“Just when you think everything that can be said about Obamacare’s constitutionality has been said, along comes another legal brief that makes a new point. The latest was filed by the Arlington-based Institute for Justice, a nonpartisan, libertarian public-interest law firm. The institute points out that the Affordable Care Act’s individual mandate — the requirement to purchase insurance — is not only an unprecedented expansion of federal power. It also undermines several centuries of contract law.”
“The anti-conscience mandate’s violation of employers’ religious freedom is only the beginning of the law’s profound threat to limited government and personal liberty. Obamacare represents an unprecedented federal overreach into the health care decisions of employers, employees, and individuals—religiously affiliated or not—and further implementation of the law will only increase conflicts between government regulations and individual liberty. The lawsuits filed this week reinforce the need to protect religious liberty specifically and personal liberty more generally by repealing Obamacare.”
“The birth-control coverage mandate violates the First Amendment’s bar against the ‘free exercise’ of religion. But it also violates the Religious Freedom Restoration Act. That statute, passed unanimously by the House of Representatives and by a 97-3 vote in the Senate, was signed into law by President Bill Clinton in 1993. It was enacted in response to a 1990 Supreme Court opinion, Employment Division v. Smith.”
“In this article, we briefly explore the range of meanings that attach to the term ‘unconstitutional,’ as well as the problem of determining the ‘constitutionality’ of a lengthy statute when only some portions of the statute are challenged. We then, using ‘unconstitutional’ to mean ‘inconsistent with an original social understanding of the Constitution’s text (with a bit of a nod to judicial precedents),’ show that the individual mandate in the PPACA is not authorized by the federal taxing power, the federal commerce power, or the Necessary and Proper Clause and is therefore unconstitutional.”
“The coming Supreme Court decision about the constitutionality of the Affordable Care Act’s individual mandate will have profound implications for government control over the doctor-patient relationship.
Simply put, if the federal government can mandate that all Americans must have health insurance, it is only a short step to strict government mandates about how doctors must practice medicine.”
“When the Supreme Court hears the state challenge to ObamaCare later this year, most of the attention will likely be on the challenge to the law’s individual mandate to purchase health insurance and its implications for the Constitution’s Commerce Clause. But in a somewhat unexpected move, the Supreme Court has decided to allow for a full hour of oral argument regarding another part of the case: the expansion of Medicaid, the joint federal-state health program for the poor and disabled, which is expected to account for half of the law’s health coverage expansion.”
“That is, states must now accept a comprehensive reorganization of Medicaid or forfeit all federal Medicaid funding—even though the spending power is circumscribed to preserve a distinction between what is local and what is national. If Congress is allowed to attach conditions to spending that the states cannot refuse in order to achieve an objective it could not outright mandate, the local/national distinction that is so central to federalism will be erased.”
“Twenty-six states on Tuesday asked the Supreme Court to overturn the health care reform law’s mandatory state expansion of the Medicaid program, a sleeper issue in the health care reform lawsuit that could determine how much leverage the federal government has with the states on any issue.
The states, led by Florida, argue that the federal government can’t force them to expand the Medicaid program, which has operated as a partnership between the feds and the states, as part of the 2010 health reform law. They argue that the Medicaid expansion is possibly more coercive than the law’s individual mandate.”
“More than 100 congressional Republicans signed a brief Friday urging the Supreme Court to strike down the entire healthcare reform law if it finds the law’s individual mandate unconstitutional… More than 100 economists, including Nobel laureates, joined a separate brief Friday on the issue of severability. That brief, filed by the American Action Forum, says the cost of the healthcare law would skyrocket without the mandate, making it unlikely that Congress would have passed the law without it.”
“The Obama administration is headed into a Supreme Court case over healthcare reform without a clear answer to significant questions about Congress’s power… Several lower courts have said the mandate falls within the bounds of the Commerce Clause, but even they have been wary about the Justice Department’s inability to clearly define a limit on Congress’s power.”