Many of you know that I am one of the lead plaintiffs in this Obamacare Lawsuit challenging the Commerce clause and the Wickard case precedence! Van Irion, lead attorney has filed this case in Lubbock Texas and he is fighting every day to stop this monstrosity of an unconstitutional Socialist bill! Join us in the fight and read this update by Van IRION! Also as many may remember the filing of this lawsuit was well documented in a You Tube video called “ser ving Obama papers” look it up it is quite entertaining!
On August 12th, the 11th Circuit Court of Appeals in Georgia ruled that the Obamacare individual mandate is unconstitutional. This ruling directly conflicts with the 6th Circuit’s June 29th ruling. The conflict between circuits virtually guarantees that the Supreme Court will be taking up these cases within the next few months. We should have a ruling from the Supreme Court on the Constitutionality of Obamacare by next Summer.
Our plan has not changed: Liberty Legal Foundation will file an amicus brief with the Supreme Court as soon as the Court announces that it’s going to hear any Obamacare case.
The 11th Circuit Court’s opinion again confirmed all of Liberty Legal’s arguments. Throughout the opinion the Court describes how current “commerce clause precedent” leaves essentially no limits on Congressional authority. Or, to be more accurate, the Court explains that if there are any limits they are undefined, difficult to describe, limited in practical application, and unclear. Yet the Court fails to identify the real problem. Instead it addressed the issue as it was argued by the plaintiffs’ attorneys. It focused on the individual mandate as a new level of Congressional power grab. Here’s just a little of what the Court said about the individual mandate:
“Every day, Americans decide what products to buy, where to invest or save, and how to pay for future contingencies such as their retirement, their children’s education, and their health care. The government contends that embedded in the Commerce Clause is the power to override these ordinary decisions and redirect those funds to other purposes. Under this theory, because Americans have money to spend and must inevitably make decisions on where to spend it, the Commerce Clause gives Congress the power to direct and compel an individual’s spending in order to further its overarching regulatory goals.”
This description of the individual mandate is absolutely correct. If Congress can impose the individual mandate on America, it can force Americans to do anything, without any limits. Which is exactly what the Court concluded:
“Applying aggregation principles to an individual’s decision not to purchase a product would expand the substantial effects doctrine to one of unlimited scope. Given the economic reality of our national marketplace, any person’s decision not to purchase a good would, when aggregated, substantially affect interstate commerce in that good. From a doctrinal standpoint, we see no way to cabin the government’s theory only to decisions not to purchase health insurance. If a individual’s mere decision not to purchase insurance were subject to Wickard’s aggregation principle, we are unable to conceive of any product whose purchase Congress could not mandate under this line of argument.”
The problem with the 11th Circuit’s ruling is not their conclusion, it is how they got to their conclusion. The individual mandate is unconstitutional. But it isn’t unconstitutional for the reasons cited by the 11th Circuit. It is unconstitutional because Wickard left no limits on Congressional authority. The 11th Circuit was left with a job that it couldn’t do. It recognized that the individual mandate is FAR beyond the authority of Congress, yet it struggled to support this finding without admitting that Wickard itself is unconstitutional.
The 11th Circuit and the 6th Circuit opinions had several things in common: both Courts describe the individual mandate as unprecedented. Both struggled to identify how the individual mandate could be unconstitutional under the current commerce clause precedent. Both conclude that if the individual mandate is constitutional, then it is very difficult to identify any limit on Congressional authority. Both conclude that the difference between activity and inactivity is NOT a good limiting point because the government itself redefines “activity” as the decision to not participate in a market, leaving the activity/inactivity line meaningless. One Court ruled the individual mandate constitutional with one judge dissenting, the other ruled the individual mandate unconstitutional with one judge dissenting. Both Courts identify the same problem and both failed to identify the solution.
Overturning Wickard is the obvious solution. The Supreme Court should admit that it was wrong. Admit that Wickard was a politically motivated decision that insulted the clear meaning of the Constitution. Admit that Wickard led directly to exponential growth in Federal government, leaving us with a cancer that’s killing America. We must return Congress to its pre-1942 scope of authority. If either the 11th or 6th Circuits had suggested this simple solution, their opinions wouldn’t have been full of internal contradictions and unanswered questions. Even if they didn’t think that they had the authority to overturn Wickard themselves, BOTH Courts could have, and should have, raised this solution. Neither court did.
When history proves that precedent is flawed, it must be abandoned. Unfortunately, our courts and most attorneys have forgotten this. They habitually presume that precedent is correct and then they tinker endlessly with the appalling product of that flawed precedent. This is our slow road to hell. It leads to ever more complex rulings, attempting to explain differences that don’t exist and point to limitations that were never real. It’s time to admit that we’re on the wrong road. America became great because our Founding Fathers placed tight limitations on Federal authority. We’re going rapidly downhill because those limits were removed. We must go back to the fork in the road: 1942, Wickard v. Filburn. Once we turn down the right road we can begin to move forward again. We can begin to be great again.
Co-Founder, Lead Counsel
LIBERTY LEGAL FOUNDATION