The Legal Battle Against Obamacare

The argument against the constitutionality of the individual mandates in obamacare have come to a head, as some state governments are actually proposing and passing exemption legislation and lawsuits against Obamacare, should it pass.

CNN reports on Idaho’s bold initial move:

Idaho on Wednesday became the first state to pass a law saying no thanks to part of President Obama’s health care proposal.

The Idaho Health Care Freedom Act says in part, “every person within the state of Idaho is and shall be free to choose or decline to choose any mode of securing health care services without penalty or threat of penalty.”


These state laws would directly conflict with the national health care bill that Democrats are trying to pass, which includes a requirement that all individuals get health coverage or face a tax penalty.

Several legal analysts said if Congress enacts a national health care law, it would supersede any state laws written to block them.

“I think most of the states that are passing these laws understand that they can’t trump federal law with state law,” said Professor Jonathan Siegel at George Washington University Law School. “But what they get out of it is symbolic effect. They’re sending a message to the federal politicians that they don’t like the health care mandate.”

Such state laws might not be the only legal challenge to Democratic health care legislation.

Florida Attorney General Bill McCollum, a Republican, on Tuesday sent a letter to the other 49 state attorneys general, asking them to join him “in preparing a legal challenge to the constitutionality of whatever individual mandate provision emerges, immediately upon the legislation becoming law.”

// // And from the Washington Post:

Republican Gov. C.L. “Butch” Otter used a ceremony Wednesday afternoon to become the first governor to sign into law a measure requiring the state attorney general to sue the federal government over any such insurance mandates.

There’s similar legislation pending in 37 other states, a point Otter stressed when asked if the bill he signed can succeed, given constitutional law experts are already saying federal laws would supersede those of states in a U.S. District Court fight.


Last week, Virginia legislators passed a measure similar to Idaho’s new law, but Otter was the first state chief executive to sign such a bill, according to the American Legislative Exchange Council, which created model legislation for Idaho and other states. The Washington, D.C.,-based nonprofit group promotes limited government.

“Congress is planning to force an unconstitutional mandate on the states,” said Christie Herrera, the group’s health task force director.

Still, David Freeman Engstrom, a constitutional law expert at Stanford University Law School, said all these measures face significant legal hurdles. Freeman said there is the question of whether a state has standing to bring the lawsuit, or if that role is better served by an individual who could show they were harmed by the mandate to buy health insurance.

The Washington Post also covers the promise by Virginia to sue:

A spokesman for Virginia Attorney General Ken Cuccinelli II (R) said this afternoon that Virginia will file suit against the federal government if the Democratic health care reform bill is approved by the U.S. Congress.

Cuccinelli has long said he was examining the legal issues and suggested he would likely file suit. Brian Gottstein, a spokesman for the office, said this afternoon that a lawsuit is now a definite. Gottstein would provide no details of the legal rationale for such a suit, indicating the process is “still being worked out.”

Virginia last week became the first state in the country to pass a state bill declaring it illegal for the government to require individuals to purchase health insurance, a key part of bills under consideration on Capitol Hill.

The fact that Democrats are preparing to employ the Slaughter Rule to pass Obamacare — which should be further proof that this bill isn’t wanted — is allowing for another chance at challenging it. Jeffrey Lord at the American Spectator tells us how Mark Levin is already preparing a lawsuit against the Slaughter Rule. Jonathan Adler at the Volokh Conspiracy questions whether a bill passed via the Slaughter Rule would pass judicial review.

Sister Toldjah comments on the State initiatives. Michelle Malkin mentions both the States’ actions and Levin’s lawsuit. Erick Erickson at Red State links to Levin’s  prepared complaint. Robert Stacy McCain also chimes in on the whole mess. And for good measure, Nice Deb offers us a video of a Fox News debate on the Slaughter Rule.

The bottom line is this: the people do not want this bill or what it does, and will fight it. It has gotten to the point where the heavy Democrat majority in congress can’t pass it without taking unconstitutional actions.

If Obamacare passes, it will potentially bring a complete dissolution of the Democratic party. Let’s hope.


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  1. Obamacare, Slaughter, and Stupak « The Republican Heretic
  2. The Obamacare Abomination: Backlash « The Republican Heretic

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