Since I first issued my challenge to debate “anyone anytime anywhere” on the (un)constitutionality of Obamacare, a lot has happened. For one thing, Randy Barnett and Richard Epstein, among many others, have published provoctive articles looking at issues beyond the Commerce Clause justification for the individual mandate — such as the argument that Congress’s tax power justifies the mandate penalty and that the new Medicaid arrangement amounts to a coercive federal‐state bargain. (Look for to a longish article from yours truly due to come out in next month’s issue of Health Affairs.) For another, as Michael Cannon noted, seven more states — plus the National Federation of Independent Business and two individuals — have joined the Florida‐led lawsuit against Obamacare. Perhaps most importantly, such legal challenges are gaining mainstream credibility.
Here’s a brief look at some important legal filings from the past 10 days:
- On May 11, the U.S. government filed a response to the Thomas More Center’s lawsuit asking a federal court in Michigan to enjoin Obamacare on various grounds, including, distinct from other suits I’ve seen, religious liberty violations from having to pay for abortions. The government argues that the plaintiffs lack standing because it’s unclear whether the individual mandate will harm them and in any event this provision doesn’t go into effect until 2014 at the earliest. The government also predictably argues that the mandate is a valid exercise of Congress’s power to regulate interstate commerce and to provide for the general welfare. There is nothing surprising here and we now await the court’s preliminary ruling.
- On May 12, the U.S. Citizens Association (a conservative group) and five individuals filed a new suit in Ohio, as Jacob Sullum notes. In addition to the government powers arguments that are being made in most Obamacare lawsuits (most notably the state suits), this suit claims a violation of: the First Amendment freedom of association (the government forces people to associate with insurers); individual liberty interests under the Fifth Amendment; and the right to privacy under the Fifth Amendment’s liberty provision, Ninth Amendment retained rights, and the rights emanating from the First, Third, Fourth, Fifth, and Ninth Amendments (such is the Court’s convoluted jurisprudence in this area). I’ll add that the attorney filing this suit, Jonathan Emord, worked for Cato over 20 years ago.
- On May 14, Florida filed an amended complaint that, along with adding seven states, two individuals, and the NFIB — so all potential standing bases are covered — beefs up relevant factual allegations and, most importantly, shores up a few legal insufficiencies to the previous claims. This is a solid complaint, and alleges the following counts: (1) the individual mandate/penalty exceeds Congress’s power under both the Commerce Clause and taxing power and, as such, violate the Ninth and Tenth Amendments; (2) the mandate violate’s the Fifth Amendment’s Due Process Clause; (3) the mandate penalty is an unconstitutional capitation or direct tax because it is unapportioned; (4) the Medicare expansion constitutes a coercive federal‐state bargain that commandeers state officials; (5) a different formulation of coercion/commandeering; and (6) interference with state sovereignty and functions under the Tenth Amendment. After further briefing, oral arguments on the government’s expected motion to dismiss are scheduled for September 14 in Pensacola.
- At least one enterprising analyst has determined that the 2,400-page bill lacks a severability clause. This means that if one part of the bill is struck down as unconstitutional, the whole thing falls! — and would mean that the drafters committed legal malpractice of the highest order. I guess it goes to show that nobody has read the whole thing.
Finally, if anybody is reading this is in Seattle, I’ll be debating Obamacare at the University of Washington Law School next Thursday, May 27 at 4:30pm. This debate, sponsored by a number of groups, including the law school itself and the Federalist Society, is free and open to the public. For those interested in other subjects, I’ll be giving a different talk to the Puget Sound Federalist Society Lawyers Chapter the day before at 6:30pm at the Washington Athletic Club ($25, rsvp to Michael Bindas at firstname.lastname@example.org). The title of that one is “Justice Elena Kagan? What the President’s Choice Tells Us About the Modern Court and Confirmation Process.” Please do introduce yourself to me if you attend either event.