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Obamacare challenge moving back toward Supremes

The battle over Obamacare already has been to the U.S. Supreme Court, where the justices determined it was a legitimate tax, and back, but the biggest government takeover of private information and decision-making that probably ever has happened isn’t over yet.

That’s from Mathew Staver, of Liberty Counsel, who is representing Liberty University and others in arguments that are scheduled May 26 before the 4th U.S. Circuit Court of Appeals.

That hearing is being held on the instructions of the Supreme Court, which earlier ruled that Obamacare was constitutional.

However, Staver is arguing that Congress simply doesn’t have the authority to impose some of the requirements it adopted when Democrats strategized to push it into law during a lame-duck session.

“The employer mandate, unlike the individual mandate, does impose a heavy burden upon employers. … If Liberty University does not provide insurance coverage, it will be fined $2,000 per employee per year, resulting in millions of dollars of penalties. Even if Liberty provides insurance, but refuses to provide any portion of the preventive coverage mandate (including abortifacients and IUDs), it will still be penalized $2,000 per year for every one of its ‘full time equivalent” employees,” he said.

“Liberty University cannot, as a matter of religious conviction, provide any coverage, direct or indirect, for abortion-inducing drugs or IUDs. This refusal will result in millions of dollars in fines annually. The act coerces Liberty to violate its religious convictions under penalty of enormous fines. These excessive fines constitute an impermissible penalty,” he said.

While the Supreme Court last year ruled on Obamacare, it left several of the questions about the program unanswered. Liberty University said it had a right to have those litigated, and the Supreme Court agreed, resulting in the pending case.

There have been a multitude of so-far successful lawsuits by various companies, schools and interest groups against Obamacare’s massive takeover of the health care of Americans. Several judges have issued injunctions against its enforcement already.

But the Liberty Counsel challenge to Obamacare is described as the most comprehensive case pending because it challenges the employer mandate that companies must provide abortifacients or pay a penalty, the abortion mandate for religious employers, the abortion mandate for individuals and the entire law because tax bills must originate in the House.

The organization’s final brief before oral arguments next month now has been submitted.

“Obamacare represents a frontal attack to religious freedom. Obamacare is a train about to collide with the fundamental right to free exercise of religion,” said Staver. “Not only does Obamacare violate the rights of religious employers because of its abortion mandate, it violates the rights of individuals who oppose abortion and the rights of all employers, religious or not.”

Additionally, Liberty Counsel told the court that because Obamacare was classified as a tax, it violates the Origination Clause of the Constitution, which requires all tax laws to originate in the House.

Obamacare originated as House Resolution 3590, the Service Members Home Ownership Act. But after passing the House, Senate President Harry Reid simply removed its contents and title, replacing it with a new title and more than 2,000 pages of Obamacare.

“H.R. 3590 was not originally a bill for raising revenue,” Staver said. “This is the first time that the gut-and-amend practice has been used by the Senate to impose new taxes. Our Founding Fathers wrote the Origination Clause because they wanted to keep the power to tax as close to the people as possible. Even after the 17th Amendment passed, allowing for the direct election of senators, the Origination Clause was preserved to keep the ‘power of the purse’ closer to the people, through their elected representatives.

“Obamacare cannot originate in the Senate and is therefore invalid.”

Staver earlier explained that the whole argument changed when the Supreme Court ordered the 4th Circuit to consider the case.

Staver said the university will clearly state that all abortions – whether chemically induced by drugs shortly after conception or performed in an abortion clinic – are equally reprehensible to many people of faith.

“God created human life. Its sanctity and dignity are protected by God,” Staver said. “We have no right to take innocent human lives, and certainly we cannot be forced to fund the taking of innocent life – basically forced to fund murder. We can’t do that. That’s a line that we simply cannot cross.”

There is no middle ground in this fight, according to Staver. He said if this law is upheld, people will have to choose between obeying the law and adhering to their faith.

“Either you follow your conscience and your free exercise of religious convictions and you disobey the law, or you obey the law and you disobey your conscience and your free exercise of religion,” he said. “There’s no in-between. This is a direct collision with the free exercise of religion that’s unprecedented in the scope of our history.”

Staver noted that the case probably will end up back at the Supreme Court, with a final verdict probably coming in the first half of 2014.

The pleading submits that the court already has made some correct determinations.

Quoting from last year’s decision, which concluded Obamacare was proper because it is a tax, the pleading said, “Congress’ enumerated powers must be ready carefully ‘to avoid creating a general federal authority akin to the police power.’ … The court found the individual mandate exceeded Congress’ authority under the Commerce and Necessary and Proper Clauses. This court should find the same regarding the employer mandate.

“The employer mandate cannot be upheld as a permissible tax as applied to nonprofit organizations such as Liberty University, which is designated as a tax-exempt organization… Nowhere does the act indicate congressional intent to amend the nonprofit tax code. Nothing in the tax code permits a nonprofit to be taxed for failure to provide ‘essential’ or ‘affordable’ health insurance,” the brief said.

Last year’s opinion said “Congress ‘does not have the power to order people to buy health insurance'” and that applies to employers too, Liberty argues. “Just as Congress has no authority under the Commerce Clause to force individuals ‘to purchase an unwanted product,’ … so Congress lacks authority to force employers to purchase an unwanted product under the guise of regulating ‘the terms and conditions of employment.’

“The insurance mandates threaten plaintiffs’ sincerely held religious beliefs, an interest of thet ‘highest order’ which must be analyzed utilizing strict scrutiny, which the administration cannot satisfy,” it said.

The briefing also points out the Obama administration has set it up so that different religious groups are treated differently under the law – a violation of the Equal Protection and Establishment Clauses, and several of the Obama arguments in the case are simply “meritless.”