Business Owner Says Thanks To Obama And Health Care Reform, I’m No Longer Paying For My Employees’ Insurance

Business Insider:  “For 15 years, I have taken pride in paying the full cost of health insurance for every full-time Palisades Hudson employee who wanted it. This month marks the last time I will do that. . . . I wrote in this space in March that the Affordable Care Act, which was enacted later that month, is likely to make health coverage anything but affordable for those who actually pay the bills. I have no desire to stand next to the tracks in order to watch this train wreck unfold at close range.”

Obamacare Lawsuits Information Resource

If you are interested in keeping up with the numerous lawsuits that challenge the constitutionality of Obamacare, check out Health Care Lawsuits.  Another good resource is the “aca litigation blog” that says it is “a place to find news updates, legal analysis, and all official documents related to the states’ constitutional challenges to the Patient Protection and Affordable Care Act (as amended by the Health Care and Education Reconciliation Act of 2010).

Amicus Brief in the Virginia Case Challenging the Constitutionality of the Obama Health Care Plan

Ilya Somin, Associate Professor of constitutional law at George Mason University School of Law, published his “amicus brief in Virginia v. Sebelius, one of the cases challenging the constitutionality of the Obama health care plan’s individual mandate . . . I hope the brief will help dispel the myth that there is an expert consensus to the effect that the mandate is constitutional (see also here).  It should by now be obvious that many well-known and highly respected scholars believe otherwise”

See Ilya Somin’s post on his amicus brief on The Volokh Conspiracy.

Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional

Georgetown law Professor Randy E. Barnett has written a scholarly article called “Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional.”  Here’s the abstract:

The “Patient Protection and Affordable Care Act” includes what is called an “individual responsibility requirement” or mandate that all persons buy health insurance from a private company and a separate “penalty” enforcing this requirement. In this paper, I do not critique the individual mandate on originalist grounds. Instead, I explain why the individual mandate is unconstitutional under the existing doctrine by which the Supreme Court construes the Commerce and Necessary and Proper Clauses and the tax power. There are three principal claims.

First (Part II), since the New Deal, the Supreme Court has developed a doctrine allowing the regulation of wholly intrastate activity: the substantial effects doctrine. Although commonly conceived as a Commerce Clause doctrine, from its inception this doctrine has been grounded in the Necessary and Proper Clause. In the 1990s, the Supreme Court developed a judicially administrable test for whether it is “necessary” for Congress to reach intrastate activity that substantially affects interstate commerce: the distinction between economic and noneconomic intrastate activity. Because the individual mandate fails to satisfy the requirements of this test as understood under existing doctrine, it exceeds the power granted to Congress by the Commerce and Necessary and Proper Clauses as currently construed by the Supreme Court. The mandate also fails to satisfy an alternative to the substantial effects doctrine that was proposed by Justice Scalia in a concurring opinion.

Second (Part III), because the “individual responsibility requirement” purports to be a regulation of commerce and cannot possibly be construed as a tax, it is not justified under the tax power of Congress; and, if the “requirement” or mandate is an unconstitutional regulation, there is nothing for the “penalty” to enforce. Neither is the penalty, considered apart from the regulatory requirement, a tax under current doctrine.

Third (Part IV), the Supreme Court should not further expand Congress’s power beyond existing doctrine to allow it to mandate that individuals engage in economic activity by entering into contracts with private companies. Such economic mandates are directly analogous to the commandeering of the states that the Supreme Court has held to be an improper exercise of the commerce power. The very few mandates that are imposed on the people pertain to their fundamental duties as citizens of the United States, such as the duty to defend the country or to pay for its operation. A newfound congressional power to impose economic mandates to facilitate the regulation of interstate commerce would fundamentally alter the relationship of citizen and state by unconstitutionally commandeering the people.

In Part V, I conclude with a “realist” assessment of likelihood that the Supreme Court will actually find the mandate to be unconstitutional.

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