op-ed

The healthcare law goes on trial

Karen Harned Executive Director, NFIB Small Business Legal Center
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Obamacare is unraveling across the nation. Voters have rejected its unconstitutional mandates and promises of higher premiums and increased taxes with restricted access to care and doctors. In Arizona and Oklahoma, voters followed in Missouri’s footsteps and rejected the individual mandate of the healthcare law, essentially stating that they did not want to be forced to purchase health insurance they didn’t want.

The weeks leading up to the election saw three different federal judges rule on Obamacare’s constitutionality, including in the national lawsuit brought by 20 states and our organization, the National Federation of Independent Business (NFIB). The judge in our case called the government’s attempt to portray the individual mandate, which requires all Americans to buy health insurance or pay a penalty, a “tax” an “Alice in Wonderland” argument. He said that there is good reason that the case should go forward given NFIB’s contention that the mandate is indeed an overreach of power by the federal government and is unconstitutional.

A federal judge allowed a similar case, brought by the state of Virginia, to continue. A third judge dismissed a less significant case in Michigan. That decision is now under appeal.

This week marks yet another inflection point in the national suit as NFIB and 20 states, as well as the federal government, file significant briefs detailing their arguments for or against the constitutionality of the healthcare law. The next step will be when we present our case to the judge in person on December 16. It is crucial for the well-being of our great nation, for small businesses, individuals and especially future generations that the healthcare law be struck down.

The Obama administration argues that the mere decision not to purchase something (like a health insurance policy) is in fact an “activity” that affects the economy and which Congress may therefore regulate. Under the Commerce Clause of the U.S. Constitution, Congress has the power to regulate people when they engage in an economic activity that affects commerce nationwide. But the healthcare law stretches this legal concept beyond recognition. The government is now seeking to compel Americans to engage in commerce by forcing them to buy health insurance or pay a fine.

If upheld, Obamacare’s individual mandate would eliminate any constitutional backstop to unlimited power for Congress. The federal government could easily compel individuals to buy or sell particular goods and services merely because their “decision” not to do so has broader economic consequences. A decision not to sell a house, for example, would be transformed into economic activity Congress could mandate.

The American people recognize that this kind of unlimited power is unconstitutional. They said as much by voting to repudiate Obamacare Tuesday night. Now it’s up to the federal courts to strike down this unconstitutional law.

Karen Harned is executive director of the NFIB Small Business Legal Center.