Vital Signs - August 2010

ObamaCare:

Why the Constitutional Challenge Matters:

by Mark Hutchison

"Don't interfere with anything in the Constitution.  That must be maintained, for it is the only safeguard of our liberties."  Abraham Lincoln

    No American should have to live under a law that violates our Constitution.  Recently, Nevada joined 19 other states in filing an amended complaint in the United States District Court in Florida against the federal government challenging the constitutionality of the healthcare legislation enacted by the United States Congress and signed into law by President Obama on March 23, 2010.  There are critics of this lawsuit who charge that the lawsuit is a waste of time and resources.  Worse, they say, Nevada’s involvement will deepen divides that separate Nevadans who hold passionately differing views of the legislation.

    I believe this lawsuit is the best and fastest way to close these divides.

    The lawsuit Nevada joins updates the original lawsuit filed minutes after President Obama signed the legislation and requests that the district judge declare that the law is unconstitutional and bar the federal government from enforcing the law in Nevada and other states.  Based on the schedule established by the federal judge presiding over the lawsuit, we should have an answer this fall.  Thereafter, appeals will undoubtedly follow.  United States Supreme Court Justice Stephen Breyer has publically stated that he believes that case will reach the Supreme Court in a couple of years.  That may seem like a long time, but in the world of litigation, that’s a quick pace to the highest court in the land.

    No doubt the stakes are high.  As reported in The New York Times, Florida’s Attorney General, Bill McCollum opined, “In the last 50 years or so, other than Brown v. Board, I think the constitutional precedents here will have a greater impact on more people than maybe anything else the court has decided.”  There are now those on both sides of political ideology who feel that among the dozen or so lawsuit that have been filed in federal court challenging the healthcare legislation, the Florida lawsuit that includes the State of Nevada carries the most weight, is on the fastest track, and focuses on the most vulnerable part of the legislation:  the individual mandate.

    The law requires every citizen and legal resident of the United States (with a few narrow exceptions) to enter into a private contract with a  health insurance company for the purchase of a government-approved insurance policy.  A mandate or requirement that all citizens buy something- in this case health insurance- or face a penalty has never before been imposed on the American people.  The non-partisan Congressional Budget Office has emphasized the point.  “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action.  The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

    Nancy Pelosi, Harry Reid, and their colleagues in Congress pointed to the Commerce Clause in the Constitution as the source of Congress’s authority to impose the individual mandate.  But even the United States Supreme Court’s most expansive rulings on Congress’s power under the Commerce Clause have never extended to regulating inactivity.  Yet that is precisely what the individual mandate does.  A penalty in imposed on anyone who chooses not to engage in commerce by choosing not to purchase insurance.  If Congress can regulate inactivity, then there is no limit on Congress’s power- contrary to the bedrock principle on which the Constitution was established that the federal government is a government of limited powers.  If Congress can compel citizens to purchase insurance or be penalized, then Congress can compel citizens to exercise, buy a Chevrolet, or purchase stock in Goldman Sachs or face a stiff fine or penalty.

    I strongly believe that the healthcare legislation is unconstitutional and an unprecedented infringement on the sovereignty of the State of Nevada and the rights of United States citizens and Nevada residents in particular.  That’s why my law firm and I have agreed to represent for free Nevada in the healthcare lawsuit.  However, people of good faith disagree just as strongly.  The country is deeply divided over the subject.  In our system of government- established by the founders of this country- the federal courts will decide who is right.  Rather than rioting in the streets over unpopular laws, Americans may take their disputes to judges who are charged with applying the law equally and impartially and who have sworn to uphold the principles of the United States Constitution.

    The lawsuit Nevada joins tees up whether the healthcare legislation can pass constitutional muster.  No matter the desired result, the issue must be addressed and decided.  Nevadans and the rest of the country deserve to know whether, as Lincoln warned, their government has interfered with the Constitution and thus put in jeopardy the only safeguard of our liberties.

Mark Hutchison
Mark A. Hutchison, Lead Special Counsel for Nevada in the 26 States’ Constitutional Challenge of the healthcare legislation.