Last Stop for Obamacare Before Supreme Court


ACRU Staff


June 8, 2011

This column by ACRU Senior Legal Analyst Ken Klukowski was published June 7, 2011 on The Washington Examiner website.

Obamacare is likely facing its last stop before it heads to the Supreme Court in 2012. The U.S. Court of Appeals for the 11th Circuit in Atlanta will hear arguments Wednesday in the biggest Obamacare case in the country.

This is the Obama administration’s appeal in Florida v. U.S. Department of Health and Human Services. It’s the case in which President Obama suffered his most embarrassing defeat at the district court level when Judge Roger Vinson struck down not only the linchpin of Obamacare — its individual mandate — but the entire 2,700-page law with it.

There are several major Obamacare cases across the country, but Florida v. HHS is the biggest. It involves 26 states — represented by Bush-era Solicitor General Paul Clement — the National Federation of Independent Business and a couple of uninsured individuals — represented by Supreme Court lawyers Michael Carvin and Gregory Katsas.

Arguing the president’s case is his top Supreme Court lawyer, acting Solicitor General Neal Katyal.

There are two main issues in this appeal. The first is that the requirement that almost all Americans buy and maintain health insurance in 2014 — the “individual mandate” — is challenged in this case as it is in almost all of the Obamacare lawsuits across the nation.

This mandate is an unprecedented claim of unlimited federal power. If government can command you to buy insurance, it can command you to do anything.

Instead, our Constitution creates a government of enumerated powers, under which every federal action must be authorized by one or more provisions of the Constitution.

Knowing this, the administration argues that the individual mandate is authorized by Congress’ power to regulate interstate commerce. If you disagree, they say it’s authorized as a tax. If you don’t buy that either, then they say it’s authorized by the Necessary and Proper Clause.

As I discuss in my new book, Resurgent, all of these arguments are wrong. The Commerce Clause regulates economic activity. It’s never been asserted to regulate inactivity, or coerce someone into commercial activity.

The Taxing Clause is for when government takes your money to spend from the public treasury, not command you how to spend your own money. And the Necessary and Proper Clause only allows government to carry out its enumerated powers, not to do anything it wants that’s not found elsewhere in the Constitution.

The second issue is that Obamacare massively expands Medicaid, which is a federal program run by the states that’s also partially funded by the states. This expansion is an unconstitutional coercion of the states, going beyond the Constitution’s Spending Clause in violation of the 10th Amendment.

Cash-strapped states will have to foot a full 10 percent of this expansion, an expansion that will cost $434 billion over just 10 years. This goes beyond attaching reasonable conditions on government funding, because the states could go bankrupt if they withdrew from Medicaid.

But the brass ring in this litigation is “severability.” Normally courts only strike down the unconstitutional provisions in a law. But there are rare exceptions where a provision is so central to the statute that it cannot function as Congress intended without it.

The administration acknowledges the individual mandate is the linchpin to Obamacare. The Medicaid expansion is likewise essential. As explained in Resurgent and my court briefs, in striking down either of these, Supreme Court precedent requires striking down the whole statute.

Wednesday’s argument is the last step before the Supreme Court. Whether this case, or other major cases such as the two from Virginia argued in May, or both, Obamacare’s next step likely will be in the Supreme Court before the election.



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