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  • Heritage Files Amicus Brief on What Congress Did Wrong in Obamacare

    Later today, The Heritage Foundation (with five other organizations and former Senator George LeMieux) will file an amicus brief in the Supreme Court in the Obamacare case that challenges the mandate requiring all individuals to purchase an inflated health insurance policy designed to subsidize other terrible policies in the 2,500-page bill.

    Heritage previously published a detailed analysis on why the individual mandate is unconstitutional, and that paper is cited in our brief. But since the parties are making the central constitutional arguments, the joint amicus brief the Heritage is joining focuses on three other points that help create a framework for consideration of those constitutional issues.

    First, our joint amicus brief points out that the presumption of constitutionality that the Court usually accords congressional legislation is based on the deference that is due to a coordinate branch’s independent judgment regarding constitutional questions. The brief argues that it would be wrong to defer to the independent judgment of Congress when none was exercised. Several Members of Congress argued that the bill, especially its individual mandate, was unconstitutional, and at least three Members cited the 18-page Heritage analysis of why it was unconstitutional. (Professor Randy Barnett, Nathaniel Stewart, and I co-authored that analysis.)

    What was the response to those well-developed constitutional arguments? Not only did then-House Speaker Nancy Pelosi (D–CA) mock one reporter’s constitutional question with the “Are you serious” snap, she also said that Members would “have to pass the bill so that you can find out what is in it.” The principal sponsor in the other chamber, Senator Max Baucus (D–MT), also admitted that he wouldn’t “waste [his] time to read” the bill.

    In sum, the sponsors didn’t even read the bill. Their defense of the bill’s constitutionality was nothing more than platitudes and empty claims that there were no limits to Congress’s authority, which every judge knows to be wrong. Remarkably, there were no hearings on the constitutional questions before passage and no serious analyses of constitutional authority in the committee reports. Given those facts, justices should extend no deference to a constitutional evaluation that was never rendered.

    Second, the joint amicus brief points out all the procedural abuses (remember the budget reconciliation dodge and the various state kickbacks) that were necessary for the sponsors to squeak out a razor-thin, one-vote margin in each House. And that no-votes-to-spare majority was all from one party. The brief points out that the only bipartisan aspect of the bill was the opposition to it. In short, justices need not worry that they are overturning a broad consensus of the American people. The unexpected victory of Senator Scott Brown (R) in liberal Massachusetts, who won Ted Kennedy’s old seat on the promise he would stop Obamacare, is a better bellwether for what the American people really wanted at the time of passage.

    Third, the brief shows that no other major landmark social legislation was passed without wide margins because the sponsors of all those other laws made compromises to address constitutional and other concerns. That is true for the Social Security Act, Medicare and Medicaid, the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Americans with Disabilities Act, and the Welfare Reform Act in 1996. Most of those laws were passed with four-to-one or up to nine-to-one margins. None were even close, in large part because the sponsors took constitutional concerns seriously and spent months or years improving the legislation to address them.

    Obamacare followed the exact opposite path: no compromise, no bipartisan support, razor-thin majorities, no attempt to fix constitutional defects, no time to read the bill, refusal to consider the mood of the country, no patience to consider constitutional arguments. It didn’t have to be that way.

    So what should the High Court do with this mess? It should do its duty, enforce the Constitution, and strike down the law. And what is more, no justice should worry for a second about those in Congress who were not “serious” about their own duty. They have hoist themselves with their own petard.

    Note: The brief will be filed on behalf of the Center for Constitutional Jurisprudence, the Judicial Education Project, Reason Foundation, The Individual Rights Foundation, The Heritage Foundation, Ending Spending, and Former Senator George LeMieux.

    Posted in Obamacare [slideshow_deploy]

    11 Responses to Heritage Files Amicus Brief on What Congress Did Wrong in Obamacare

    1. West Texan says:

      Pelosi, Reid and Obama were simply riding the 20th Century's socialist wannabe wave. Fact is, Social Security and Medicare are in the the same boat with Obamacare. Doesn't matter if these programs are funded by a so called special tax or forced purchase because of consumer inactivity. The federal government was granted specific enumerated powers that didn't include the above domestic affairs, which are rightfully states' sovereign business. According to R. Natelson, " …the Necessary and Proper Clause was without substantive force. …the word 'necessary' merely informed the reader of incidental powers … the word 'proper' reminded the reader of limitations… ". The latter clearly shows the improper overreach and unconstitutional nature of Obamacare plus earlier subversive social activist travesties. Must patriotic hard working Americans suffer anymore big government progressive perversion?

      Quote's source: The origins of the necessary and proper clause by G. Lawson, et al., 2010, Cambridge University Press, New York.

      • Tony Tonelli says:

        Nothing that refers to Poosi and Reid I have nothing to respond to.End of message.

        Tony Tonelli

    2. Greg Scandlen says:

      Well said, Todd. Whether the standard is process or substance, this is simply the absolute worst piece of legislation ever enacted in these United States. Hands down

    3. Warren Plowden says:

      Where is a link to the brief itself?

    4. Tony TONELLI says:

      I repete nothing more to say.

    5. dagbat says:

      If you mean the amicus brief here it is.

    6. Matt - Paoli says:

      "Third, the brief shows that no other major landmark social legislation was passed without wide margins because the sponsors of all those other laws made compromises to address constitutional and other concerns." My comments that are negative, but cordial, to Heritage have been blocked in the past several months (benign ones go right through though). As a Presidents Club donor, I can say that I am less than thrilled about this behavior. And I am assuming that this comment won't be posted, but at least hopefully can inform before I need to elevate to direct contacts at Heritage.

    7. Robert Calabro says:

      It should be obvious to everyone that the Democrats real intention is a one payer health care system! Obama care is the pathway to socialized medicine. If tis should happen, the government would remove 2.8 trllion dollars of wealth from our economy! This is the third time the democrats have tried to have a one payer system. The first try was President Trmen, the second try was President Clinton, Obama care is number three. three strikes and your out. President Obama must be a one term President. He is a Socialist! A portion of the bill was quoted in National Review. the seven member commission will have a say in what health care will be provided. This commission should be named the Rationing commission. They can only be overturned by a 75% vote in the Senate. How often does that happen; hardly ever. Please be mindfull that business has over 1 Trillion dollars sitting on the sidelines waiting to be put to work. What Obama care has created is business uncertainity and has a negative impact on cunsumer confidence, the two intangibles of our economy. Regards Robert Calabro.

    8. GRAmerican says:

      Remember that a small group of persons that want to overthrow the government will convince the people that at first they can help them by taking control of their medical services. History shows that this was one way that the communist took control.
      We are Americans and Freedom is something to sustain and others have died for us so that we are free.
      Those democrats in positions of power today must be taken out. They are a cancer to the ideals of this great Republic as layed out by our Founding Fathers.

    9. Lou Filliger says:

      No one dislikes ObamaCare more than I do; however, the Heritage amicus doesn't seem to make much of a strong argument for ObamaCare's unconstitutionality, which is the point. ObamaCare could be the worst, must unjust, unfair law ever, but that's not SCOTUS' problem. SCOTUS' problem is whether it's constitutional. If we don't focus on that then we're little better than the Dems who passed it in the first place.

    10. zpatriot says:

      Hey didn't Heritage write the law? Didn't Republican Governor Mitt Romney put it into place in Massachusetts? Didn't Sen. Jim DeMint say that Congress should put Romney's plan in place nationally?

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