Almost before the ink dried on the president’s signature of the Patient Protection and Affordable Care Act, lawsuits arose alleging that the measure known as Obamacare – and particularly its mandate that individuals purchase health insurance – is unconstitutional.
But now that the Supreme Court has agreed to hear a case brought by 26 states challenging Obamacare, several legal organizations are pointing out that there are even more constitutional problems with the law than just the individual mandate.
Earlier today, for example, the Alliance Defense Fund filed a friend-of-the-court brief with the U.S. Supreme Court arguing Americans should not be compelled by Obamacare to pay for other people’s elective abortions.
“No one should be forced to violate their conscience by paying for abortions, but that’s precisely what Obamacare does,” said ADF Senior Counsel Steven H. Aden in a statement. “Obamacare requires that employees enrolled in certain health plans pay a separate insurance premium specifically to pay for other people’s elective abortions and offers no opt-out for religious or moral reasons. Such a mandate cannot survive constitutional scrutiny.”
“The drafters of the Act sought to include, for the first time in our nation’s history, health plans that cover elective abortion within the government-subsidized insurance exchanges,” the brief states. “Due to the public uproar, the drafters devised a scheme to avoid the direct federal funding of abortion. This goal of avoiding the use of tax-payer subsidies for abortion coverage was unfortunately achieved by a means that violates the First Amendment; namely, by compelling the taxpayer to personally pay a separate abortion premium.”
ADF filed the brief in cooperation with numerous legal and medical groups, including the Bioethics Defense Fund, Becket Fund for Religious Liberty, Americans United for Life, Life Legal Defense Foundation, the American College of Pediatricians, Christian Medical and Dental Associations, American Association of Pro-Life Obstetricians and Gynecologists, Catholic Medical Association, Physicians for Life, National Association of Prolife Nurses and Medical Students for Life of America.
Mathew Staver, founder and chairman of Liberty Counsel, which has filed briefs challenging Obamacare on two fronts, explained in a statement that the administration has already revealed how its plans for overhauling health care create constitutional crises.
“The blatant disregard for religious liberty evidenced by the recent directive that religious organizations and their insurance carriers provide contraceptives and abortifacients illustrates the constitutional problem with Obamacare,” Staver said. “Congress does not have the authority to force law-abiding citizens to buy health insurance. President Obama’s view of government is frightening, because he apparently thinks his abortion agenda trumps religious liberty. Obamacare is a dangerous overreach of the federal government. If allowed to stand, the liberty of every American could be arbitrarily overridden by federal bureaucrats.”
Supreme Court decision delayed until 2017?
Liberty Counsel’s briefs have challenged not only the individual mandate but also the application of a 19th century law that could delay the Supreme Court’s ruling on Obamacare years after it’s already implemented.
Under the 1867 Anti-Injuction Act, or AIA, a person who owes money under a revenue-raising tax provision cannot file a lawsuit to prevent collection of a tax. The person must first pay the tax and then file a lawsuit to challenge the tax’s legality.
Therefore, if the Supreme Court concluded that the penalty for non-compliance with the individual mandate is a “tax,” it would be barred from deciding the constitutionality of the mandate until after someone paid it.
The individual mandate currently in Obamacare takes effect Jan. 1, 2014. For a person refusing to purchase health insurance, his penalty must be paid at the time his federal income taxes are due: April 15, 2015. Only then could the mandate “tax” be challenged, meaning his case may not finally reach the Supreme Court until about 2017.
The American Center for Law & Justice has filed three briefs challenging Obamacare: One on behalf of a reported 119 members of Congress and 145,000 Americans challenging the individual mandate, another on behalf of 117 members of the House and over 100,000 Americans arguing the mandate cannot be stricken from Obamacare without toppling the entire law and a third arguing against the application of AIA to delay decision on Obamacare’s constitutionality.
“The AIA does not apply to the health-care law,” said Jay Sekulow, chief counsel of the ACLJ in a statement. “The AIA applies to truly revenue-raising tax statutes, which the individual mandate and its penalty are not. We urge the high court to conclude that the AIA does not apply to ObamaCare and request the Justices find the entire health care law – including the individual mandate – unconstitutional.”
A long line of unconstitutional abuses
Finally, the Liberty Legal Foundation, or LLF, has taken another tack altogether, arguing that Obamacare is only the latest in a long line of federal overreaches, all stemming from a 1942 Supreme Court decision that virtually eliminated any restraint on the government’s use of the Commerce Clause.
“Rather than argue about whether the individual mandate goes ‘too far’ under current Commerce Clause precedent, we argue that the Commerce Clause was grossly misinterpreted under the 1942 precedent of Wickard v. Filburn,” an LLF statement argues. “We urge the Court to correct a 70-year mistake and overturn Wickard v. Filburn.”
The 1942 ruling, indeed, opened the door to vast, new federal involvement in business and industry. The court ruled the government’s constitutional interstate commerce powers could be used to regulate how much wheat farmer Roscoe Filburn could grow, because wheat was traded nationally and therefore Filburn’s “excessive” production was allegedly affecting interstate commerce.
LLF argues its brief “proves the link between Wickard and uncontrolled growth in the federal government.”
“The statistics are shocking,” LLF asserts. “They include a 15,474-percent increase in per-citizen annual federal spending and a 26,586-percent increase in national debt. There are 16 times as many federal regulations as there were at the time of Wickard. The number of federal agencies [has] increased from 97 in 1942 to 529 today. All of this started immediately after the Supreme Court’s Wickard decision.
“We remind the Court of the drastic shift Wickard represented by reviewing what the legal standard was for the first 150 years of our nation’s history,” LLF continues. “Our brief then explains why every court that has reviewed the individual mandate has been unable to find reasonable limits on Congressional authority under Wickard: Because there are none! We then show the Court how it could easily return to pre-1942 limits on Congressional authority.”
LLF reports the Supreme Court has accepted and will review its friend-of-the-court brief in the Health and Human Services v. Florida controversy over Obamacare. The Supreme Court is expected to hear oral arguments on the case next month.