Silver Linings in the Ruling on Obamacare


ACRU Staff


July 15, 2013

This column by ACRU Senior Fellow Robert Knight was published July 15, 2013 on The Washington Times website.

In the latest court ruling upholding Obamacare, a three-judge federal panel in Richmond, Va, last Thursday rejected Liberty University’s challenge to both the individual mandate and the employer mandate to provide health insurance.

There are silver linings here, and we’ll get to them in a minute. First, let’s look at the case.

Eyebrows were raised a few months ago when Attorney General Eric H. Holder Jr.’s Justice Department said it had no problem with the U.S. Supreme Court sending Liberty’s challenge to Obamacare back to the 4th U.S. Circuit Court of Appeals, which had declined to rule on the merits of the case, citing a lack of jurisdiction.

Two of the three judges on the panel were appointed by President Obama and the other by Bill Clinton. If the federal judiciary weren’t so politicized, making up laws as they go along, this would not be an issue. I think it’s worth mentioning, though.

The 62-page ruling, among other things, says the employer mandate is justified under taxing power and also under the Commerce Clause.

That’s the clause in the 1942 Supreme Court ruling in Wickard v. Filburn that the feds cite to intervene if you grow wheat on your own land to feed your animals. If that’s interstate commerce (because the wheat was withheld from possible interstate sales), then forcing you to buy health insurance that you don’t want doesn’t seem like a stretch for courts accustomed to expanding federal power.

However, in FNIB v. Sibelius (2012), which upheld Obamacare under Congress’ taxing power, Chief Justice John G. Roberts Jr. wrote for the majority that neither the Commerce Clause nor the Necessary and Proper Clause could be used to validate the individual mandate. Justice Roberts wrote that the Commerce Clause “authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”

A joint dissent, meanwhile, written by Justice Antonin Scalia, warned darkly that such misuse of the clause could “enable the Federal Government to regulate all private conduct” and “make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”

That is exactly why big-government liberals want so badly for the courts to adopt the expansive Wickard v. Filburn view of the Commerce Clause, which the 4th Circuit panel did in spades. Literally hundreds of liberal groups and individuals, including many members of Congress, filed briefs opposing Liberty. On the other side of this showdown, 19 pro-family and conservative organizations, including the American Civil Rights Union, filed in support of Liberty.

In their ruling, the Gang of Three briskly dismissed Liberty’s stated concerns that millions of dollars in fines for noncompliance would financially cripple the Christian university. The judges also rejected Liberty’s claim that the mandate, coupled with a requirement to provide coverage of some sort for abortions, violated the university’s religious freedom under the First Amendment.

Now for the silver linings: The court actually agreed with Liberty on the procedural issues, which clears the way for an appeal to the Supreme Court, which Liberty Counsel Chairman Mathew Staver has promised.

The other silver lining is that the court’s hostility to Liberty’s reasonable claim of religious discrimination should give the U.S. House of Representatives ample incentive to use its power of the purse to defund Obamacare.

The House has passed more than 30 measures repealing Obamacare, knowing those bills would predictably die in Harry Reid’s Senate. Now they need to exercise their main power–appropriations–which must begin in the House, according to Article I of the Constitution.

They can do this the next time Mr. Obama comes to them for yet another gulp of the fiscal hard stuff that would send us deeper into debt despite the dreaded “sequestration.” In the Senate, Texas’ Ted Cruz and nine other GOP co-sponsors have introduced a bill that defunds Obamacare. This is what the House needs to do.

It helps a lot that the Obama administration announced a one-year delay to implement the employer mandate until after the 2014 elections. They admitted that the thing is oppressive, unworkable and will cost even more jobs than it has already. OK, they didn’t put it that way, but that’s the reality.

Nearly every day, a new report, waiver, exemption or policy change emerges, showing that Obamacare is, as retiring Montana Democratic Sen. Max Baucus put it, a “huge train wreck coming down” if the administration doesn’t get a half-billion dollars for PR to sell it to the American people. Actually, it’s a train wreck, period.

This is a golden opportunity for another major political correction. It was in 2010, after Obamacare was enacted, that the Tea Party-led opposition fueled a political sea change not seen since the 1920s, with the GOP capturing the House, a majority of governorships and thousands of state and local offices. The galvanizing issue was Obamacare, and the newly minted House majority solemnly swore to “repeal and replace” the whole mess.

It’s time the House lived up to that promise.

The next time that Obamacare or a section thereof comes up for funding, there will be a chance for House members to step up to the plate and do the right thing. Just cutting the budget somewhat by reducing the PR money won’t be enough. The House must spit in the eye of Democratic threats to shut down the government.

Those who vote to continue the federal takeover of one-sixth of the nation’s economy should find that their party’s primary system has become a minefield.

For some, it could even function as a political death panel.



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