Earlier this week, the U.S. Court of Appeals for the Fourth Circuit heard arguments in Virginia Attorney General Ken Cuccinelli’s challenge to the new healthcare law’s requirement that individuals buy health insurance, the so-called “individual mandate.” (Earlier, a trial judge strike down that requirement as unconstitutional. I earlier explained why the judge should have gone further and invalidated the whole law, since the requirement was logically inseparable from the rest of the law, and the requirement itself was unconstitutional).
The panel of appeals court judges consisted entirely of judges appointed by Democratic presidents. That was an ill-omen for Cuccinelli, since judges have split largely along party lines in their rulings on Obamacare, with judges appointed by Democrats ruling in favor of it, and judges appointed by Republicans largely voting to strike it down. The judges’ questions at oral argument were more sympathetic to the federal government’s lawyer than to the state’s lawyers.
But the individual mandate is not the only provision in Obamacare that violates the Constitution. It also violates the Tenth Amendment and limits on Congress’s power under the Constitution’s Spending Clause, through its massive expansion of Medicaid, which imposes large unfunded mandates on state governments. Florida and two dozen other states argue that Obamacare’s Medicaid expansion provisions are unconstitutionally coercive in violation of the Tenth Amendment under the principles laid down in the Supreme Court’s decisions about the scope of Congress’s spending power in United States v. Butler (1936) and South Dakota v. Dole (1987).
On Wednesday, I filed an amicus brief in support of Florida’s challenge on behalf of a majority of Minnesota’s State House of Representatives and the leaders of the North Carolina and Minnesota legislatures. That brief explains how the healthcare law violates the “clear statement” rule in the Supreme Court’s Pennhurst decision by imposing vague, indefinite, open-ended additional burdens on states, including massive, unpredictable costs in the billions of dollars. (Federal officials have issued over a thousand waivers of burdensome rules imposed by Obamacare, mostly to unions or other entities with political connections. Meanwhile, HHS officials have vastly expanded the reach of other burdensome provisions of the law. For example, they have largely nullified the law’s grandfather clause, which was put into the law to keep Obama’s broken promise to let you keep your existing health insurance if you like it. They also issued a rule rewarding end-of-life counseling, even though such a provision was removed from the bill prior to passage after the so-called “death panels” controversy).
The brief also explains why Obamacare’s individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and is not justified under a “cost-shifting” rationale.
Law Professor James Blumstein, a constitutional and healthcare expert and advisor to former Gov. Phil Bredesen (D-TN), filed an amicus brief arguing that Obamacare violates longstanding contractual principles incorporated into the Constitution’s Spending Clause under Supreme Court rulings. His brief is not yet available online, but some of his argument is available here.
On behalf of the South Carolina Chamber of Commerce, Thomas M. Christina filed a brief arguing that Obamacare “unconstitutionally commandeers state legislatures and executive authorities and renders accountability to the electorate impossible.” In his brief, Tom Christina says that the law “infringes on a constitutionally-protected attribute of the states’ residual sovereignty by explicitly promising individual tax credits directly to members of a state’s electorate if and only if the state establishes” the health insurance exchanges mandated by Obamacare on its own rather than having the federal government create such exchanges. His brief and some other briefs challenging Obamacare are briefly summarized at this link.
Earlier, I filed an amicus brief in the Florida trial court for Governors Tim Pawlenty and Donald L. Carcieri, arguing that the healthcare law exceeds Congressional authority. The Florida trial court struck down Obamacare in its entirety, not just the individual mandate.
Regardless of whether it is constitutional, Obamacare is also harmful to the economy, medical innovation, and the healthcare system. Earlier, I discussed some of the bad effects of Obamacare on patients, employers, consumers, and the insurance market.
