Friday November 12, 2010

GOP Senate Minority Leader Joins ObamaCare Lawsuit

By Peter J. Smith

WASHINGTON, D.C., November 12, 2010 ( – GOP Senate Minority Leader Mitch McConnell is set to file an amicus brief on behalf of over 20 states attorneys general battling the new health care reform signed into law by President Barack Obama. The Senator warns that unless the Affordable Care Act is deemed unconstitutional, it will mean Congress has no real limits on what it can impose on Americans via legislation.

McConnell wrote a letter to fellow lawmakers on Tuesday asking them to join an amicus curiae brief to be filed with the court of U.S. District Judge Robert Vinson in Pensacola, Florida. Vinson said he would allow one week for concerned parties to submit amicus briefs in the states’ lawsuit led by Florida AG Bill McCollum against the federal government.

The GOP Senate leader said the Affordable Care Act would lead to a massive expansion of federal power over individual citizens and render the limitations of the US Constitution’s commerce clause essentially meaningless.

“For the first time,” McConnell wrote, “the Congress is not regulating an economic activity in which its citizens have chosen to engage, but rather is mandating that its citizens engage in economic activity — that they purchase a particular product — to begin with, and it would allow the federal government to punish those who make a different choice.”

“If the individual mandate is deemed constitutional, there will no longer be any limit on Congress’s power to regulate its citizens under the Commerce Clause,” he continued. “Congress’s specific power under that Clause will be transformed into a general police power, all but eliminating the distinction between federal and state regulatory authority in our federal union.”

The amicus brief to be submitted by McConnell states that if Congress can use the commerce power to “punish a decision not to engage in a private activity, on the basis that the future consequences of this choice … would substantially affect interstate commerce, there is seemingly no private decision Congress could not regulate or no activity it could not force private citizens to undertake, when … it concludes that doing so would benefit the economy.”

He said that based on this rationale Congress could mandate citizens take vitamin supplements, “on the ground that their failure to do so would increase health care costs by not ameliorating or preventing health conditions, like osteoporosis.”

The brief notes that even the Congressional Budget Office stated that in 200 years Congress has “never required people to buy any good or service as a condition of lawful residence in the United States.”

It also adds that even the US Supreme Court in Wickard v. Filburn (1942) “has never suggested that the Commerce Power allows Congress to impose affirmative obligations on passive individuals, or to punish individuals for failing to purchase a particular product.”

Judge Roger Vinson has ruled that McCollum’s case against the Affordable Care Act may proceed, over the objections of the federal government, because the states had demonstrated a “plausible claim” that Congress had overstepped its constitutional bounds.

However he stressed that although the individual mandate was “unprecedented,” that did not mean it was “unconstitutional.”

He also took the Justice Department to task for what he called an “‘Alice-in-Wonderland’ tack” by arguing that Congress actually meant the fine for violating the individual mandate to be a tax, not a penalty, as the legislation indicates.

Vinson ruled that the fine functioned as a penalty, not a tax, because it lacks “statutorily-identified revenue-generating purpose.”

McCollum filed the lawsuit with the district court in Pensacola on behalf of Florida and the attorney generals of 19 other states: Alabama, Arizona, Alaska, Colorado, Georgia, Idaho, Indiana, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah, and Washington. The suit is also joined by the National Federation of Independent Business and two individuals.

The case has a trial date scheduled for December 16.

The amicus brief submitted by McConnell and members of the US Senate can be viewed here

See related coverage by

Judge Rules ObamaCare Lawsuit May Proceed

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