Class assignment. Moot court. Pick a side and present oral argument.

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    Class assignment. Moot court. Pick a side and present oral argument and written case brief and opinion (attorneys can write a suggested opinion to the court).

    I don’t have all the rules in front of me at this second but it’s something along the lines of: 3 minutes uninterrupted and the rest can be up to questioning by the panel. Answer all questions directly. Do not make rhetorical arguments (pet peeve of the professor). If not questioned continue giving dissertation. Oral argument total time 20 min. Make your strongest argument first.

    The case

    United States Court of Appeals, Second Circuit

    Richard W. Miller, Appellant,
    Steven T. Miller as Commissioner, Internal Revenue Service, Appellee

    Decided April 4, 2014

    Before Circuit Judges Ralph Winter, Richard Wesley, and Peter Hall.

    Judge Wesley delivered the opinion of the Court:

    The appellant, Richard W. Miller, is a 27-year old self-employed commodities trader who lives in New York City. Mr. Miller was covered by his father’s medical insurance policy until he turned 26, at which point he lost his eligibility for coverage under that policy. Since his coverage lapsed at the beginning of 2013, he has not been covered by any medical insurance. In order to comply with federal regulatory requirements, he must be continuously licensed as a Futures Commission Merchant by the National Futures Association (“NFA”). The NFA requires that its members certify each year that they are in compliance with all federal laws and regulations concerning financial requirements.
    The Patient Protection and Affordable Care Act (“PPACA”), which became law in 2010, provides that as of this year, every “applicable individual shall . . . ensure that the individual . . . is covered under minimum essential coverage.” 26 U.S.C. §5000A. Since Mr. Miller does not meet this requirement, he is unable to provide the certificate of compliance that the NFA requires of all its members. As a result, when his license expires on June 30, 2014, he will unable to continue to serve as a Futures Commission Merchant and engage in commodities trades on behalf of his clients. This will effectively put him out of work.
    Mr. Miller filed a request for a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure, asking the District Court for the Southern District of New York to prospectively bar enforcement of §5000A on the grounds that the United States Congress is without authority under the United States Constitution to establish such a requirement. District Judge John Koeltl denied this request in a one-sentence opinion, finding that the Supreme Court’s decision in National Federation of Independent Business v. Sibelius, 567 U.S. — (2012) (“NFIB”), held that Congress possessed such power under the Taxing and Spending Clause, although not under the Commerce Clause. Mr. Miller has appealed this decision, and we hereby reverse.
    Before this Court can proceed to adjudicate Mr. Miller’s claim, it must first determine that he has standing to invoke this Court’s jurisdiction. The Supreme Court set forth the criteria for standing in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1982): (1) the plaintiff must have suffered a concrete injury or be in imminent danger of such an injury; (2) the injury must be “fairly traceable” to the government’s conduct; (3) the requested relief will remedy the plaintiff’s injury. There is little doubt that each of these requirements is met here. First, Mr. Miller is in danger of losing his NFA license to trade commodities since he will not be able to certify that he is in compliance with all federal laws when his license comes up for renewal. Second, the danger of losing his license directly results from the existence of an unconstitutional law that requires him to obtain health insurance. Third, a declaration that 26 U.S.C. §5000A is invalid will provide Mr. Miller with a remedy, since if that law is found to be unconstitutional, it will have no legal effect and thus create no obstacle to the renewal of his license. Consequently, this Court is authorized to adjudicate the constitutional challenge to an important section of PPACA.
    The first issue before the Court is whether the Commerce Clause authorizes Congress to enact a law that has the effect of requiring an individual to enter the market for health insurance. As Chief Justice Roberts concluded in NFIB-1, “Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to Congressional authority. . . [It] would bring countless decisions an individual could potentially make within the scope of federal regulation, and–under the Government’s theory—empower Congress to make those decisions for him.” NFIB-1at 6. The Chief Justice held that this would violate the Commerce Clause because “[t]he Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.” Id. at 8. The Chief Justice concluded, “the individual mandate cannot be sustained under the Necessary and Proper Clause as an essential component of insurance reforms. . . . Even if the individual mandate is ‘necessary’ to the Act’s insurance reforms, such an expansion of federal power is not a ‘proper’ means for making those reforms effective.” Id. at 8-9.
    The arguments that Justice Ginsburg presents in her dissent do not convince this Court that it should reconsider the holding of the Supreme Court concerning the meaning of the Commerce Clause. While Gonzales v. Raich, 545 U.S. 1 (2005), does find authorization for Congress to enact a comprehensive program of drug regulation, none of the provisions of the Controlled Substance Act require any person to take drugs or perform other actions. There is an important difference between protecting individuals from using dangerous substances and forcing them to spend money for what Congress has determined will be in their interest. Similarly, Justice Ginsburg’s reliance on Wickard v. Filburn, 317 U.S. 111 (1942), is misplaced, since the farmer in question was already a participant in interstate commerce, and had thus made himself subject to federal regulations governing the use of fields for which he was paid to leave them unplanted. Had such regulations been imposed on farmers who grew agricultural products only for home consumption, they would clearly have violated the Commerce Clause, but federal law did not purport to regulate their activity. We see no difficulty in applying a bright-line rule that Congress cannot use the Commerce Clause to regulate the conduct of individuals who have chosen not to participate in the market that Congress seeks to regulate.
    The second issue before this Court is whether Congress may do under the Taxing and Spending Clause what it may not do under the Commerce Clause. First, there is no doubt that while Congress may classify a tax as a penalty as part of a statute, it may not do so if it is attempting to invoke its powers under the Taxation Clause. Bailey v. Drexel Furniture (the Child Labor Tax Case), 259 U.S. 20 (1922), involved a challenge to a federal law that taxed the profits of any company that employed children. It was clear that the purpose of this tax was to prevent companies from employing children, a laudable goal but one that was forbidden to Congress by the Supreme Court’s interpretation of the Commerce Clause in the 1920s. Chief Justice Taft wrote the opinion that struck down the tax, finding that it was “a penalty to coerce the people of a State to act as Congress wishes them to act in respect of a matter completely the business of the state government under the Federal Constitution.” Id. at 39. Similarly in United States v. Butler, 297 U.S. 1 (1936), the Supreme Court held that Congress may not use the Taxation Clause to authorize a tax that had the effect of establishing regulations that were forbidden by the Commerce Clause.
    In this case, there is no question that the penalty imposed on Mr. Miller and other similarly-situated persons is not a tax. As the Supreme Court said in United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U.S. 213, 224 (1996), “a tax is an enforced contribution to provide for the support of the government; a penalty. . . is an exaction imposed by statute as punishment for an unlawful act.” Had Congress wanted to finance PPACA by raising income tax rates, the Sixteenth Amendment has provided sufficient justification for the past hundred years. However, by making it illegal to fail to possess appropriate insurance, see 26 U.S.C §5000A, Congress has imposed a penalty upon a matter that is outside its regulatory authority. To allow Congress to circumvention the Commerce Clause by treating an unconstitutional penalty as a constitutional tax establishes a precedent that undermines the principles of federalism enshrined in the Constitution. Congress could then regulate anything and everything merely by characterizing financial penalties as constitutional taxes.
    The arguments presented by Chief Justice Roberts in NFIB-II, at 5-6, fail to adequately address this issue. The fact that some prior decisions of the Supreme Court have erroneously classified penalties as taxes does not mean that this Court should perpetuate such errors. If this is what stare decisis means, then this Court should mindlessly affirm the decision below on the grounds that once the Supreme Court had spoken all critical words must be silenced. Similarly, the fact that PPACA’s penalty may be de minimus is irrelevant to whether Congress must comply with the restrictions of the Commerce Clause, since Mr. Miller’s activity is not subject to any regulation under the Commerce Clause. Finally, the fact that the penalty is collected through the normal taxation process does not necessarily make it a constitutional tax, since the Necessary and Proper Clause permits Congress to choose the means of enforcing penalties—but only if Congress has the power to impose such penalties in the first place.
    * * * * * * *
    Since the Constitution does not authorize Congress to impose the penalty set forth in 26 U.S.C. §5000A, the court below erred in denying Mr. Miller’s request for a preliminary injunction. Consequently, this case is reversed and remanded to the District Court for the Southern District of New York for the entry of a preliminary injunction barring the defendant-appellant from enforcing 26 U.S.C. §5000A.

    It is so ordered.

    I’ll post the rules when i find them. I’m starting here for ideas and suggestions. I think we can basically re argue Obamacare.

    I will also be asking and emailing landmark Legal,The Institute For Justice,Paul Clement and Michael carbon for advice and help.

    I cant seem to find Land mark’s original brief so if anyone has them please let me know.

    I wonder if we are allowed to argue against Roberts in a court preceding being that his opinion was the majority decision.I wonder if can argue against a past decision as wrong even though it was already decided. I think there has to be a legal term for Roberts inane notion that you cant regulate inactivity but you can tax it.
    What kind of tax is this anyway? Direct capitation tax? Exsize tax? Income tax? Amongst a whole host of other issues with his incoherent opinion including the words “lets not fiddle around with labels,” which I’m sure the logic portion of this website can destroy.

    Any advice and help would be much appreciated.

    Thank you.


    I think the Idea is that the case is being appealed.Do i stand with the decision or do i stand with appeal is the question.Looks like I agree with the court and am against appeal barring a serious constitutional flaw in the decision.


    Which side are you assigned to argue?

    Or do you get to pick? If you get to pick I assume you’re going to argue that the Health Care Act is unconstitutional, or at lease this particular provision is.

    Based on your description of the professor I’d stick to the law & constitution, even if the other side doesn’t and argues rhetorical policy points.

    Argue that Roberts was correct on the commerce clause et all but incorrect in his reading of the taxing power, as there is no constitutional authorization to tax anyone for not purchasing a good or service.

    You could also attempt to argue that this is a case of uncompensated takings, as Mr. Miller will have to forfeit his license and thus livelihood. However I’m not sure how far you’ll get as courts have typically not found much of anything a government does as violating the takings clause. For better or worse you’d probably have a better shot invoking the 14th amendment’s due process clause. :p The idea is almost certainly to find case-law precedent to support your position rather than argue principle.

    The other side will probably introduce arguments based on policy and costs; if so you can point out that there are costs to driving people out of their livelihoods as well.


    Well Roberts was asinine as well on the commerce clause. according to him the government cant regulate commerce in this case but can tax it.Whatever happened to “to tax something is to destroy?”

    He let me pick unconstitutional. I could argue that there is no precedent for taxing something for inactivity but I wonder of its the strongest argument. The judges may ask me about Wickard v Filburn to which I would reply that if this were to apply then Wickurd could force Filburn grow wheat. There is no commerce here ie as if there was no wheat being grown.I wonder if this is the strongest argument since he said start with your strongest argument.

    your correct in assuming that arguing principle would go nowhere. My opposition will not be arguing principle either. We will both try to find precedent and use court proceeder, constitutional interpretation ,etc, just like a real court.

    I’m unaware what uncompensating takings is but I will look into it. I could argue due process but I would rather not use something the left has always used to grow federal power and, there is a ton of precedent of them doing that if I recall.

    Thanks for the feedback.


    Is taxation theft? If so, is theft ok? If not, what are we really arguing?
    To ask the State, which is the ultimate arbiter of all disputes including disputes that involve itself, to apply justice, is something that just will not be. The best of arguments against Obamacare mean what? Nothing really. Not when the arbiter gets to decide whether it is right or wrong, and when it comes to the State, the monopoly of force and power, what decision will it make? To grow.
    Little victories here or there in the courts don’t mean a darn thing.
    The real question is this, is theft wrong. Yes. So taxation is wrong. Fighting over who will pick the cotton won’t achieve anything. You are still a slave.
    The strongest argument is simple, taxation is theft, under any means, to argue over whether Stevens is correct to say the Congress can tax us this way is not even the point. Of course Congress can tax us, It can tax us any darn way it wants to because it has the monopoly of force.
    Is the flat tax, fair tax, or the income tax or any tax better is not the real question.

    Is tax theft?

    Not, who will pick the cotton?


    I’m basing my oral argument on Landmark Leagal’s brief:

    My understanding is that they claim that the employer mandate must fall into a criteria of proper authority for taxation. It must either be a direct tax (which must be apportioned amongst the states) an excise tax (based on activity) or an income tax (which it clearly isn’t).

    According to Landmark it can not be an excise tax because there is no activity however can employment alone be considered ceaseless activity? is the act of employing someone alone activity? if not what is the precedence proving it.

    Of course i understand that modern law is based on precedence on top of precedence of bad law but for a legal class this is the hoops that I must jump through. Of course the founders never intended for inactivity to be taxed but after years of trampling on the constitution using bad precedence I worry that the court may actually be able to legally get away with it.

    Again, does the act of employment alone constitute activity?


    Is taxation theft? If so, is theft ok? If not, what are we really arguing?

    It’s Moot Court, not Foundational Principles so he has to play their silly little games – just like the rest of us in somewhat similar situations.

    I mean, we can blow off the task he’s assigned but he can’t, he asked for advice on how to proceed in making the argument he was assigned, and pointed out the professor doesn’t put up with substituting some other argument.

    In a sane world things would be different.

    Now, it is true that deontologically we could all refuse to do anything that would involve trimming of any sort, and not get the credentials they require us to have in order to succeed in what we want to pursue in the society they created, and live as aesthetic monks. But until then it is what it is and I for one don’t like to scoff at the compromises others feel they have to make to survive in this degenerate age, when I know I’ve had to.

    If you manage to get through life (by which I mean IRL, not just the tubes, where it is easy to talk a good game) without making any compromises whatsoever when presenting a message in front of NORPs (no link for this acronym; you’ll have to search it yurself and may gawd have mercy on your SOULS if you do), then you’re leading a blessed life and a phalanx of guardian angels are looking out for you and if that isn’t proof of Gawd’s existence, then nothing is, and I envy you. Because not all of us are so blessed and even our gracious hosts sometimes tailor their message to their audiences.


    Liberty University challenges Obamacare Employer Mandate on religious and origination clause grounds.

    L.U. can not in be forced into a health plan that provides for abortions.

    All taxes must originate in the house. Harry Ried simply renamed and amendment and replaced the content making this originally formed in the senate.


    I’m the second guy. Yes the audio is scratchy. We have to write the opinion for the case by Monday.I think I can handle the taxing clause portion but I must say the lefts constitutional logic basing their arguments on EMTALA has really got me in a loop.
    I’m pulling my hair out. They may have a constitutional point if we are viewing it from the wickurd/raich point of view. The federal government may have legally bound us all in commerce through EMTALA in the 80’s. Now what.Square zero.

    If this werent a courtroom setting i’d rail on about how this is exactly why we cant trust the federal government with anything but alas im here trying to argue against obamacare on legal grounds not on policy grounds …perhaps there is some leeway for slight policy arguments …but only slightly.

    What have have they done to my country.How the hell did we get to where the state thinks its being nice by providing free emergency room coverage to every one and supposedly binding everyone into commerce. Then forcing us into commerce to pay for it. All because of the commerce and necessary and proper clause? Lord have mercy on us all.Were doomed.MF’ing doomed.

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