Sky-high stakes on Atlanta Obamacare argument 

On June 8, the U.S. Court of Appeals for the 11th Circuit in Atlanta will hear arguments in one of the most important cases in history, the Obamacare case of Florida v. U.S. Dept. of Health and Human Services.

This case is massive. The plaintiffs are 26 states, the National Federation of Independent Business (NFIB), and two individuals who are members of NFIB.

The case involves outstanding lawyers. The Obama administration is being represented by Solicitor General Neal Katyal. The states are being represented by former Bush Solicitor General Paul Clement. The NFIB is represented by Supreme Court heavyweights Michael Carvin and Greg Katsas.

This litigation focuses on Obamacare’s individual mandate. As seen in both the states’ brief and NFIB’s brief, the plaintiffs argue that the individual mandate—requiring almost every American to buy and maintain health insurance starting in 2014—is unconstitutional.

The administration’s brief argues that the individual mandate is authorized by Congress’s power to regulate interstate commerce, also as a tax, and also under the Constitution’s Necessary and Proper Clause.

As explained in Chapter 8 of my new book, Resurgent, the Obama administration’s arguments are all wrong. The individual mandate is not authorized by the Commerce Clause because that clause only covers economic activity, not inactivity.

It’s not authorized by the Taxing Clause, because a tax is when government takes your money, not commands you how to spend your own. And the Necessary and Proper Clause only covers matters rooted in one of Congress’s enumerated constitutional powers.

As I argue in Resurgent and in my amicus brief for the Family Research Council, the individual mandate is non-severable from the Obamacare statute.

So if you strike down the mandate, you must strike down the entire law. The lower federal court agreed, citing to me and my brief in January.

Appeals are heard by three-judge panels. The panel hearing this case is neither conservative nor liberal. The overall complexion is mixed, much like the current Supreme Court.

So this case could go either way at this stage, or could be a split decision such as striking down the mandate section but retaining Obamacare’s other 450 sections.

All eyes are on Atlanta this Wednesday.




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Mark Tapscott

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