme

Court cases have generally demonstrated a rather expansive view of

Congressional power under the Commerce Clause, but the Court has made

clear that even the modern-era view is subject to “outer limits.”

United States v. Lopez, 514 U.S. 549, 557 (1995).              The Supreme Court

has warned that the scope of Congressional commerce power “must be

considered in light of our dual system of government” and does not

include activities with “effects upon interstate commerce so indirect

and remote that to embrace them. . . would effectually obliterate the



                                       16
distinction between what is national and what is local and create a

completely centralized government.” NLRB v. Jones & Laughlin Steel

Corp., 301 U.S. 1, 37 (1937).

        Congressional power under the Commerce Clause cannot be viewed in

isolation, but must be taken in conjunction with the Necessary and

Proper Clause, which grants Congress “broad authority to pass laws in

furtherance of its constitutionally-enumerated powers.”                   U.S. Const.

art. I, § 8, cl. 18; see also Commonwealth ex rel. Cuccinelli v.

Sebelius, 3:10CV188-HEH, 2010 WL 5059718, at *19 (E.D. Va. Dec. 13,

2010.


A.   The Individual Mandate is unconstitutional because the Commerce
     Clause does not grant Congress the power to regulate inactivity.

        The Commerce Clause grants Congress the power only to regulate

activity affecting interstate commerce, and thus does not extend to an

individual’s decision not to participate in the health care market.

The Supreme Court has identified three categories of activity that

Congress    may    regulate   under   the   Commerce    Clause:    the   “use   of   the

channels of interstate commerce,” the “instrumentalities of interstate

commerce,     or    persons    or     things     in   interstate    commerce,”       and

“activities that substantially affect interstate commerce.” Lopez, 514

U.S. at 558-59. Only the third category is implicated in this case.

(R. at 28.)

        While Supreme Court precedent with regard to the third prong of

the Lopez test is admittedly broad, Congress’ attempt to regulate

inactivity is novel and the Court has never come close to extending

its power to regulate interstate commerce to the extent sought here.


                                            17
A look at even the broadest interpretations of Congress’ commerce

power clearly shows that the scope of this power has always been

limited to activities.

        In Gonzales v. Raich, 545 U.S. 1, 22 (2005), the Supreme Court

held    that     Congress    could       regulate      the    intrastate      production        of

marijuana for personal consumption under the commerce power.                                 The

Court reasoned that, even though the activity was not “commercial”, it

could    still    be   regulated         because     there    is    an    “established.     .   .

interstate       market”     for        marijuana     and     such       production   “has      a

substantial effect on supply and demand in the national market for

that commodity.”        Id. at 18-19.            Moreover, respondents conceded that

the statutory scheme was valid and challenged only its individual

application as to themselves.                 Id. at 23.          The Court stated that if

the    overall    regulation       is    a   valid   exercise       of   federal   power,    the

courts cannot “excise. . . individual instances’ of the class.”                        Id.

        Almost sixty years before the decision in Gonzales, the Supreme

Court held that Congress’ commerce power justified the regulation of

wheat produced solely for home consumption.                        Wickard v. Filburn, 317

U.S. 111, 133 (1942).         The Court stated that Congress had the power to

regulate such intrastate, non-commercial activity because wheat grown

for home consumption would have “a substantial influence on price and

market conditions.”         Id. at 128. Not only did the Court find that such

home-grown wheat had a substantial effect on interstate commerce, but

excluding such wheat from regulation would also frustrate Congress’

goal    of     controlling     wheat         production      to    prevent    surpluses      and




                                                18
shortages which cause national wheat prices to fluctuate.                             Id. at

115.

       The differences between the case at hand and the situations in

Gonzales and Wickard are striking and highlight the fact that the

expansion of the commerce power sought here by the Respondents is

unprecedented.           In both Gonzales and Wickard, the defendants were

actively engaged in an activity, albeit a non-commercial one, which

had    a     measurable    impact      on   interstate      commerce.       In    contrast,

Petitioners here have made the affirmative decision not to engage in

the health care market and as such there is no activity to regulate.

(R.    at    5,   7.)     In   addition,     unlike   the    defendants      in   Gonzales,

Petitioners       here    do   not     merely    challenge    the    Individual    Mandate

provision only as applied to themselves, but contend that the entire

provision is facially unconstitutional.               (R. at 3)

       In Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241,

262 (1964), the Supreme Court upheld Congressional power to prohibit

racial discrimination in intrastate public accommodations as a means

of eliminating the effects of discrimination on interstate travel.

The Court stated that the “determinative test” of whether Congress

validly exercised its commerce power was “whether the activity sought

to be regulated is commerce which concerns more States than one and

has a real and substantial relation to the national interest.”                        Id. at

255.       The Court found the regulation valid because such discriminatory

practices, which were occurring nationwide, had “a qualitative as well

as    quantitative       effect   on    interstate    travel”       by   minorities    which

resulted in decreased interstate travel.               Id. at 253.



                                                19
     Heart of Atlanta has been used by supporters of the Individual

Mandate, including the Respondents and the district court below, as an

example of the Supreme Court regulating an individual’s decision not

to engage in transactions with others. (R. at 32.); See Thomas More

Law Center v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. 2010).                 However,

reliance on this case for that assertion is misplaced and completely

ignores the fact that the appellant in Heart of Atlanta was already

engaged in the interstate market at issue.                Thus the situation in this

case, which involves forcing individuals to participate in the health

insurance market or pay a penalty, is completely distinct from that in

Heart of Atlanta.       That case merely stated that those who voluntarily

decide   to    participate   in    a   market    cannot    undertake   discriminatory

practices which have a measurable impact on interstate commerce.                   The

Individual Mandate at issue here purports to regulate individuals who

are in no way participants in the health care market, based only on “a

person’s      mere   existence    within   our   Nation’s     boundaries   under   the

auspices of the Commerce Clause.”           (R. at 26.)       Thus the appellant in

Heart of Atlanta had the choice to discontinue his motel business and

avoid the regulation, whereas the Individual Mandate cannot be avoided

as such because there is no activity to discontinue, you must purchase

insurance or pay the penalty.

     As outlined above, even the most expansive views of Congressional

power under the Commerce Clause have reached only as far as regulating

an individual’s “activity” which affects interstate commerce.                 Indeed,

nothing in either the text of the Constitution, the spirit of the

Commerce Clause, or the Supreme Court’s interpretation of either gives



                                           20
Congress the power to regulate a person’s decision not to participate

in the market.         Thus, the Individual Mandate exceeds Congress’ power

under    the    Commerce     Clause    and    should    be   found    unconstitutional.

However, even assuming this Court finds that Congress does have the

power to regulate inactivity, the Individual Mandate should still be

found unconstitutional because an individual’s decision not to carry

health insurance is “the type of inferential chain prohibited by Lopez

and its progeny.” (R. at 30.)


B.     Even assuming Congress’ commerce power does reach inactivity, the
       Individual Mandate is still unconstitutional because the link
       between the decision not to purchase health insurance does not
       bear a substantial relation to commerce.

        Arguments such as the one posited by Respondents are the type of

inferential, attenuated reasoning which has been expressly proscribed

by the Supreme Court.            While Congress undoubtedly has the power to

regulate even trivial intrastate activity, so long as the aggregated

impact has a substantial affect on interstate commerce, the Supreme

Court has made clear that this power is “necessarily one of degree.”

Lopez, 514 U.S. at 566 (quoting Jones & Laughlin Steel, 301 U.S. at

37).     The commerce power will not be upheld where its justification

requires the court “to pile inference upon inference in a manner that

would bid fair to convert congressional authority under the Commerce

Clause to a general police power of the sort retained by the States.”

Lopez,    514   U.S.    at   567.     Upholding    regulations       based   on   such    an

inferential     chain    would      allow    Congress   to   regulate    virtually       any

activity, and such a result has been found untenable by the Supreme




                                              21
Court.    Id.    at    564;     United    States    v.   Morrison,   529       U.S.   598,   613

(2000).

     In Lopez, the Supreme Court held that the Commerce Clause did not

give Congress the power to regulate the possession of handguns in a

school zone.          Lopez, 514 U.S. at 568.            The Court found that the non-

commercial activity of carrying a handgun was beyond the reach of the

Commerce Clause, despite the government’s evidence that violent crime

has a substantial effect on interstate commerce. Id. at 563-64.                              It

stated that if the government’s reasoning was adopted “Congress could

regulate    any       activity    that    it   found     was   related    to    the    economic

productivity of individual citizens,” and that it would be “difficult

to perceive any limitation on federal power, even in areas...where

States have historically been sovereign.”                  Id. at 564.

     In Morrison, the Supreme Court held that Congress could not enact

regulations directed at gender-motivated violence under the Commerce

Clause.    529    U.S.     at    627.    The   Court     again   stated    that       following

petitioners’      “but-for       causal    chain    from   the   initial       occurrence    of

violent crime to every attenuated effect upon interstate commerce”

would allow Congress to regulate virtually any activity. Id. at 615.

The Court held that Congress did not have the power to regulate such

noneconomic activity “based solely on that conduct’s aggregate effect

on interstate commerce.” Id. at 617.

     The situation presented in this case is extremely similar to

those presented in Lopez and Morrison and presents many of the same

dangers. Here, Respondents have actually gone a step further than in

Lopez and Morrison and attempt to regulate non-economic inactivity.



                                               22
(R. at 11.) This type of regulation is clearly outside the bounds of

the Commerce Clause as interpreted in Lopez and Morrison, and many of

the fears expressed in those opinions would come to fruition if the

Individual Mandate is found constitutional. Here to there would be

virtually no bounds to Congress’ commerce power. In fact, it would be

worse than the fears expressed in those cases (i.e. Congress having

the power to regulate criminal conduct and family law), as Congress

would    be   given    the    power    to     coerce     people      into    engaging       in    a

particular transaction based merely on a finding that their decision

not to engage in such a transaction, taken in the aggregate, has a

substantial     effect       on    interstate       commerce.       This    power    would       be

substantial,    especially         given    Supreme    Court       precedent     adopting     the

view that even the most inconsequential intrastate activity can have a

substantial    effect    on       interstate       commerce.    Bestowing        Congress    with

such expansive power is contrary to the notions of state sovereignty

and co-equal branches of government.

        Moreover,     Respondents’         reasoning    as     to    how    an    individual’s

decision not to purchase insurance substantially affects interstate

commerce requires the kind of inference piling prohibited by Lopez and

Morrison.     Respondents argue that decisions to pay for health care out

of   pocket   creates    increased         costs    which    are    then    passed   to     those

actively involved in the market, such as health care providers and the

insured.      (R. at 31.)          However, to reach this conclusion one must

first wade through several inferences.                   The first inference required

is that everyone will get sick. The next inference is that everyone

who gets sick will then involve themselves in the health care system,



                                               23
rather than foregoing treatment or seeking alternative therapies, like

Mr. Hannity chooses to do.              (R. at 6.)          Finally, we must infer that

every    uninsured      individual      who   receives       medical    treatment     will    be

unable or unwilling to pay.             (R. at 31.)         This chain of inferences is

analogous to the inference in Lopez that guns lead to violent crimes,

violent crimes discourage travel to that area, and decreased travel

results in an adverse effect on interstate commerce.                        Just as in Lopez

and   Morrison,       the   inferential       chain    is   too   attenuated     to   justify

upholding the regulation.

        In   light     of   the   aforementioned       facts      it   is   clear   that     the

Individual Mandate exceeds Congress’ power under the Commerce Clause.

Thus, Petitioners respectfully request that this Court, en banc, find

the Individual Mandate provision unconstitutional.


C.    Since   the  Individual  Mandate   does  not   regulate  “economic
      activity”, it cannot be upheld as necessary to implement a broader
      regulatory scheme.

        Under the Commerce Clause, Congressional authority is limited to

regulate intrastate, non-economic matters that form “an essential part

of a larger regulation of economic activity, in which the regulatory

scheme       could    be    undercut     unless       the    intrastate      activity      were

regulated.”          Gonzales, 545 U.S. 1, 24-25 (2005) (quoting Lopez, 514

U.S. 549, 561 (1995)).            In this case, Petitioners are outside of the

broad regulatory scheme sought by the Act, as they are neither engaged

in “economics” nor “activities”.                Indeed, this dramatic expansion of

Commerce      Clause    power     is   unprecedented        and   unconstitutional.          The

Individual Mandate exceeds the settled regulatory boundaries of the




                                               24
Commerce      Clause       by    compelling    legal         citizens   who     are   purposefully

inactive and penalizing them for non-compliance. See Commonwealth ex

rel. Cuccinelli v. Sebelius, 3:10CV188-HEH, 2010 WL 5059718, at *12

(E.D. Va. Dec. 13, 2010).


       The Supreme Court has continuously held that the Commerce Clause

permits      congressional           regulation         of    three     categories:      (1)     the

 Sdbf7d5d2e0f611
               channels of interstate commerce; (2) the instrumentalities

of interstate commerce, and persons or things in interstate commerce;

and (3) activities that “substantially affect” interstate commerce.

Perez v. United States, 402 U.S. 146, 150 (1971); see Morrison, 529

U.S. 598, 608-609 (2000); Lopez, 514 U.S. 549, 558-559 (1995); Hodel

v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264,

276-277 (1981).             The first two categories are plainly obvious, since

they   compose        the       essentials    of    interstate        commerce    itself.       See

Gibbons v. Ogden, 9 Wheat. 1, 189-190 (1824).                           This third category is

less obvious, however, when contemplating whether it includes local,

non-commercial activity, regardless of commercial effect, because it

is an integral part of a broader statutory scheme that permissibly

regulates interstate commerce.


       Both        Lopez    and    Morrison,       invalidated        federal    statutes      which

intended to regulate local, non-commercial activity believed to affect

interstate commerce.               Lopez, 514 U.S. 549; Morrison, 529 U.S. 598.

The Court in Lopez confronted the Gun-Free School Zone Act of 1990,

which criminalized possession of a gun within a statutorily defined

school zone.          Lopez, 514 U.S. at 551.                The Court correctly understood


                                                   25
that    the    piling    of    inferences      would    obliterate     the     Constitution's

enumeration of powers.               Id. at 567.        The Court later held that the

Commerce Clause did not empower Congress to regulate non-economic,

violent criminal conduct.             Morrison, 529 U.S. at 614, 617.


        The Court in Gonzales demonstrates a troublesome ambiguity in the

application of the third prong of the Commerce Clause.                            Gonzales, 545

U.S. 1.        Indeed, Gonzales was the first case in which the Court,

unlike in Lopez or Morrison, upheld the regulation of intrastate, non-

commercial activity under the Commerce Clause.                      Id. at 23.       Relying on

Wickard, the Court held that the Commerce Clause allowed Congress to

permissibly regulate non-commercial, home-grown, medicinal marijuana

because of its potential impact upon the illegal interstate commercial

market.       Id. at 19; see Wickard v. Filburn, 317 U.S. 111 (1942).


        The incongruity and inconsistency                 of the Supreme           Court’s own

jurisprudence led to an interpretive struggle of the third prong of

the    Commerce       Clause    in    the    majority    and    concurring         opinions   of

Gonzales.          One interpretation of the Commerce Clause followed the

holdings      in     Lopez   and   Morrison,     prohibiting        federal    regulation      to

reach     non-economic,        local      activity     even    if    that     activity     would

substantially affect interstate commerce in aggregation.                              Gonzales,

545 U.S. at 37.              The other interpretation of the Commerce Clause,

following       the    holdings      of     Wickard    and    Gonzales,       permitting      the

regulation      of    wholly    private,      non-commercial        activity      even   in   the

absence of any substantial effect.                  Id. at 19.       The Court in Gonzales

attempted       to     reconcile      the    differences       between      the     conflicting



                                               26
jurisprudence by distinguishing between economic activities and non-

economic activities.            Id. at 37.        The legislation at issue in Lopez

and   Morrison        failed    to   establish        any     economic       nexus,   while    the

regulations       in    Wickard      and   Gonzales          were    intrinsically         economic

activities.      Id. at 23, 25.


       Supreme        Court    jurisprudence          establishes         that    “Congress    may

regulate    even       noneconomic     local     activity       if    that      regulation    is   a

necessary part of a more general regulation of interstate commerce.”

Gonzales, 545 U.S. at 37; see also Lopez, 514 U.S. at 561; Morrison,

529 U.S. at 610.          It follows that this Commerce Clause power does not

cover regulation of inactivity, omission, or an individual’s refusal

to engage in commercial transactions.                   If Gonzales were interpreted so

broadly as to permit regulation of mere inactivity, Congress would

have unlimited authority, indistinguishable from police power, under

the   Commerce        Clause   enforce     its     broad      regulatory         schemes    against

citizens.        The Court has explicitly rejected this unchecked power,

cautioning that “the Constitution. . .                        withhold[s] from Congress a

plenary police power that would authorize enactment of every type of

legislation.”         Lopez, 514 U.S. at 566.

       It   is    precisely      for   that      reason      that     Gonzales      and    previous

Supreme Court precedents fail to justify the Individual Mandate.                               The

Supreme Court has never extended Commerce Clause powers to compel an

individual       to    involuntarily       enter       the    stream       of    commerce.         As

uninsured citizens by their own choice, Petitioners are not engaged in

any economic activity that impacts interstate commerce.                             Deciding not

to    purchase        health    insurance      does       not       fit   the     definition       of


                                                 27
“economics”,          which      involves       the        production,         distribution,         or

consumption       of    a     single     product.           WEBSTER'S     THIRD    NEW    INTERNATIONAL

DICTIONARY 720 (1966).           Given that individual citizens have the right to

refuse healthcare in the form of life support, it follows that they

also   have      the     right     to    refuse       to     buy     unwanted        insurance      for

healthcare.       Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261 (1990).

It is undeniably clear that the regulatory scheme of the Act seeks to

cover more than just economic activity of the insurance industry.

Rather, the act fundamentally deprives Petitioners of their liberty to

choose to participate. Commonwealth ex rel. Cuccinelli v. Sebelius,

3:10CV188-HEH, 2010 WL 5059718, at *19 (E.D. Va. Dec. 13, 2010).

       It   is     undisputed         that    Congress       possesses         the    authority     to

regulate an aggregated class of activities that has a substantial and

direct effect on interstate commerce.                      Gonzales, 545 U.S. at 22.               This

authority even encompasses non-economic activity closely related to

the intended market.              Hoffman v. Hunt, 126 F.3d 575, 587-88 (4th

Cir.1997).       However these broad regulatory schemes must be initiated

by self-initiated action or affirmative behavior.                              Even the broadest

judicial interpretations of the Commerce Clause do not empower the

regulation       of    inactivity.            Instead,       Supreme       Court      jurisprudence

strictly      limits        Congress’        authority       to     regulation       of     “economic

activity”     or       non-economic          activity       which    is     necessary        for   the

regulatory       scheme.         By     imposing      the     Individual          Mandate    penalty,

Congress    is     utilizing      the     Commerce       Clause      as   an      unenumerated      and

unlimited police power.                 It is for the aforementioned reasons that

Petitioner respectfully requests this Court, en banc, to find that



                                                 28
Section   1501    of   the   Patient   Protection   and    Affordable    Care     Act,

specifically     the   Minimum   Essential    Coverage    Provision,    exceeds    the

constitutional boundaries of congressional regulatory power.

                                    CONCLUSION

     Our system of government is dependent upon co-equal branches of

government and limitation of power to those enumerated in the

Constitution. To allow Congress to expand its power so far beyond what

was originally intended by the Framers would have a devastating impact

on the principles this country was founded upon and would grant

Congress practically unfettered power to control every aspect of the

lives of American citizens, effectively eliminating any notion of

state sovereignty.

     This expansion of power is untenable and to avoid it a line must

be drawn to curb Congress’ already extremely expansive commerce power.

Nothing in the Commerce Clause grants Congress the power to regulate

an individual’s decision not to participate in the interstate market.

Moreover there is nothing in the Supreme Court’s precedent

interpreting Congress’ commerce power which allows Congress to

regulate non-economic inactivity. There is nothing to support

Congress’ power to implement the Individual Mandate under the Commerce

Clause except strained reasoning and clever wordplay.

     For the aforementioned reasons, Petitioners respectfully request

that this Court, en banc, find the Individual Mandate provision of the

Patient Protection and Affordable Care Act unconstitutional.




                                         29
                               APPENDIX

U.S. Const. art. I, § 8, cl. 3 [in pertinent part]
     The Congress shall have power “[t]o regulate Commerce with
foreign Nations, and among the several States, and with the Indian
Tribes”

U.S. Const. art. I, § 8, cl. 18 [in pertinent part]
     The Congress shall have power “[t]o make all Laws which shall be
necessary and proper for carrying into Execution the foregoing Powers,
and all other Powers vested by this Constitution in the Government of
the United States...”

U.S. Const. art. III, § 2, cl. 1 [in pertinent part]
     “The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution . . . and to Controversies to which
the United States shall be a Party. . .”

Pub.L. 111−148 § 1501, 124 Stat. 119 (2010). REQUIREMENT TO MAINTAIN
MINIMUM ESSENTIAL COVERAGE [in pertinent part]
(a) Findings- Congress makes the following findings:
(1) IN GENERAL- The individual responsibility requirement provided for
in this section (in this subsection referred to as the `requirement')
is commercial and economic in nature, and substantially affects
interstate commerce, as a result of the effects described in paragraph
(2) EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE COMMERCE- The
effects described in this paragraph are the following:
(A) The requirement regulates activity that is commercial and economic
in nature: economic and financial decisions about how and when health
care is paid for, and when health insurance is purchased.
(B) Health insurance and health care services are a significant part
of the national economy. National health spending is projected to
increase from $2,500,000,000,000, or 17.6 percent of the economy, in
2009 to $4,700,000,000,000 in 2019. Private health insurance spending
is projected to be $854,000,000,000 in 2009, and pays for medical
supplies, drugs, and equipment that are shipped in interstate
commerce. Since most health insurance is sold by national or regional
health insurance companies, health insurance is sold in interstate
commerce and claims payments flow through interstate commerce.
(C) The requirement, together with the other provisions of this Act,
will add millions of new consumers to the health insurance market,
increasing the supply of, and demand for, health care services.
According to the Congressional Budget Office, the requirement will
increase the number and share of Americans who are insured.
(D) The requirement achieves near-universal coverage by building upon
and strengthening the private employer-based health insurance system,
which covers 176,000,000 Americans nationwide. In Massachusetts, a
similar requirement has strengthened private employer-based coverage:
despite the economic downturn, the number of workers offered employer-
based coverage has actually increased.


                                  30
(E) Half of all personal bankruptcies are caused in part by medical
expenses. By significantly increasing health insurance coverage, the
requirement, together with the other provisions of this Act, will
improve financial security for families.
(F) Under the Employee Retirement Income Security Act of 1974 (29
U.S.C. 1001 et seq.), the Public Health Service Act (42 U.S.C. 201 et
seq.), and this Act, the Federal Government has a significant role in
regulating health insurance which is in interstate commerce.
(G) Under sections 2704 and 2705 of the Public Health Service Act (as
added by section 1201 of this Act), if there were no requirement, many
individuals would wait to purchase health insurance until they needed
care. By significantly increasing health insurance coverage, the
requirement, together with the other provisions of this Act, will
minimize this adverse selection and broaden the health insurance risk
pool to include healthy individuals, which will lower health insurance
premiums. The requirement is essential to creating effective health
insurance markets in which improved health insurance products that are
guaranteed issue and do not exclude coverage of pre-existing
conditions can be sold.
(H) Administrative costs for private health insurance, which were
$90,000,000,000 in 2006, are 26 to 30 percent of premiums in the
current individual and small group markets. By significantly
increasing health insurance coverage and the size of purchasing pools,
which will increase economies of scale, the requirement, together with
the other provisions of this Act, will significantly reduce
administrative costs and lower health insurance premiums. The
requirement is essential to creating effective health insurance
markets that do not require underwriting and eliminate its associated
administrative costs.
(3) SUPREME COURT RULING- In United States v. South-Eastern
Underwriters Association (322 U.S. 533 (1944)), the Supreme Court of
the United States ruled that insurance is interstate commerce subject
to Federal regulation.




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