Special Message From the League of American Voters
Why the Supreme Court Must Act
Obamacare Is Unconstitutional
The most important question before the U.S. Supreme Court, and one of the most significant hot-button issues facing the nation, is whether President Barack Obama’s healthcare reform bill is constitutional or unconstitutional.
The court’s recent hearing of arguments about the law shows that serious constitutional issues have been raised about the most sweeping legislation in modern times.
The League of American Voters has steadfastly opposed the Obamacare legislation on constitutional and other grounds.
The law will cost taxpayers over $1 trillion, add massive new regulations with enforcement agencies, cut Medicare by $500 billion for those who paid into the system — while adding tens of millions of new people to the system. A bevy of new taxes and fees will be used to pay for the program.
There are political matters, but there are significant constitutional ones as well.
The League soon will be sending a memo to the nine members of the Supreme Court outlining our opposition to the law and why our 250,000 members believe that this law should not be upheld.
Any number of legal experts, elected officials, and interested observers have weighed in with their views on the constitutionality of Obamacare — with many declaring that the high court should strike it down.
The Patient Protection and Affordable Care Act (PPACA) was signed by President Obama on March 23, 2010. The Supreme Court heard oral arguments for and against the bill on March 26-28, and the court’s decision is expected by the end of June.
Most of the discussion regarding the bill’s legality has centered on the individual mandate, which holds that Americans not covered by employer- or government-provided healthcare insurance must purchase insurance or pay a penalty.
Former U.S. Attorney General Edwin Meese III has stated,
“I would hope that the court would throw out at least the individual mandate that people buy insurance.
“The current state of the law regarding the Commerce Clause is a long ways from what the founders had in mind in the Constitution, and to carry it a giant step further in the direction of governmental power would be a big mistake.”
Chief Judge Joel Dubina of the 11th Circuit Court of Appeals in Atlanta, the court that ruled the individual mandate unconstitutional last August, wrote: “The individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and is therefore unconstitutional. This economic mandate represents a wholly novel and potential unbounded assertion of congressional authority: The ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives.”
Stephen B. Presser, the Raoul Berger Professor of Legal History at Northwestern University School of Law and a frequent witness on constitutional issues before congressional committees, noted that the Supreme Court has
generally upheld acts of Congress.
“Still, there are cases where the court has ruled that Congress has gone too far, such as
U.S. v. Lopez
, where the court held that Congress had no power to prohibit the carrying of firearms within 1,000 feet of schools because that might interfere with interstate commerce [young scholars’ education might be interrupted, and thus they would produce less in interstate commerce],” Presser observed.
“While Congress does, undeniably, have some power to reach deep into the economic lives of U.S. citizens, still there must be some limits on its power. These limits are clearly hinted at in the 10th Amendment to the Constitution, which provides that the powers not granted to the federal government are reserved to the states, and to the people thereof.
“Our framers understood limiting the federal government to be essential to preserving the liberty of our citizens. The PPACA, in effect, takes over one-sixth of the American economy, and forces Americans to buy a service [insurance] that they may not need or desire.
“The logic of forcing Americans to buy health insurance is just a short step away from dictating to Americans other consumer choices [e.g., you may only buy an electronically powered automobile, or you must eat three servings of vegetables or fruits a day].
“If Congress can enact the individual mandate in the PPACA, it is very difficult, if not impossible, to find any limits to its powers, and given the 10th Amendment, this is an intolerable situation.”
Virginia Attorney General Kenneth Cuccinelli, a leading opponent of the healthcare bill, has said that if the Supreme Court does not throw out Obamacare, the federal government will have “limitless power. If they can order you to buy this product, they can order you to buy any product.”
The PPACA “was an ugly bill when it was born and it was never expected to become law in the form it’s now written,” he added. “It has so many errors in it and, of course, more egregious than that, it has constitutional violations.”
U.S. District Judge Henry E. Hudson in December 2010 ruled that the individual mandate is unconstitutional, that the “tax” imposed on people who choose not to have insurance coverage was in practice a “penalty” outside the federal government’s constitutional authorities to raise revenues.
He said he could find no precedent for Congress’ right to regulate a person’s decision not to purchase a product.
Texas Rep. Ted Poe, an opponent of the law, said, “There is no place in the Constitution that gives government the authority to force citizens to participate in interstate commerce — in this case forcing citizens to buy government-approved insurance.
“There is nothing in the Constitution that gives government that authority and that’s really the basis for the entire bill, the individual mandate.
“What’s next? The government can then force us to buy their car — their green car, force us to buy their particular type of house — and it goes on and on, whether it’s food or some other product.”
He said that the individual mandate violates the principle of limited government. “If we don’t participate in the program by the government, we could be fined under the law, and I think all of that violates the constitutional standard of limited government. It makes government unlimited.”
Former New York Lt. Gov. Betsy McCaughey, a healthcare expert, agrees: “If Congress can force individuals to buy health insurance, Congress can force individuals to buy stocks and bonds to prop up Wall Street, or American-made automobiles to prop up Detroit.”
Rep. Tom Price of Georgia, chairman of the Republican Policy Committee and an orthopedic surgeon, has stated, “This is the first time in the history of our nation that the federal government has said to each and every American citizen, by virtue of being a citizen you must buy a product and this is what it must be.
“It is that second clause, the ‘and this is what it must be,’ very specifically that runs into constitutional challenges.
The bill is very specific in what kind of health coverage you and every single American must have, and if you don’t purchase what the government mandates that you purchase, then guess who enforces it? The IRS.
“This law is bad on all sorts of counts. As a physician, I can tell you that it harms access, it increases the cost of healthcare, it harms the quality of healthcare and it certainly decreases choices for the American people.”
Some supporters of Obamacare argue that if the government can mandate auto insurance, it can mandate health insurance. But opponents counter that the federal government doesn’t mandate auto insurance, the states do, and the states are also free to mandate health insurance while the federal government is not.
Others note that driving a car is considered a privilege, and not a natural right protected by the constitution. The state, therefore, can require a person who wants such a privilege to purchase insurance.
Opponents also stress that while current precedent allows Congress to regulate “economic activity,” with Obamacare, Congress has taken the extraordinary step of regulating inactivity — not buying insurance.
Another question before the Supreme Court is “severability” — whether other parts of Obamacare can be allowed to stand if the individual mandate provision is struck down.
Florida District Court Judge Roger Vinson stated that the individual mandate is absolutely fundamental to the bill’s structure, and if it goes, so does the rest of the act.
The Heritage Foundation’s constitutional law expert, Todd Gaziano, agrees: “When the heart of the act is torn out, the rest of the statue will fall.”
Former Arkansas Gov. Mike Huckabee also agrees that the entire bill should be scrapped.
“I look at this healthcare bill as a big bowl of stew, and at this point the Supreme Court may say there’s some tainted meat in that stew that we’re going to take out. I don’t know, if you take the tainted meat out, if anybody would still want to eat it,” he said. “Let’s start with a clean pot, some fresh meat, and let’s make this stew all over again. That’s what we need to do with the healthcare bill.”
Cuccinelli declared, “This would never have become law without the individual mandate — that’s very clear.”
Economist Robert Reich, a former secretary of labor, feels that regardless of constitutionality, the PPACA can’t survive without the individual mandate. “Only if everyone buys insurance can insurers afford to cover people with pre-existing conditions, or pay the costs of catastrophic diseases,” said Reich.
Supreme Court Justice Antonin Scalia made his view on the matter clear during oral arguments in March: “My approach would be if you take the heart out of the statute, the statute is gone.”
The Supreme Court will also rule on whether it is constitutional for the PPACA to force the states to greatly expand their Medicaid coverage, which opponents of the bill say constitutes “coercion.”
In sum, the Obamacare law is a bad law that adds new regulations, new bureaucracies, and new taxes without addressing the underlying problems of our medical system: skyrocketing costs, systemic insurance and Medicare fraud, and a failure to employ free-market programs like Health Savings accounts.
The League of American Voters strongly encourages the Supreme Court to use its vested power to declare the law fully unconstitutional and void.
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