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  • The Big Issues Behind the Obamacare Challenge

    “Are you serious? Are you serious?” then-Speaker of the House Nancy Pelosi (D–CA) famously replied when asked where, specifically, the Constitution granted Congress the authority to mandate that every American purchase health insurance coverage.

    The question was very serious, it turns out, even if Pelosi’s intent was sarcasm. Four federal courts have already struck down Obamacare in whole or in part on constitutional grounds. And now, with the Supreme Court widely expected to take the case in the coming weeks, three of the individuals who proved Pelosi wrong will address The Heritage Foundation on the present and future of Obamacare and constitutional federalism this Thursday at noon.

    At the time that Pelosi spoke, just two years ago, her incredulity was hardly atypical. The Democrat-controlled Congress was racing to enact President Obama’s top legislative priority, a government-run health care system, and there was simply no place or time for quaint constitutional niceties. Only a few months later, recall, Speaker Pelosi’s minions would contrive the magnificently named “deem and pass” maneuver by which House Members wouldn’t even have to vote for a health care bill that the public had by then turned against.

    The response to what had been a simple question—what is Congress’s power?—quickly devolved into farce. Reporters’ desks were blanketed with press releases from prominent law schools announcing leading academics’ media availability and their considered opinion that, based on text, history, and precedent, Congress could compel practically everything. Members of Congress, in turn, declaimed the irrelevance and obscurity of the constitutional text, and, besides, weren’t the courts supposed to figure these things out? And in the media, dissenters were tri-corner-topped eccentrics out of touch with 21st century America, if not reality itself.

    But a few did give this small matter—whether the federal government remains one of limited powers—the serious consideration that it deserved, and their efforts pushed Obamacare to the precipice of judicial invalidation. Here are three:

    Litigator David Rivkin, along with his colleague Lee Casey, raised the alarm in the pages of the Washington Post and Wall Street Journal, arguing that the individual mandate spelled the end of limited government. He soon joined Florida Attorney General Bill McCollum and more than half the states to challenge Obamacare in court, securing a stunning victory when a federal judge struck down the law in its entirety.

    While Rivkin was making the case against the individual mandate in the press, Heritage’s Todd Gaziano focused his efforts on Congress and the academic world. His article, with lead authors Randy Barnett and Nathaniel Stewart, was the first to lay out methodically why the mandate exceeded even the farthest bounds of the Commerce Clause power that had been recognized by the courts. Since then, Gaziano has played an important role in organizing the conservative legal response to Obamacare.

    Attorney Mike Carvin, along with Paul Clement, has been the one to steer the Obamacare litigation through the Eleventh Circuit and now into the Supreme Court. Representing the National Federation of Independent Business, Carvin has the difficult task of helping the Supreme Court formulate a precise limit on the Commerce Clause power where its previous jurisprudence has been imprecise in certain respects, while dodging the procedural barriers that the Obama Administration is attempting to throw up in the challengers’ way.

    The constitutionality of the mandate itself has been discussed to death, but there are even bigger issues lurking in the background that these speakers will address at our event on Thursday. The Obamacare case will determine whether anything remains of the Constitution’s structural limitations on federal power; address whether the states retain any independence and power in the present day or are merely contractors of the federal government; and point the way to the future of constitutional federalism.

    Pelosi couldn’t have been more wrong. This is serious.

    Posted in Featured, Obamacare [slideshow_deploy]

    19 Responses to The Big Issues Behind the Obamacare Challenge

    1. Bobbie says:

      As Nancy Pelosi and all other like minded in both parties show no serious nature regarding the values, principles and will of Americans. Their high pay and benefits does not reflect the expectations of their oath! it's time the people cease the diminishing by governmental force and at our costs, our freedoms and liberties! Power to the people has been taken over by power of the unconstitutional government. Talk about a need for social justice!

      For those of the opposing (pelosi pandering) mindset, those in support of the strengths and respects of America(ns,) please know the good of America will always be grateful for your integrity! Stay strong, stay tough! Stay fair, stay true!! Stay (what used to be standard)American!

      • Marie says:


      • HereIsWisdom says:

        Thanks for your comment.

        Any method to take money from someone against their will, whether by gun point or government mandates, should be viewed as robbery. Those who commit and promote such action should be treated the same.

    2. Andy Ferrigno says:

      Any move by the supreme Court to uphold Obamacare as constitutional will be met with a nullification by a state, then another, then several more. Most of the traditional red states will nullify.

    3. Stirling says:

      Pelosi clearly thinks the typical American is stupid and needs government to run their entire life for them from birth to death.. This is the European socialist model NOT the American Constitution Model. The main problem with progressives is they have no respect for individual rights of the people (which is what the Constitution was founded on.) Legally our problem is that the courts have been corupted with the progressives who subscribe to the European model, which is why the mandate issue wasn't struck down unamimously. Until this country recognizes and understands the progressive movement for what it is we will never root out the cancer that is destroying our republic and constitution from within our legal system.

      • George S. says:

        You are 100% correct. Your message is so important if we are to save our country. I recommend that you read the following book: "The Road To Serfdom" by F.A. Hayek. Most people in Germany in the late 1920's and 1930's had no idea what Hitler was doing. Most of our people in the U.S. haven't the slighest idea about what is happening to our country and the speed that the extreme radical Liberals are accomplishing their objectives. George S.

    4. charles yoder jr. says:

      Like I've said, before.If there is any way that I can help in the defeat of President Obama, let me know.President Obama is a threat to the constitution.

    5. dave says:

      Like FDR, Obama thinks that the Supreme Court is just a small hurdle in the way of Congressional powers that are limited by the Constitution. One of the Supreme Court justices, E. Kegan who worked on this law before she was appointed, is a plant that Obama put in the highest Court in order to justify his grab for power, and force US citizens to bow to his flawed socialized
      medicine grab. Hopefully the rest of the court will see the issues, make Kegan sit on the side lines, and vote
      to support the Constitution. The Commerce clause is so far removed from this grab that it is just as moronic to use it as a straw man argument to make every citizen purchase insurance.

    6. Susan says:

      God help US, this is a very serious moment in our history. All I can do is pray for our Nation.

      • HereIsWisdom says:

        Prayer is good and needed. But God also calls us to take action. Evil prevails when good people do nothing.

    7. William Charowhas says:

      The President has granted "waivers" to many businesses and Labor interests. This means that "equal treatment under the laws" is being violated! The President is NOT a King.
      The waiver provision is certainly unconstitutional. I wonder if Republican Party interests have benefited in other legislation where this is violated.
      I hope this part of the legislation is invalidated; then, several lawsuits can be filed against all this legislation as well. This would be incredibly wonderful.

    8. Al Connelly says:

      This administration believes it has the power and the mandate to make all the decisions for the American public without intervention of congress, senate, or the free will of the population it was elected to represent. These are very dangerous times!

    9. LukeAppling says:

      I am all in favor of reigning in Obama and his illegal obamacare bill." Ram it through and hope the dopes don't riot" seems to be the method of Obama and I am anxious for the bill to be ruled unconstitutional and Obama, Pelosi anhd Reid humiliated for their wasted two years with this fiasco and trhe tremendous cost of their lack of tranasparency. Keep up your good work, you are all we have.

    10. MacelloJoe says:

      The Welfare and/or Commerce clauses give no authority to the knuckle-heads in government to mandate any such Health Care Law. Health-care needs reform in all so many ways (including the free care given to illegal migrants) but government-run Health would cause too many of we-the-people–real sickness! Stop the illegal crossing of our borders, track and make the present illegals pay for their care as they should. Big government's waste, fraud and abuse is through the roof; the Death Tax is a scam, in San Francisco-Rent Control is a scam, there's now Zoning Scams subverting Prop-13 in N. California–Stop big government now!

    11. Ken Patterson says:

      Its time for several states to at least threaten to SECEDE from the Dictatorship we are currently involved with. There are no longer any compeling reasons to be in the UNION, sense it isn't one any longer. Its way to late to get the federal government under control! We now have thousands of agencies, mostly doing nothing except collecting pay checks. ( Buying their votes).

    12. Bakken says:

      I believe State Government is the answer to the Federal Government's 100yrs. of encroachment. Yes, the States have been complient over those 100 yrs., but with Courageous members of State assemblies and with State Compacts, We CAN stop the Healthcare and begin chipping away at the Unconstitutional Federal agencies. Many Republican Governors will attempt to veto State legislators, but with "House and Senate" majorities in the States We can override the Governors. That will put the "spotlight" on the Governors that "wear the Rhino suits". WE need to "run" for Legislative Seats and encourage Our State elected officials to get on board. We need to "hammer" local officials on the phone just like We do D.C. All elected take the Oath to Protect and Defend the Const.. Time to "make them read it"! And send them a copy of the Federalist Papers, also.

      It literally will have the "elite" running to Sorros looking for advice. I believe it will happen and am looking forward to the battle of Legislation. It will take years and Our "stuff" may be limited. But We can and will retain Our Liberty.

    13. Carl NElson says:


    14. Carl NElson says:

      thank you:

    15. robert says:

      I suppose I'm not the only one voicing my scepticism at the prospects of a successful outcome. I sit here today surmizing the courts are sold out just like most of congress.

      I'm upset at our founding fathers for leaving the commerce clause just sufficiently ambiguous to allow collectivist social engineers their wedge of destruction.

      This is why our only hope left is the states and informed citizens.

      I also might also recommend some prayer and fasting for our crippled nation. These are trying times indeed.

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