Jay Sekulow

Faith & Justice


Constitutional Concerns About ObamaCare

posted by Jay Sekulow

May 16, 2011

There’s virtually total agreement in the legal community that the constitutionality of ObamaCare – the government-run health care law passed by Congress and signed into law by President Obama – will be decided by the U.S. Supreme Court.

Where’s the plenty of disagreement:  what will the nation’s highest determine?

At the center of the issue is the individual mandate provision, which forces Americans – under penalty of law – to purchase health insurance.

That is where most of the legal challenges originate, including one from the ACLJ.  Today, we filed a brief at a federal appeals court in Washington, DC urging the court to reinstate our federal lawsuit and declare the entire health care law unconstitutional.

Our lawsuit, along with a number of others – including separate legal challenges by Virginia and Florida – focus on the assertion that the individual mandate violates the Commerce Clause of the U.S. Constitution. Nothing more than a brazen power-grab by Congress.  A move that is not only wrong, but unconstitutional.

That’s what we argued in our brief filed on behalf of four U.S. residents and taxpayers in at the U.S. Court of Appeals for the District of Columbia Circuit.

“The individual mandate is unconstitutional because it exceeds even the outermost bounds of Congress’s Article I authority and is inconsistent with the constitutional system of dual sovereignty that divides power between the federal and State governments,” the brief contends. “Under the Commerce Clause, Congress cannot ‘regulate’ inactivity by requiring individuals to buy a good or service as a condition of their lawful residence in the United States. . . .”   Our brief is posted here

And, that’s exactly what the Commonwealth of Virginia argued just days ago – before the 4th U.S. Circuit Court of Appeals – at a hearing where the federal government tried to convince a three-judge panel (two judges appointed by Obama, one by Clinton) that a lower court got it wrong when it declared that the individual mandate had to go.

You can listen to the oral arguments here

And, in an interview with Fox News, Virginia Attorney General Ken Cuccinelli correctly concluded that this case is about liberty, not health care.  As he put it, if the federal government can order you to purchase health insurance, it can order you to buy anything.

Watch the interview here.

As these challenges move forward, one thing is certain:  all legal roads end up at the Supreme Court.  Our case is before the DC court of appeals.  The Virginia case at the 4th circuit.  And, the Florida case before the 11th circuit.

You will certainly hear more about these legal challenges in the weeks and months ahead.  But the real media attention will begin when these appeals arrive at the U.S. Supreme Court.

You’re already hearing a lot of talk about 2012 – especially when it comes to presidential hopefuls.  Put 2012 on your calendar for another reason, too.  That’s when the nation’s highest court is likely to render its decision – either declaring ObamaCare constitutional – or striking it down.  Just in time for the election.

Stay tuned.



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