While the new Congress deliberates over ways to repeal or defund the Obama Administration’s “healthcare reform” law, twenty states and the National Federation of Independent Business (NFIB), have filed suit in federal court arguing that the law is unconstitutional and should be struck down immediately. This is the largest of several legal challenges to Obamacare across the country.
Lawyers for NFIB and the states will appear in a Pensacola, Florida federal court this Thursday, December 16th. They will ask U.S. District Court Judge Roger Vinson to rule that the heart of the law – and “individual mandate” that obligates private citizens to obtain health insurance whether they want it or not – is unconstitutional. NFIB and the states will accordingly ask that Judge Vinson to strike down Obamacare in its entirety.
The Constitution does not allow Congress to force Americans to purchase a product solely because they are alive and the federal government’s claim of such authority contradicts more than two hundred years of Supreme Court precedent. Yet the individual mandate, which would obligate private citizens to obtain health insurance whether they want it or not, does just that.
Counsel for NFIB and the states will make the following arguments:
1) The Individual Mandate in Unconstitutional
Under the Commerce Clause of the U.S. Constitution, Congress has the power to regulate people when they engage in an economic activity that affects interstate commerce.
The Obama Administration argues that choosing not to purchase something (like a health insurance policy) is somehow an “activity” that affects the economy. The federal government’s theory that a decision to do nothing is “activity” that may be regulated by Congress under the Commerce Clause is unprecedented. The Administration’s lawyers have been unable to identify a single pre-Obamacare decision upholding a law that forces a private individual to enter into a market for goods or services against their will.
NFIB and the states believe that the Administration’s position stretches the Commerce Power beyond recognition – and beyond the scope of the Constitution, which grants Congress only limited and enumerated powers.
NFIB and the states will urge Judge Vinson to rule that the Commerce Clause empowers Congress to regulate only economic activity and does not allow Congress to regulate individuals’ private decisions not to participate in a market. Otherwise, there would be virtually no limits on what Congress could force individuals to do. Laws forcing us to join gyms and buy GM cars would be possible and probable if there is no constitutional back stop to Congress’ Commerce Power. And that is a frightening thought.
2) Severability
Recognizing that the Individual Mandate may well be struck down as unconstitutional, Obamacare’s defenders insist that even if the mandate falls, the rest of the law should remain intact. But Congress intentionally decided not to include a severability clause in the healthcare reform law. A severability clause provides that the balance of a law will remain valid if a particular provision is ruled unconstitutional. Congress stripped the severability clause from earlier drafts of the healthcare reform bill because its supporters knew the constitutionality of the individual mandate was suspect. They took a calculated risk that the courts would not want to overturn such a politically charged piece of legislation. Congress’ attempt to play chicken with the courts should backfire.
Without a severability clause, any judge who strikes down the individual mandate also has the option of striking down all, or some, of the rest of the law, if he concludes that Congress would not have enacted the rest of its provisions except as part of a package with the mandate.
We expect Judge Vinson’s decision to be issued early in 2011. At the district court level, there are several possible outcomes: Judge Vinson could strike down all of Obamacare or only some parts. He could, of course, also rule the law constitutional.
Much will be at stake in court this week: the ultimate outcome of this case will determine whether the federal government will remain one of the few and enumerated powers as the founding fathers intended and as is crucial to the liberty of us all.
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