Obamacare challenged as 'forcible economic rape'

Obamacare, Barack Obama's signature health-care takeover plan, would override any "religious, moral, or practice scruples" held by Americans in what a legal brief is describing as a "forcible economic rape."

The brief has been filed with the U.S. Supreme Court, which is to consider the constitutionality of the administration's demands that consumers buy government-picked health care insurance or pay massive penalties.

The complicated plan – famously touted by then-House Speaker Nancy Pelosi as a bill that would have to be adopted so that citizens could know what was in it – continues to be a source of conflict.

Christians from a wide variety of traditions recently have expressed outrage over Obama's demands that they pay for birth control they say causes abortion. Obama responded with statements that such services and products will be provided to women "for free" by insurance companies even while the various Christian interests and employers are billed for the health care coverage.

The new brief challenging the constitutionality of Obama's Patient Protection and Affordable Care Act was filed by attorneys attached to the office of William J. Olson as well as Gary Kreep of the United States Justice Foundation.

The brief represents Virginia Delegate Bob Marshall, Virginia Sen. Dick Black, Oklahoma Rep. Charles Key, the Institute on the Constitution, U.S. Justice Foundation, Gun Owners Foundation, The Lincoln Institute for Research and Education, The United States Constitutional Rights Legal Defense Fund, Inc., Conservative Legal Defense and Education Fund, Policy Analysis Center, Downsize DC Foundation, Gun Owners of America, Inc., The Liberty Committee, Public Advocate of the United States, American Life League, Inc. and others.

"Purporting to be an exercise of Congress' Commerce Clause power, this law goes beyond any prior congressional exercise of the commerce power, mandating that individuals purchase private insurance, overriding any religious, moral, or practical scruples that they may have," the brief argues.

"The government believes that this law is fully justified under this Court's Commerce Clause jurisprudence, particularly relying on United States v. Darby and Wickard v. Filburn. These revolutionary Supreme Court decisions cast aside settled constitutional doctrine for reasons of political expediency in the wake of President Franklin D. Roosevelt's threat to pack the court. The time has come that they should be re-examined and overturned, lest Congress conclude that it can compel whatever behavior it believes would make us a more healthy people – leading us to a totalitarian state where everything not prohibited is mandated," it continues.

"In conducting its re-examination of its Commerce Clause jurisprudence, this court should return to the text of the Constitution as 'the supreme Law of the Land' giving no deference to its own decisions, rather examining the issue afresh. Such an examination demonstrates that the individual mandate is not an exercise of power to regulate interstate commerce. The individual mandate is not regulation of voluntary commercial intercourse; it is more akin to forcible economic rape," it says.

The brief asserts the administration's vast grab of authority and power over American citizens violates freedoms protected under the Constitution.

"The government attempts to justify its individual mandate as being a constitutionally permissible means of regulating interstate commerce, as a law which is a 'Necessary and Proper' means to achieve a legitimate end. However, the government admits the purpose of PPACA is to 'expand access to health care' – making it a social welfare program designed to achieve a moral objective – a power not constitutionally authorized. The Commerce Clause does not empower Congress to adopt a national health care policy. Under the government's theory, the combination of the Commerce Clause and the Necessary and Proper Clause becomes a pretext to confer on Congress ageneral police power which it was never intended to have," the brief states.

"PPACA is designed to put the government into the health care insurance business. The ramifications of this coercive measure are just now being felt with mandates for abortifacient contraceptives, converting the federal government into the master over the bodies and the morals of a heretofore sovereign people. There was a time that members of Congress took their oath to the Constitution seriously, becoming students of the Constitution. Often, argument on complex constitutional issues in the halls of Congress rivaled the work of advocates before the Supreme Court. However, during congressional consideration of the Patient Protection and Affordable Care Act, few, if any, members of Congress even claimed to have read H.R. 3590 – a 1,928 page bill – before voting on it."

The brief points out that Pelosi, when asked about the constitutional authority for the bill, demanded: "Are you serious? Are you serious?"

"[Pelosi's] reply bespoke the common assumption that Congress' powers under the
Commerce Clause are virtually unlimited. That view would have ample support in the decisions of this court. Indeed, Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit characterized modern Commerce Clause decisions as follows: '[Y]ou wonder why anyone would make the mistake of calling it the Commerce Clause instead of the 'Hey, you-can-do-whatever-you-feel-like Clause?' [A. Kozinski, 'Introduction to Volume Nineteen,' 19 HARV. J.L. & PUB. POL'Y. 1 (1995).] Ten years later, in Gonzales v. Raich, 545 U.S. 1 (2005), with respect to federal regulation of marijuana that had never been sold, had never crossed state lines, and had no effect on the national market, Justice Thomas observed in dissent: 'If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything ... quilting bees, clothes drives, and potluck suppers throughout the 50 states.'"

But that view of virtually unlimited Commerce Clause authority is mistaken, the brief argues, a result of decisions that were politically influenced earlier. Those decisions, giving the government vast authority, came in the 1940s when President Franklin D. Roosevelt threatened to add justices to the court's bench to stack it with those who would give him what he wanted.

"The principle of stare decisis should not impede a regular return to the constitutional text – particularly in a case such as this which has generated so much public opposition and controversy," the attorneys explain.

"These amici urge this court in this historic case to opt to re-examine its Commerce Clause jurisprudence under the actual text of the Commerce Clause. Indeed, on two important recent occasions in which these amici have been involved, this court has demonstrated its willingness to go beyond an inquiry into decisional 'law,'" the brief said.

One case was District of Columbia v. Heller in 2008, when the court "parsed the [2nd] Amendment in a search for meaning."

"In the end, the court's decision was guided by the constitutional text, not modern 'case law.'"

It's important, the amici brief participants note, to remember that it is the Constitution, "not this court's opinions and Congress' laws" that are the law of the land.

"Traditionally, the decision of whether to purchase a product is an individual one, based upon numerous factors, only one of which is affordability. Not so, however, under the new scientific management system implemented by PPACA. Under PPACA's collectivist health care service system, almost everyone must participate as a buyer in the market, and the secretary is given the executive power to establish and solidify the government's newly established monopoly.

"What appears to be modern and enlightened, however, is feudal and enslaving. Under PPACA, the government acts as if it is a sole monopolistic proprietor, empowered to exercise virtual ownership of both sellers and buyers of health care insurance in a market in which the government determines the demand for health care insurance, sets the terms and price, and keeps out the competition."

The pending Supreme Court hearing is the culmination of opposition to Obamacare on a number of fronts since before it was rammed through Congress after back-room deals and manipulation.

There have been numerous lawsuits challenging the health-care takeover, but the case on which the high court is acting is one brought by 26 states and other interests challenging Obamacare for its demands that people participate in "interstate commerce" even if they do nothing but sit alone in their own living rooms.

A long list of other organizations and groups also have filed briefs in the Supreme Court challenging Obamacare's legitimacy.