Justifications for ObamaCare’s individual mandate under the Necessary and Proper Clause and the Commerce Clause both fail to adhere to recent Supreme Court precedents. This suggests that the overturning of ObamaCare is plausible under a realistic analysis of contemporary jurisprudence and not merely an originalist interpretation of the Constitution.

“Congress had no scruples in passing a bill whose constitutional basis was paper thin. President Barack Obama was proud to sign it. Now only the federal courts stand between our burgeoning federal government and the Constitution’s model of limited government.”

Virginia’s Attorney General Ken Cuccinelli filed suit to overturn ObamaCare, because it violates a Virginia law which prohibits forcing citizens to purchase health insurance. The Department of Justice filed a motion to have the case dismissed, but a federal judge today ruled that the case is not frivolous and should proceed.

“A tax is when the government takes money from individuals, puts it in the Treasury, and plans to spend it. With the health-insurance mandate, the government is not taking money from private individuals; rather, it is commanding them to give their money to another private entity, not to the Treasury. If individuals don’t obey the mandate, they pay a penalty to the Treasury. But penalties aren’t taxes. The mandate is legally separate from the penalty.”

“So to sum up: McCain accurately dings Obama for being a tax-raiser. Obama responds by reiterating tax pledges he wouldn’t keep, while specifically (and ‘misleadingly’) attacking McCain for raising taxes with his health care plan. The ruse works–for most of the campaign, opinion polls showed that more people believed McCain was likely to raise taxes than Obama. Then, after the election, when Obama’s successfully passed health care plan imposes a new tax, he denies this fact in literally absolutist terms, until his administration is challenged to defend it in court. It’s breathtaking. And not in the good way.”

“If the Commerce Clause claim of power were a slam dunk, as previously alleged, would there be any need now to change or supplement that theory? Maybe the administration lawyers confronted the inconvenient fact that the Commerce Clause has never in history been used to mandate that all Americans enter into a commercial relationship with a private company on pain of a ‘penalty’ enforced by the IRS. So there is no Supreme Court ruling that such a claim of power is constitutional. In short, this claim of power is both factually and judicially unprecedented.”

“This essay argues that the Patient Protection and Affordable Care Act exceeds Congress’s authority to regulate interstate commerce and its taxing power, and infringes on state prerogatives. The lawsuits that have been filed by states and individuals arguing these points raise serious legal issues, not the least of which is whether there are any constitutional limits remaining on government power. Because the new law is unprecedented—in both its regulatory scope and its expansion of federal authority—it is difficult to predict how courts will react. However, a holding that these measures were in fact constitutional would fundamentally alter the relationship of the federal government to the states and the people, as there would seem to be no constitutional limits on federal power.”

Elena Kagan has spent the last year as the Solicitor General of the United States, where she is one of the government’s chief advocates. If she were a Supreme Court justice, she might need to recuse herself from deciding the fate of ObamaCare. “Ms. Kagan would sit as Mr. Obama’s nominee on the nation’s highest Court on a case of momentous Constitutional importance. If there is any chance that the public will perceive her to have prejudged the case, or rubber-stamped the views of the President who appointed her, she will damage her own credibility as a Justice and that of the entire Court.”

The lieutenant governor of Missouri filed suit against ObamaCare on the grounds that it interferes with individual freedom and state authority. “In his lawsuit, Kinder contends the federal health care law could cause Missouri to raise state taxes to pay for the expanded Medicaid program and that it improperly affects the compensation of state officials by making changes to the state health care plan. He also contends the law is unconstitutional because he says it interferes with Missourians’ personal health care choices.”

“Just a few months ago, President Obama signed the health-care bill into law amid much fanfare. But we’re hearing a different tune from small-business owners. They’re asking: How much is this going to cost me, how can I opt out, isn’t there any way to stop this from taking effect?”