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President Obama signing health-care reform bill at the White House (White House photo)

The newest legal brief in a court challenge to “Obamacare,” the president’s nationalization of health care, says the Constitution simply doesn’t allow the federal government to demand a payment for not doing something.

The case was brought by the Thomas More Law Center on behalf of several individuals.

It challenges the government’s plan to force individuals to buy health-care insurance and pay for abortions, among other issues, or be penalized. It was brought in the U.S. District Court for the Eastern District of Michigan and seeks an injunction to halt the plan.

Named as defendants in the lawsuit are President Obama, Health and Human Services Secretary Kathleen Sebelius, U.S. Attorney General Eric Holder and Treasury Secretary Timothy Geithner.

In a brief in support of their request for a preliminary injunction, the plaintiffs argue that there’s not even any dispute.

“This case is about the fundamental relationship between the power of the federal government, which is limited by the Constitution, and the liberty interests of those it governs,” said the brief, filed just days ago. “Defendants’ explanation of the national health care problems this country is facing and the efforts by the federal government to provide solutions to them through the Health Care Reform is, at the end of the day, beside the point.

“No matter how convinced defendants may be that the challenged Health Care Reform Act is in the public interest, their political objectives can only be accomplished in accordance with the Constitution.”

The brief said, “Defendants’ arguments ultimately claim for the federal government the power to force all Americans … to engage in a commercial transaction in which they otherwise would not engage. … Defendants do not – because they cannot – refute plaintiffs’ claim that if the federal government does possess such power, then it also has the power to force private citizens ‘to engage in [other] affirmative acts, under penalty of law, such as taking vitamins, losing weight, joining health clubs, buying a GMC truck, or purchasing an AIG insurance policy.’”

The case was launched by the Thomas More Law Center and attorney David Yerushalmi as soon as Obama signed the legislation March 23. Robert Muise, Thomas More’s senior trial counsel, and Yerushalmi have worked on the legal arguments.

The original complaint asserts the health-care reform law imposes unprecedented governmental mandates that trample on the personal and economic freedoms of Americans in violation of their constitutional rights.

It also alleges Congress had no authority under the Commerce Clause to pass the law and that by usurping the power reserved for the states and the people, Congress violated the Tenth Amendment.

The lawsuit also contends that by forcing private citizens to fund abortion, contrary to their rights of conscience and the free exercise of religion, Congress violated the First Amendment.

The newest brief cited the dangers of the government’s line of thinking in the case.

“Further troubling is defendant’s suggestion that ‘unelected judges’ should refrain from ‘pass[ing] upon the validity’ of the act,” the argument said.

The brief argues that the federal government in the U.S. simply does not have the power to “fundamentally change the structure of our Constitution in order to advance legislation they perceive is in the public interest.”

The brief also tries to shoot a hole in the government’s argument that health care always is commercial activity.

“Defendants argue that when plaintiffs sit at home and do not engage in the regulated economic activity, plaintiffs are in reality engaging in precisely the economic activity in which they have not engaged,” the brief said.

“We are led to believe that this imputed mental decision morphs into an activity that is defined by defendants as ‘the act not to purchase health insurance,’” the brief said. “But neither defendants nor Congress have the metaphysical power or authority to magically convert non-activity into activity.”

That’s not the end, either.

“The congressional inferences, however, do not end here. Thus, once the imputed mental choice not to purchase health insurance is converted into an affirmative economic decision and this imputed decision somehow morphs into an actual act akin to purchasing something, only then does Congress impose the additional inferences that this individual belongs to a class of individuals who will (1) use the health care system and (2) nonetheless unfairly exploit the health care system by either not paying for health care or health insurance or by paying below market rates.

“In fact, the inferences here piled one on top of another do not consist of only a chain of inferred causal relationships, but per force begin with the metaphysical conversion of a non-act – an imputed decision – into a specific activity called ‘a choice regarding the method of payment,’” the brief argues.

The brief explains it really doesn’t matter what Congress wants sometimes.

“Whatever value such congressional findings might have in the academic world of economic theory, they have neither de facto nor de jure power to change reality or to re-write the Commerce Clause.”

“Our Founding Fathers sought to limit the federal government’s powers to those specifically enumerated in the Constitution. … If Congress can effectively re-write the Commerce Clause and grant itself the authority to reach all sorts of purely local activity, and indeed to reach non-activity, by simply crafting some regulatory scheme and issuing a finding of ‘essentiality,’ Congress will actually be incentivized to create intrusive regulatory schemes as constitutional cover for naked power grabs. This stands the enumerated powers doctrine on its head.”

The brief suggests the most effective way to handle the dispute would be to advance the trial on the merits of the claims with a hearing on a preliminary injunction.

“Our lengthy and detailed reply to the government’s defense of the Health Care Reform Act demonstrates the weakness of the government’s superficial arguments,” Muise said.

According to a Washington Watch report at MedPageToday, the government had told the judge the case should be dismissed because the penalties aren’t taking effect immediately, so the plaintiffs “demonstrate no current injury.”

The Thomas More Law Center case against the president was brought on behalf of four individuals, Jann DeMars, John Ceci, Steven Hyder and Salina Hyder. They explained they currently are uninsured and do not plan to buy health insurance. They will be harmed by the government’s new penalties, they assert.

Besides a clear problem with the Commerce Clause if the government is allowed to demand residents purchase health insurance, the new law also conflicts with the First Amendment’s conscience and free expression of religion provisions as well as the Fifth Amendment’s equal protection provisions, the case alleges.

It is the court, the case explains, that is “a guardian of those fundamental liberties, and it possesses the constitutional authority to enjoin government acts that tread upon them.”



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