February 13, 2012

CFJ Briefs in ObamaCare & Arizona cases

Today, the Committee for Justice submitted an amicus (friend of the court) brief in each of the two biggest cases before the Supreme Court this term, the ObamaCare case (HHS v. Florida) and the Arizona immigration case (U.S. v. Arizona).

In the Arizona case, CFJ joins with its co-amici – the Center for Constitutional Jurisprudence, the Individual Rights Foundation, Congressmen Ed Royce, Ted Poe and Tom McClintock, and Indiana State Senator Mike Delph – to urge the Supreme Court to uphold Arizona’s immigration law, SB 1070, against the Obama Administration’s claim that it is preempted by federal law.

Our brief explains that the Administration “has presented the startling and unsupported argument that the President has unilateral authority to preempt state enactments that may cause conflict with the President’s enforcement priorities” – in this case, the President’s decision to under-enforce the immigration laws enacted by Congress. To the contrary, the Supreme Court “has consistently held that the Constitution assigns plenary power over immigration policy to Congress, not the President.”

Our brief reminds the Court that it “has maintained a presumption against preemption when analyzing preemption challenges pertaining to an area of law traditionally occupied by the states.” One such area is the states’ “broad right to protect the public health, safety and welfare of their citizens,” which is precisely what SB 1070 addresses. And to the extent that it addresses immigration policy, the “Arizona law expressly follows congressional policy—and indeed mirrors the provisions of the federal law.”

We also remind the Court that much more than immigration policy is at stake in this case – specifically, “Arizona’s SB 1070 must be upheld if state sovereignty is not to be undermined.” We conclude that

“In order to preserve the functions of our federalist system identified by this Court …, this claim of Presidential power to override sovereign police powers of state governments must be rejected.”

The Congressmen on our amicus brief are from states – Texas and California – that have been severely impacted by the federal policy of under-enforcing U.S. immigration law, the very policy that the Obama Administration now argues preempts Arizona’s attempts to enforce U.S. law. The state senator on the brief, Mike Delph, authored a law that addresses the illegal immigration problem in Indiana.

Regarding the Committee for Justice’s interest in the case, the brief explains that “the system of federalism established by the United States Constitution, including the twin principles of enumerated federal powers and protection of state sovereignty” is central to the rule of law and thus to CFJ’s mission. “Both of these principles will be weakened if the decision below is allowed to stand.”

The same principles are at stake in the ObamaCare case, in which CFJ joins with its co-amici – a bipartisan group of 333 legislators from 17 states and 13 think tanks and public interest law firms dedicated to advancing individual liberty, including the Cato Institute, Pacific Legal Foundation, and Competitive Enterprise Institute – to urge the Supreme Court to strike down the individual insurance mandate as unconstitutional.

Our brief reminds the Court that

“[The Constitution] gives Congress only certain legislative powers … and the Tenth Amendment emphasizes that all other powers remain with those who breathed life into the new government in the first place: the sovereign ‘people of the United States.’”

Specifically, we argue that “there is no constitutional warrant for Congress to force Americans to enter the marketplace to buy a particular good or service” – in this case, health insurance. The Constitution’s Commerce Clause does not allow Congress to “compel someone to engage in commerce, even if it purports to do so as part of a broader regulatory scheme.”

Because “what Congress is trying to do here is literally unprecedented, as recognized even by the lower courts that ruled for the government,” the implications of upholding ObamaCare are far-reaching and disturbing. Our brief explains that

“Upholding the power to impose [such mandates] ‘would fundamentally alter the relationship of the federal government to the states and the people; nobody would ever again be able to claim plausibly that the Constitution limits federal power.’ (quoting Ilya Shapiro) … Unless this Court wishes to make federal power boundless — a result contrary to the Constitution’s text, structure, and history — it should affirm the judgment below [that the individual mandate is unconstitutional].”


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