NO. 11-398 In the In the In the In the In the Supreme Court of the United States Supreme Court of the United States Supreme Court of the United States Supreme Court of the United States Supreme Court of the United States UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., Petitioners, v. STATE OF FLORIDA, ET AL., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit BRIEF OF CONSTITUTIONAL LAW AND ECONOMICS PROFESSORS AS AMICI CURIAE IN SUPPORT OF PETITIONERS (MINIMUM COVERAGE PROVISION) Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 January 12, 2012 WILSON R. HUHN Counsel of Record 29475 BRYCE ROAD PEPPER PIKE, OH 44124 (216) 789-0507 [email protected]Counsel for Amici Curiae
Transcript
NO. 11-398
In theIn theIn theIn theIn the
Supreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United StatesSupreme Court of the United States
UNITED STATES DEPARTMENT OF HEALTHAND HUMAN SERVICES, ET AL.,
Petitioners,v.
STATE OF FLORIDA, ET AL., Respondents.
On Writ of Certiorari to the United StatesCourt of Appeals for the Eleventh Circuit
BRIEF OF CONSTITUTIONAL LAWAND ECONOMICS PROFESSORS AS
AMICI CURIAE IN SUPPORT OF PETITIONERS(MINIMUM COVERAGE PROVISION)
I. THE CONSTITUTION DOES NOTEMBODY ANY PARTICULAR ECONOMICTHEORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. IN A BROAD RANGE OF AREAS OFCONSTITUTIONAL LAW, THE SUPREMECOURT HAS RULED THAT INREVIEWING THE VALIDITY OFECONOMIC LEGISLATION THE COURTSMUST DEFER TO LEGISLATIVEJUDGMENT, TO THE EXTENT THATT H I S P R I N C I P L E M U S T B ECONSIDERED TO BE AN ASPECT OFTHE SEPARATION OF POWERS. . . . . . . . 7
III.ECONOMIC ANALYSIS IS SUITED TOTHE LEGISLATIVE DUTY TO DEVELOPPUBLIC POLICY BUT IS NOTCOMPATIBLE WITH THE JUDICIALDUTY TO INTERPRET THE MEANING OFTHE CONSTITUTION.. . . . . . . . . . . . . . . . 11
Mass. St. 2006, c. 58 (An Act Providing Access to Affordable, Quality,Accountable Health Care).. . . . . . . . . . . . . . . . . . . 13
Other Authorities
Brief Amici Curiae of Economic Scholars in Support of Defendants-Appellees, Liberty University, Inc., v. Geithner. . . . . . . . . . . . 15
Congressional Budget Office, Letter to Nancy Pelosi, Speaker, U.S. House of Representatives, Preliminary Estimate of the Effects of the Insurance Coverage Provisions of the Reconciliation Legislation. . . . . . 14
Davis, Karen, et al., Mirror, Mirror on theWall: An International Update on the Comparative Performance of American Health Care. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Joint Tax Commission, JCT report on House Reconciliation Bill H.R. 4872 (Report JCX-16-10), (March 18, 2010). . . . . . . . . . 14
Kaiser Family Foundation, Employer Health Benefits Annual Survey.. . . . . . . . . . . . . . . 15
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Pearson, Mark, Written Statement to Special Senate Commission on Aging: Disparities in health expenditure across OECD countries: Why does the United States spend so much more than other countries?. . . . . . . . . . . . . . . . . . . . . . . . 15
Rowland, Diane, Testimony Before the U.S. Senate Committee on Finance, Medicaid and Health Reform. . . . . . . . . . . . . . . . . 15
World Health Organization, World Health Report 2000. . . . . . . . . . . . . . . . . . . 14
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INTEREST OF AMICI CURIAE1
Each of the amici curiae is a professor of economicswho has specialized in the area of health care or aprofessor of law who has studied, taught, published, orpracticed in the area of Constitutional Law.
Amici submit this brief to articulate and support aset of principles at the intersection of constitutionallaw and economics: namely, that the Constitution doesnot embody a particular economic theory; thateconomic legislation enjoys a strong presumption ofconstitutionality; and that in this particular case thecomplex economic judgments underlying the PatientProtection and Affordable Care Act are committed tothe legislative branch and are beyond theconstitutional authority of the judicial branch.
Amici are:
Prof. Richard L. Aynes, University of Akron School ofLaw; Assoc. Prof. David S. Cohen, Earle Mack Schoolof Law at Drexel University; Assoc. Prof. CindyGalway Buys, Southern Illinois University School ofLaw; Prof. Wilson R. Huhn, University of Akron Schoolof Law; Prof. Richard Saphire, University of DaytonSchool of Law; Prof. Robert H. Smith, Suffolk
Counsel for all parties received notice of amici’s intent to file1
this brief at least ten days prior to the due date; all parties haveconsented to this filing. Under Rule 37.6 of the Rules of this Court,amici state that no counsel for a party authored this brief in wholeor in part, and no counsel or party made a monetary contributionintended to fund the preparation or submission of this brief. Noperson other than amici or their counsel made a monetarycontribution to its preparation or submission.
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University Law School; Prof. Emeritus Lloyd B.Snyder, Cleveland-Marshall College of Law; Prof.Katherine Swartz, Harvard University; Prof. RebeccaZietlow, University of Toledo College of Law.
SUMMARY OF ARGUMENT
During the 19 century and the beginning of theth
20 century the Supreme Court took the position thatth
the Constitution embodied the economic theory oflaissez faire and it struck down state and federallegislation that was inconsistent with that theory. After 1937 the Supreme Court rejected that notion andinstead embraced the healthy principle that theConstitution does not embody any particular economictheory. This change was appropriate because thechanging and competing models and theories that areused to explain and predict human economic behaviorare suited to legislative decision-making but have noplace in the judicial responsibility to interpret themeaning of the Constitution. The principle ofseparation of powers requires the courts to defer toCongress on questions of economic policy. As aconsequence, the Court should uphold theconstitutionality of the individual mandate of thePPACA.
ARGUMENT
I. THE CONSTITUTION DOES NOT EMBODYANY PARTICULAR ECONOMIC THEORY
It has been suggested that the individual mandatecontained in the Patient Protection and AffordableCare Act (PPACA), Pub. L. 111-148, 124 Stat. 119(2010), is unconstitutional because Congress lacks the
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power to force people to purchase a product that theydo not wish to purchase; that this constitutes anunconstitutional interference with the operation of thefree market. See, e.g., Virginia v. Sebelius, 728F.Supp.2d 768 (E.D. Va. 2010), rev’d for lack ofjurisdiction 656 F.3d 252 (4 Cir. 2011). In strikingth
down the individual mandate the District Courtstated: “At its core, this dispute is not simply aboutregulating the business of insurance – or crafting ascheme of universal health insurance coverage – it’sabout an individual’s right to choose not toparticipate.” Id. at 788.
In 1905 in the case of Lochner v. New York, 198U.S. 45 (1905) Justice Oliver Wendell Holmes declaredthat “a Constitution is not intended to embody aparticular economic theory.” Id. at 75. Holmes waswriting in dissent, because at that time the SupremeCourt had most definitely interpreted the Constitutionto incorporate one particular school of economics. Holmes wrote:
[A] Constitution is not intended to embody aparticular economic theory, whether ofpaternalism and the organic relation of thecitizen to the state or of laissez faire. It is madefor people of fundamentally differing views, andthe accident of our finding certain opinionsnatural and familiar, or novel, and evenshocking, ought not to conclude our judgmentupon the question whether statutes embodyingthem conflict with the Constitution of theUnited States. 198 U.S., at 75 (Holmes, J.dissenting).
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Consistent with Holmes’ dissent, the Constitutionitself does not mandate or even mention any particulareconomic theory. Despite the silence of theConstitution on this point, the Supreme Court of thatera embraced the notion that there is a constitutionalright to be free of government regulation in the use ofone’s property. See Dred Scott v. Sandford, 60 U.S. (19How.) 393, 450 (1857) (striking down law thatprohibited slavery in the northern territories of theUnited States upon the ground that this constituted aviolation of slaveholders’ constitutional right toproperty); Lochner, (striking down maximum hourlegislation); Adair v. United States, 208 U.S. 161(1908) (striking down a statute protecting the right tobelong to a union); Coppage v. Kansas, 236 U.S. 1(1915) (same); and Adkins v. Children’s Hospital, 261U.S. 525 (1923) (striking down a minimum wage lawfor women and children as violation of Due Processrights of employers). In all of these cases the Courtruled that the rights of property were entitled to broadconstitutional protection from interference bylegislatures. While it is certainly true that theConstitution prohibits legislatures from deprivingpersons of certain vested rights, taking privateproperty for public use without just compensation,interfering with the obligation of contracts, ordepriving people of property without due process oflaw, the Supreme Court of that era also extendedconstitutional protection to the economic advantagethat the ownership of property confers upon its ownerin the marketplace. The Court explained its rationalefor this theory in Coppage, where it stated thatinequalities of bargaining power are inherent in theright of property and that legislatures are thereforeconstitutionally powerless to redress inequalitiesarising from the ownership of property:
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No doubt, wherever the right of private propertyexists, there must and will be inequalities offortune; and thus it naturally happens thatparties negotiating about a contract are notequally unhampered by circumstances. … And,since it is self-evident that, unless all things areheld in common, some persons must have moreproperty than others, it is from the nature ofthings impossible to uphold freedom of contractand the right of private property without at thesame time recognizing as legitimate thoseinequalities of fortune that are the necessaryresult of the exercise of those rights. 236 U.S.,at 17.
In 1937 in the case of Parrish v. West Coast Hotel,300 U.S. 379 (1937) (upholding minimum wage law),the Supreme Court overruled Adkins and declared that“freedom of contract” would no longer be recognized asa constitutional principle. The Court stated: “In eachcase the violation alleged by those attacking minimumwage regulation for women is deprivation of freedomof contract. What is this freedom? The Constitutiondoes not speak of freedom of contract.” Id. at 391. InFerguson v. Skrupa, 372 U.S. 726 (1963), the Courtadded: “The doctrine that prevailed in Lochner,Coppage, Adkins, Burns, and like cases - that dueprocess authorizes courts to hold laws unconstitutionalwhen they believe the legislature has acted unwisely -has long since been discarded.” Id. at 730. Instead,the Court adopted Holmes’ view that the Constitutiondoes not embody any particular economic theory:
We conclude that the Kansas Legislature wasfree to decide for itself that legislation wasneeded to deal with the business of debt
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adjusting. … Whether the legislature takes forits textbook Adam Smith, Herbert Spencer,Lord Keynes, or some other is no concern ofours. The Kansas debt adjusting statute maybe wise or unwise. But relief, if any be needed,lies not with us but with the body constituted topass laws for the State of Kansas. Id. at 732.
In 1992, in the case of Planned Parenthood ofSoutheastern Pennsylvania v. Casey, 505 U.S. 833(1992) the Supreme Court explained that the Lochnerline of cases was overruled because the Supreme Courthad erred in adopting the theory of laissez faire as aconstitutional principle. It was an error – “afundamentally false assumption” – for the justices tohave treated their faith in “a relatively unregulatedmarket to satisfy minimal levels of human welfare” asa fundamental principle of constitutional law. Id. at861-862.
Accordingly, the Constitution is no longerconsidered to embody the economic theory of laissezfaire or interpreted to protect the rights of propertyagainst government regulation. But neither has theSupreme Court chosen to incorporate redistributivistprinciples into the Constitution. See Dandridge v.Williams, 397 U.S. 471, 484 (1970) (no constitutionalright to welfare); Lindsey v. Normet, 405 U.S. 56, 74(1972) (no constitutional right to subsidized housing);Maher v. Roe, 432 U.S. 464 (1977) (no constitutionalright to public funding for abortion). In the area ofEqual Protection, the Supreme Court has declined totreat the poor as a suspect class or wealth as a suspectclassification. See Rodriguez v. San AntonioIndependent School District, 411 U.S. 1, 29 (1973)(stating, “[T]his Court has never heretofore held that
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wealth discrimination alone provides an adequatebasis for invoking strict scrutiny”). Similarly, theCourt has acknowledged that the Due Process Clausedoes not favor labor over capital. See Lincoln FederalLabor Union No. 19129, A.F. of L. v. Northwestern Iron& Metal Co., 335 U.S. 525, 537 (1949) (stating, “Just aswe have held that the due process clause erects noobstacle to block legislative protection of unionmembers, we now hold that legislative protection canbe afforded non-union workers.”) The Constitutiondoes not take sides between the rich and the poor nordoes it dictate economic policy.
Accordingly, the courts must accord great deferenceto the judgment of Congress regarding theconstitutionality of economic legislation.
II. IN A BROAD RANGE OF AREAS OFCONSTITUTIONAL LAW, THE SUPREMECOURT HAS RULED THAT IN REVIEWINGT H E V A L I D I T Y O F E C O N O M I CLEGISLATION THE COURTS MUST DEFERTO LEGISLATIVE JUDGMENT, TO THEEXTENT THAT THIS PRINCIPLE MUST BECONSIDERED TO BE AN ASPECT OF THESEPARATION OF POWERS.
The Supreme Court has ruled in a broad range ofareas in constitutional law that economic legislation ispresumed constitutional and that the courts are not tosubstitute their judgment on economic matters for thatof the legislature. In various cases interpreting theDue Process Clauses, the Equal Protection Clause, theGeneral Welfare Clause, the Commerce Clause, andthe Necessary and Proper Clause, the Supreme Courthas stated:
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[R]egulatory legislation affecting ordinarycommercial transactions is not to be pronouncedunconstitutional unless in the light of the factsmade known or generally assumed it is of sucha character as to preclude the assumption thatit rests upon some rational basis within theknowledge and experience of the legislators. United States v. Carolene Products, 304 U.S.144, 152 (1938) (Stone, J.) (upholding federallaw against challenge under Due ProcessClause).
[T]o be constitutional … It is enough that thereis an evil at hand for correction, and that itmight be thought that the particular legislativemeasure was a rational way to correct it. Williamson v. Lee Optical, 348 U.S. 483, 488(1955) (Douglas, J.) (unanimous decision)(upholding state law against challenge underEqual Protection Clause).
We have returned to the original constitutionalproposition that courts do not substitute theirsocial and economic beliefs for the judgment oflegislative bodies, who are elected to pass laws. Ferguson v. Skrupa, 372 U.S. 726, 730 (1963)(Black, J.) (unanimous decision) (upholdingstate law against challenge under Due ProcessClause).
[W]here we find that the legislators, in light ofthe facts and testimony before them, have arational basis for finding a chosen regulatoryscheme necessary to the protection of commerce,our investigation is at an end. Katzenbach v.McClung, 379 U.S. 274 303-304 (1964) (Clark,
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J.) (unanimous decision with concurringopinions by Black, Douglas, and Goldberg, JJ.)(upholding federal law under CommerceClause).
It is by now well established that legislativeActs adjusting the burdens and benefits ofeconomic life come to the Court with apresumption of constitutionality, and that theburden is on one complaining of a due processviolation to establish that the legislature hasacted in an arbitrary and irrational way. Useryv. Turner Elkhorn Mining Co., 428 U.S. 1, 15(1976) (Marshall, J.) (upholding federal lawagainst challenge under Due Process Clause).
Although parties challenging legislation underthe Equal Protection Clause may introduceevidence supporting their claim that it isirrational, United States v. Carolene ProductsCo., 304 U.S. 144, 153-154 (1938), they cannotprevail so long as “it is evident from all theconsiderations presented to [the legislature],and those of which we may take judicial notice,that the question is at least debatable.” Id., at154. Where there was evidence before thelegislature reasonably supporting theclassification, litigants may not procureinvalidation of the legislation merely bytendering evidence in court that the legislaturewas mistaken. Minnesota v. Clover LeafCreamery Co., 449 U.S. 456, 464 (1981)(Brennan, J.) (footnote omitted) (upholdingstate law against challenge under EqualProtection Clause).
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[Referring to] the strong deference accordedlegislation in the field of national economicpolicy…. Pension Benefit Guaranty Corp. v.R.A. Gray & Co., 476 U.S. 717, 729 (1984)(Brennan, J.) (unanimous decision upholdingfederal law against challenge under DueProcess Clause).
In considering whether a particular expenditureis intended to serve general public purposes,courts should defer substantially to thejudgment of Congress. South Dakota v. Dole,483 U.S. 203 (1987) (Rehnquist, J.) (upholdingfederal law under General Welfare Clause).
[I]n determining whether the Necessary andProper Clause grants Congress the legislativeauthority to enact a particular federal statute,we look to see whether the statute constitutes ameans that is rationally related to theimplementation of a constitutionallyenumerated power. United States v. Comstock,__ U.S. __, 130 S.Ct. 1949, 1956 (2010) (Breyer,J.) (upholding federal law under Necessary andProper Clause).
The principle that the courts must defer tolegislatures in the formation of economic policy infusesthe Constitution. It is so pervasive that it must beconsidered a fundamental aspect of the doctrine ofSeparation of Powers.
In the landmark case of Wickard v. Filburn, 317U.S. 111 (1942) (unanimous decision upholdingallotment program of federal Agricultural AdjustmentAct against challenge under Commerce Clause),
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Justice Robert Jackson explained why the courts aredisabled from second-guessing the judgment oflegislatures on economic questions:
The conflicts of economic interest between theregulated and those who advantage by it arewisely left under our system to resolution by theCongress under its more flexible andresponsible legislative process. Such conflictsrarely lend themselves to judicialdetermination. Id. at 129 (Jackson, J.).
The allocation of economic burdens and benefits amongclasses of persons necessarily involves compromise.Compromise among economic interests is appropriatein the formation of economic policy by the legislativebranch, but it has no place in the interpretation of theConstitution by the judicial branch.
The following section of this brief identifies anumber of economic factors that Congress had toconsider in designing the PPACA.
III. ECONOMIC ANALYSIS IS SUITED TOTHE LEGISLATIVE DUTY TO DEVELOPPUBLIC POLICY BUT IS NOTCOMPATIBLE WITH THE JUDICIALDUTY TO INTERPRET THE MEANING OFTHE CONSTITUTION
In deciding whether to enact the individualmandate as part of the PPACA, Congress had toconsider a host of interrelated factors including thefollowing: the cost of health care in the United States;the cost of health insurance; the extent of out-of-pocketexpenses for health care; the increase in the cost of
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health insurance relative to increases in personalincome and the cost of living; the absolute and relativecost borne by persons in different income groups; theextent and effect of cost-shifting under current law;and the number and effect of personal bankruptciesattributable to the cost of health care. Mostimportantly, Congress had to assess the state of thenation’s health and the effect of the lack of adequateinsurance upon people’s health.
In deciding whether the nation’s system of payingfor medical care ought to be reformed, Congress alsohad to evaluate the cost and effectiveness of currentfederally funded programs, including Medicare, 42U.S.C. § 1395, Medicaid, 42 U.S.C. § 1396, theNational Health Service Corps, 42 U.S.C. § 254d, theVeterans Health Administration, 38 U.S.C. § 7401,and federally funded community health centers, 42U.S.C. § 254b. For purposes of comparison, Congresshad to familiarize itself with the details of the healthcare delivery systems in other countries as well as therelative cost and efficacy of those programs. Onceagain, a prime consideration was whether the peopleof other countries enjoy better health than Americancitizens.
Congress also had to predict the likely effect of thePPACA on all of the previously mentioned cost andhealth factors. Specifically, Congress sought toanticipate the likely effect of insurance reforms,including guaranteed issue regardless of health;guaranteed coverage of preexisting conditions;complete coverage for preventive care; coverage foradult children; and minimum medical loss ratios. Ithad to determine the level of federal subsidies toindividuals and families of different income groups
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that would be necessary to enable them to purchasehealth insurance and offset out-of-pocket expenses; thefuture cost of federal contributions to the states thatwould be necessary to pay for the expansion ofMedicaid; and the extent and mix of tax increases andspending reductions that would be necessary to pay forthese reforms.
In keeping with our constitutional tradition thatthe states have served as laboratories forexperimentation in governing, Congress also examinedthe efficacy of health insurance reform in the variousstates and modeled the PPACA after the plan that wasadopted in Massachusetts in 2006, Mass. St. 2006, c.58 (An Act Providing Access to Affordable, Quality,Accountable Health Care).
In making these determinations Congress had atits disposal an array of economic studies from varioussources, including the Agency for Healthcare Researchand Quality, the Office of the Actuary of the Centers2
for Medicare and Medicaid Services, the3
See, e.g., Agency for Healthcare Research and Quality,2
Healthcare Cost and Utilization Project, HCUP Facts and Figures2009, at http://www.hcup-us.ahrq.gov/reports/factsandfigures/2009/TOC_2009.jsp (containing data relating to the cost and efficacy ofhospital care in the United States).
See, e.g., Office of the Actuary, Centers for Medicare and3
Medicaid Services, Estimated Effects of the “Patient Protection andAffordable Care Act” as Proposed by the Senate Majority Leader onNovember 18, 2009 (December 10, 2009), at http://src.senate.gov/files/OACTMemorandumonFinancialImpactofPPAA%28HR3590%29%2812-10-09%29.pdf#page=1 (estimating the effect of theproposed PPACA on health care coverage and total healthexpenditures).
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Congressional Budget office, the Joint Commission on4
Taxation, the Commonwealth Fund, the Organisation5 6
for Economic and Cooperative Development, the7
World Health Organization of the United Nations, the8
See, e.g., Congressional Budget Office, Letter to Nancy Pelosi,4
Speaker, U.S. House of Representatives, Preliminary Estimate ofthe Effects of the Insurance Coverage Provisions of theReconciliation Legislation Combined with H.R. 3590 as Passed bythe Senate (March 18, 2010), at http://www.cbo.gov/ftpdocs/113xx/doc11355/hr4872.pdf (estimating the effect of the proposed PPACAon health care coverage and the federal budget).
See, e.g., Joint Commission on Taxation, JCT report on House5
Reconciliation Bill H.R. 4872 (Report JCX-16-10), (March 18,2010), accessible at http://www.jct.gov/publications.html?func=startdown&id=3671. (estimating the effect of the proposed PPACA onthe federal budget).
See, e.g., Davis, Karen, et al., Mirror, Mirror on the Wall: An6
International Update on the Comparative Performance ofAmerican Health Care (May 15, 2007), Commonwealth Fund, athttp://www.commonwealthfund.org/Publications/Fund-Reports/2007/May/Mirror--Mirror-on-the-Wall--An-International-Update-on-the-Comparative-Performance-of-American-Healt.aspx(comparing the United States to other industrialized countries ona number of measures regarding performance of the health caresystem).
See, e.g., Organisation for Economic and Cooperative7
Development, OECD.StatExtracts, at http://stats.oecd.org/index.aspx?DataSetCode=HEALTH_STAT (setting forth data regardinghealth and health care within a number of industrializedcountries).
See, e.g., World Health Organization, World Health Report 2000,8
at http://www.who.int/whr/2000/en/ (measuring and comparingthe health of the population of different countries).
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Kaiser Family Foundation, and Families USA. 9 10
Congress also was free to consider the voluminousliterature published by health care economists as11
well as their testimony before Congress.12
All of the foregoing economic factors had to beconsidered in designing this complex, comprehensivescheme of legislation. In the words of the DistrictCourt below, the various elements of the PPACA are a“finely crafted watch,” containing “approximately 450separate pieces,” many if not most of which areinterrelated and interdependent. Florida v. U.S. Dept.of Health and Human Services, 780 F.Supp.2d 1256,1304 (N.D. Fla. 2010). Congress had to choose not only
See, e.g., Kaiser Family Foundation, Employer Health Benefits9
Annual Survey, available from Kaiser Family Foundation, athttp://ehbs.kff.org/ (tracking increases in the cost of healthinsurance, average income, and the cost of living since 1999).
See, e.g., Families USA, Costly Coverage: Premiums Outpace10
Paychecks (August 2009), at http://www.familiesusa.org/resources/publications/reports/costly-coverage.html (comparing increases incost of health insurance to increases in income and inflation).
See, e.g., Brief Amici Curiae of Economic Scholars in Support11
of Defendants-Appellees, Liberty University, Inc., v. Geithner, __F.3d __ (4 Cir. 2011) (citing numerous studies by economicth
scholars relating to the necessity of the individual mandate).
See, e.g., Rowland, Diane, Testimony Before the U.S. Senate12
Committee on Finance, Medicaid and Health Reform, KaiserFamily Foundation at http://www.kff.org/healthreform/upload/050509RowlandTestimony.pdf/; Pearson, Mark, Written Statement toSpecial Senate Commission on Aging: Disparities in healthexpenditure across OECD countries: Why does the United Statesspend so much more than other countries?, OECD (September 30,2009), at http://www.oecd.org/dataoecd/5/34/43800977.pdf.
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from a competing set of economic models and theoriesbut also had to decide how to combine the hundreds ofmoving parts of this Act into a comprehensive andunified scheme of economic regulation. This was amatter of legislative prerogative and is beyond judicialcompetency.
In the exercise of its lawmaking function, Congressis not only permitted but expected to take economicdata and expert economic opinion into account indetermining whether to enact a system of universalhealth care coverage and in deciding what form thatsystem should take. While judges as individuals areas capable as legislators at understanding and actingupon this information, it is incompatible with theirjudicial role to bring these considerations to theinterpretation of the Constitution. The role of thecourts is limited to determining whether Congress hada rational basis for enacting a particular plan ofeconomic legislation.
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CONCLUSION
The United States Constitution does not grant thecourts any role in the development of economic policy. This power is instead conferred upon Congress.Accordingly, the individual mandate contained in thePatient Protection and Affordable Care should beupheld.
January 12, 2012
Respectfully submitted,
WILSON R. HUHN Counsel of Record29475 Bryce RoadPepper Pike, OH 44124(216) [email protected]
