Sen. Paul NRO Op-Ed On Obamacare

Sen. Rand Paul has posted on op-ed on National Review Online in which he reiterates his initial reaction to the Obamcare ruling and paints a way forward.

Plainly, this is a call to the Tea Party to rally for a new president, a new Senate and a return to limited government.

Here are highlights from Paul's op-ed:

[T]he 2010 Tea Party wave as an extraordinary assemblage of liberty-minded Americans who rallied around the Constitution in order to reclaim their country. One of the galvanizing forces was the passage of Obamacare — the national government’s takeover of our health care. Millions of Americans were enraged by this and other aspects of the Obama administration’s destructive political agenda, and they were sick and tired of their representatives’ failure to do anything to stop it. The 2010 wave election was a direct consequence of Obama’s unconstitutional ideals and czar-like power. And now, with the announcement of the Supreme Court’s decision to uphold Obamacare, it is my belief that the American people will be motivated to reorder our political priorities as they did in 2010.



On Thursday, the Supreme Court upheld Obamacare’s individual mandate in a 5–4 decision authored by Chief Justice John Roberts. The Supreme Court wrongly concluded that Obamacare can stand. But just because a majority of the Supreme Court declares something to be “constitutional” does not make it so. Millions of Americans simply won’t accept it and will act to help overhaul it.

Make no mistake: Obamacare is not constitutional. As a consequence of the Court’s ruling, Americans, whether they want it or not, will be compelled to purchase a product — health insurance — or pay a penalty.

The majority held that this penalty, for constitutional purposes, is also a tax. The dissenting justices concluded that the majority, by its actions today, rewrote what Congress actually intended when it enacted the law: “For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling.” The dissent then immediately cites the Stamp Act of 1765.



The Stamp Act was a direct tax imposed on the colonies by King George III. This act inevitably led to the American Revolution. Just as the Stamp Act did in 1765, Obamacare should act as a wake-up call. . . .

Obamacare exists because Obama is in the White House. This decision is a direct consequence of the American people’s political decisions. And much like Obama himself, Obamacare was deceptively sold to the American people.

In 2009, President Obama firmly stated that the individual mandate was not a tax. Here are his exact words: “For us [the government] to say that you [the American people] must take personal responsibility to get health insurance is absolutely not a tax increase.” After the ruling, Nancy Pelosi was asked if these reforms were a tax. Her response: “Call it what you will — it is a step forward for American families.”

Obamacare has caused up to 20 million Americans to lose their health-insurance policies. . . . . [It]will destroy 800,000 jobs. An analysis from the Joint Committee on Taxation from November 2009 shows that in 2016, three-quarters of the tax imposed by the individual mandate will fall on those making less than $120,000 of income for a family of four or $59,000 for an individual. Families of four making $72,000 or less and individuals making $35,400 or less will bear nearly half of the mandate tax.


This is a direct tax on the middle class. It is clear that through its proposed $500 billion in tax increases, the $500 billion in Medicare cuts, and the individual mandates and regulations, Obamacare will swiftly harm our country. . . .

Although the Supreme Court declared that the individual mandate should be upheld as an exercise of Congress’s taxing power, there was a minor victory for the Commerce Clause in that the Court did hold that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. This minor victory is not much of a comfort, however, because this ruling essentially grants the federal government the right to legally tax our every breath. And tax they will.

Today the Supreme Court — the ruling body that our Founding Fathers created to protect citizens from tyranny — decided to uphold Obamacare and thus stripped Americans of their personal liberties and freedoms. We have heard the Court’s opinion loud and clear, but now it’s time for them to hear us. It is up to us to reclaim our constitutional rights. It is up to the American people to end President Obama’s political agenda. Obamacare is wrong for Americans and it will destroy our health-care system. This now means that we must fight every hour, every day until November to elect a new president and a new Senate to repeal Obamacare.

Sen. Mike Lee, Tea Party Caucus Member and Former Alito Clerk, Discusses Obamacare Ruling

Sen. Mike Lee (R-UT), in a conference call with conservative bloggers, gave his take on yesterday's Supreme Court ruling upholding Obamacare, and Republican plans in reseponse to the ruling.

Kentuckians may know that Lee is one of Sen. Rand Paul's favorite colleagues and with Paul a founding member of the Senate Tea Party Caucus.  In fact, Paul attributes his interest in the Federalist Society to Lee.

Lee clerked for then-Judge Samual Alito twice, once on the Third Circuit  later on the Supreme Court.

Drawing on that experience as a Supreme Court clerk, Lee said he "would not be surprised' to learn that Chief Justice John Roberts switched his vote at the last minute to uphold the statute.  "There are some signals in the opinion that something changed somwhere," he said, "probably late in the day."  He noted that the dissent refers to the "Ginsburg dissent" rather than "concurrance."  Further, he observed that the dissent "reads generally like a majority opinion." Lee cautioned that he cannot prove that this is so.

Lee's take on the Commerce Clause ruling was similar to what I wrote yesterday:  this limit on Congress' authority under the Commerce Clause -- only the third time in 75 years -- is historic.  "Our children and grand-children will study this."  In contrast, the holding on that the  individual mandate may survive as a tax is "a hollow and short-lived" victory for the Obama administration.

Lee called it "somewhat unprecedented" for the Court to rewrite the statute to save it.  The problem with the Court "shoe-horning" the statute under the taxing power, for the Obama administration, is that the individual mandate is "wildly unpopular," Lee said. "To put it mildly, the individual mandated's new status as a tax is not going to increase the American people's appetite for it."

Another "siliver lining" of the decision,  (in addition to the Commerce Clause ruling) is the holding on Medicaid, that Congress cannot coerce states into accepting new regulations by taking away prerviously-promised funds. Lee noted that this is the first time the doctrine from South Dakota v. Dole has been implemented to strike something down. 

Lee said he was "saddened" by the Supreme Court's failure to play its role as the "gatekeeper" of limited government.  "I didn't think it was a tax. Congress didn't think it was a tax.  The president assured it wasn't a tax."  But the Supreme Court said it was a tax in order to save it.

The only way to turn this into a victory, therefore, is to shift to a policical remedy.  He predicted that "this ruling will give us added momentum" to elect Republicans in November.

Lee had the same reaction as I did yesterday to the Court's remedy on the Medicaid provision's coerciveness:  having concluded that the coercion was unconstitutional, the Court should have stricken the entire statute on that basis, rather than just the portion that would take away existing state funds.  "I disagreed with the severability analysis," Lee said.  Seven justices found the coercion unconstitutional.  "The appropriate remedy was to invalidate the whole law at that point."

Regarding Republlican talking points about "Repeal and Replace,"  Lee said that outright repeal will be difficult without 60 Republican votes in the Senate, an unlikely prospect.  However, "there's alot we can do with only 51 votes."  Specifically, Lee suggested that given a Republican majority in January, Republicans can  suspend the "tax" provisions and refuse to fund the ACA's implementation. While cautioning that he is "not promising a repeal," Lee said there is a "strong, strong likelihood" that Republicans can disable the act.  That will be crucial because the "difficulty and expense in implementation are only going to get more severe," and will be much worse than the American people were promised.

Lee favors and incremental approach to the "Replace" part of "Repeal and Replace."  This is colored by his perspective as a consitutional conservative.  He said there is no single Republican alternative, no catch-all solution to reforming health care.  He favors proceeding "step by step" with "common sense decisions" to put Americans back in charge of their own health care. He said Republicans need to avoid rushing to pass something, and said that is how we ended up with a 2700 page bill that no one had read before voting upon.

When asked about his role in the Tea Party Caucus, Lee said he tries to remind his colleagues that the federal government is one of limited, enumerated powers.  Citing James Madison in The Federalist No. 45, Lee observed that there are lots of things that the states can do that the federal government cannot. Healthcare is a good example of that principle of federalism.  Some of the health care reforms, therefore need to take place at the state level, Lee said.

On a personal note, I can see why Sen. Paul is such a big fan of Lee.  The man is not just brilliant and conservative, but he is thoughtful. He thinks deeply about the appropriate role of the federal government with respect to the states and to individuals.  His presence in the Senate gives me hope for the future of conseravtism in the Republican Party.

Memories of Obama Saying, No Tax Here, Move Along

Hey, remember when President Obama said that Obamacare was not  a tax, before he needed it to be a tax in order to get Chief Justice John Roberts to uphold it?

STEPHANOPOULOS: “Under this mandate, the government is forcing people to spend money, fining you if you don’t. How is that not a tax?” … PRESIDENT OBAMA: “No. That's not true, George. The — for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase. What it's saying is, is that we're not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase.” (“Obama: Mandate Is Not A Tax,” ABC News, 9/20/09)

STEPHANOPOULOS: “But you reject that it’s a tax increase?” PRESIDENT OBAMA: “I absolutely reject that notion.” (“Obama: Mandate Is Not A Tax,” ABC News, 9/20/09)

Sen. McConnell Reacts to Obamacare Ruling

Senate Republican Leader Mitch McConnell, who weighed in on amicus briefs as far back as the district court in Florida, issued this statement on the Senate Floor a few minutes ago:

Two and a half years ago, a Democrat president teamed up with a Democrat-led Congress to force a piece of legislation on the American people that they never asked for, and that has turned out to be just as disastrous as many of us predicted.

“Amid economic recession, a spiraling federal debt, and accelerating increases in government health spending, they proposed a bill that has made these problems worse.

“Americans were promised lower health care costs. They’re going up.

“Americans were promised lower premiums. They’re going up.

“Most Americans were promised their taxes wouldn’t change. They’re going up.

“Seniors were promised Medicare would be protected. It was raided to pay for a new entitlement instead.

“Americans were promised it would create jobs. The CBO predicts it will lead to nearly 1 million fewer jobs.

“Americans were promised they could keep their plan if they liked it, yet millions have learned they can’t.

“And the President of the United States himself promised up and down that this bill was not a tax.

“This was one of the Democrats’ top selling points — because they knew it would have never

Excerpt From Sen. Rand Paul's Brief on "Spending Power"

Sen. Rand Paul's amicus brief in the Obamacare case focused on why the statute was unconsitutional under the Commerce Clause.  (Disclosure:  I was counsel of record on that brief.)  A majority of the court agreed with his reasoning, but upheld it under the so-called Taxing and Spending power.  This was the third layer of argument that the Obama administration advanced -- the fall-back to its fall-back.

Though it wasn't the primary focus of Sen. Paul's brief, he did address it briefly, focusing on the Framers' original understanding of the "Spending Power":

So, too, with PPACA, the statute’s proponents lean on the Commerce Clause, the Necessary and Proper Clause and the spending power to form a three-leggedstool to support the Act. None of these legs can support the Act’s constitutionality either in isolation or cobbled together in the regulatory morass that is PPACA.

. . .



The spending power is not a roundabout to evade the Constitution’s federalist plan of limited and enumerated powers. See Richard W. Garnett, The New Federalism, The Spending Power, and Federal Criminal Law, 89 CORNELL L. REV. 1, 24 (2003). Indeed, there is no “Spending Clause” per se, and there is considerable scholarly debate about what constitutional provision empowers Congress to spend. See, e.g., ORIGINALISM: A QUARTER-CENTURY OF DEBATE 253-85 (Steven Calabresi ed., 2007). For most of the first seventy years after the Constitution’s ratification, the spending power was understood to be limited to the enumerated powers, rather than a free-standing power. See John C. Eastman, The Spending Power, in THE HERITAGE GUIDE TO THE CONSTITUTION 95 (Edwin Meese III ed., 2005) (discussing narrow view of spending power leading to vetoes by Presidents Thomas Jefferson, James Madison and James Monroe).PPACA cannot be squared with this original understanding.

Here's Sen. Paul's reaction to today's ruling:

“Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional. While the court may have erroneously come to the conclusion that the law is allowable, it certainly does nothing to make this mandate or government takeover of our health care right,” Sen. Paul said.



“Obamacare is wrong for Americans. It will destroy our health care system. This now means we fight every hour, every day until November to elect a new President and a new Senate to repeal Obamacare,” he continued.

Quick Reaction to Obamacare Ruling

The Supreme Court's decision to uphold the constitutionality of Obamacare is on one level very disappointing. The good news is that Chief Justice Roberts -- the swing vote -- voted to uphold it under the taxing power rather than the Commerce Clause or the Necessary and Proper Clause.  This is a much narrower basis for the legislation than the Obama administration had advanced all along, until the very end.

Those who believe in limited government should thank God that this monstrosisty was not upheld under the Commerce Clause coupled with the Necessary and Proper Clause.

The majority opinion, at least at first glance, appears rife with inconsistencies and hypocrisy.  If the minimum coverage provision is a tax, then why wasn't it barred by the Anti-Injunction Act?

The ruling on Medicaid and the coerscion of the states is similarly illogical.  Seven Justices found that it was unconstitutional for Congress to take away existing Medicaid funds from states which refuse to adopt new Obamacare expansions.  But instead of holding the statute unconstitutional on that basis, a majority of  five for theCourt esseentially rewrote that provision -- Congress may not take away the exisiting Medicaid funds, but may withhold new funds conditioned on new expansions.  This, despite the fact that the statute contains no provision for severability. 

This is the Court not interpreting the law but redrafting it altogether.  It is one thing to construe a statute in the best light to hold it constitutional, it is another to slice it and dice it to make it so, particuarly in the absence of the a severability provision.

More thoughts to come, but that is my initial take.

Notre Dame, Catholic Dioceses, Sue Obama Administration

Today 40 Catholic dioceses, and Notre Dame University sued the Obama administration for violating the first amendment by requiring religious employers to pay for their employees'sterilizations, birth control and morning after pills.

The Obama administration surely knew this was coming.  But the onslaught of plaintiffs -- the preeminent Catholic university in America and 40 Catholic dioceses -- sets this up to be a well-litigated constitutional show-down.

Notre Dame sued in federal court for the Northern District of Indiana.  Cardinal Timothy Dolan sued for his diocese in the Southern District of New York.

In all, there are 12 different suits around the country -- and counting.   That should be enough to guarantee a circuit split, and another trip for the Obama administration to the Supreme Court.

With any luck, Paul Clemente has already been retained to serve on the side of the angels.

We will be following the briefing with great interest.

The Terrible Twos: McConnell on Obamacare Anniversary

Senate Republican Leader Mitch McConnell is marking the two year anniversary with Obamacare with a full-court press, including a news conference (rare for a Friday, when the Leader travels home to Louisville) and and op-ed in National Review Online.  The NRO piece is worth reading in its entirety, but in case you don't have time, here are a few highlights.

McConnell's op-ed makes the point that Obamacare is even worse than most of us had feared.  Therefore, Republicans are even more committed to repealing it -- if the Supreme Court doesn't strike it down.

On Team Obama's political strategy regarding Obamacare, McConnell notes, "Time and again, the president and his allies have arrogantly presumed that a public that has largely opposed Obamacare from the start would either come to like it or forget about it over time. Their hopes never materialized."  Instead, public opposition to Obamacare remains high; three-fourths of Americans believe that the individual mandate is unconstitutional.

Republicans acknowledge that health care requires common-sense, market-based reform and are therefore prepared to replace Obamacare with a conservative alternative:

 Among other problems were the rising cost of health care to private and public payers, the exposure of too many families to potentially catastrophic health-care costs, and the lack of coverage for millions of Americans
Yet rather than solving the most pressing problems in the old system, Obamacare has made many of these problems far worse. Costs and premiums are rising, Medicare has been weakened, states now struggle to keep pace with even costlier federal mandates, and the economy is being sapped as new mandates dissuade employers from creating new jobs.

Obamacare has screwed up Medicare, saddling states with unfunded (and unconstitutional mandates) that states cannot afford and that will jeopardize the quality of care our seniors receive:

States face their own challenges. Many couldn’t afford federal health-care mandates before Obamacare mandated dramatic increases in Medicaid rolls — and the costs to pay for it. Needless to say, even if states are able to meet the costs of covering as many as 25 million more Medicaid patients, the quality of the care for those who rely on Medicaid would almost certainly suffer.


The president may be able to boast that more people have coverage. But states, which will have to shoulder the costs, won’t be applauding.

Nor will America’s seniors, millions of whom now know from bitter experience that the president wasn’t speaking to them when he vowed that, under Obamacare, “if you like the plan you have you can keep it.” Since then, millions who have and like Medicare Advantage have learned it won’t necessarily be there for them anymore.

McConnell also hits upon the key distinction between conservatives and liberals. Conservatives trust in the innate wisdom of the citizenry; they believe that individuals have the common sense and responsibility to take care of themselves; the little people are not stupid, and don't need the government to run their lives or spend their money for them. Democrats, in contrast, think that the poor fools in the flyover states need to be saved from themselves by the enlightened progressives:

 most Americans understood from the start that the president’s claims about this plan simply weren’t credible. Chief among them was his insistence that it wouldn’t add a dime to the deficit. Americans aren’t stupid. They know that a government entitlement is about as likely to pay for itself as, well, a government entitlement.

McConnell clearly lays out the differences between the the two parties on this critical issue of  health care. It is imperative that Republicans elect enough senators to give McConnell a majority so that if the Supreme Court fails in its task, the Senate can repeal this monstrosity.

Sen. Paul's Amicus Brief on Obamacare

Sen. Rand Paul's amicus curiae brief to the Supreme Court not only calls on the Court to strike down Obamacare, but to jettison the 1942 precedent that has allowed Congress to blow past its enumerated powers under the Commerce Clause.  That case held that Congress can forbid a farmer from feeding his family and livestock with wheat he grew himself on his own farm; it ushered in the era of big government -- and big debt.

Here's a link to the brief.  In full disclosure, I am counsel of record.  Constitutional conservatives will appreciate that Paul calls for the Court to overrule Wickard v. Filburn  when it addresses Obamacare.  That's the case that Judge Silberman of the D.C. Circuit reluctantly concluded justified the individual mandate.  Of course, the D.C. Circuit, as an intermediate court, is stuck with Wickard.  But the Supreme Court is not.  In all likelhihood, the Court will distinguish Wickard, if it strikes down Obamacare.  However, look for Justice Thomas to echo Paul's call to make clear that Wickard was wrongly decided.

Sen. Paul spoke about the brief and many other topics yesterday at the Federalist Society's Louisville Lawyer Chapter. This is the first time that he has spoken to any Federalist Society chapter, and he drew a huge crowd.  It's a natural fit, because like the Tea Party, the Federalist Society seeks for rule of law based on the plain text of the constitution as understood by the Framers:  limited government, personal responsibility, liberty.

Here's some of the press coverage.  WFPL  had the best coverage of the brief.  The C-J focused mostly on Paul's opposition to federalizing  the criminalization of synthetic drugs. WAVE 3 fixated on Paul's assessment of the odds of a brokered Republican Convention, which he put at 30 percent. WHAS 11 made the point that Paul is "staying true" to his campaign message.  (How sad that it is actually newsworthy for a politician to keep his word.).

The Daily Caller picked up on Paul's remark that he would be "honored" to be considered as candidate for Vice President. There is speculation that the reason Ron Paul is hitting Rick Santorum so hard, but not Mitt Romney, is that Ron Paul has cut some kind of deal to be Romney's V.P. nominee.  In fact, Rand Paul would probably add more to the ticket than his father.

Here's what the media missed yesterday:  in casual conversation, before the event started, when asked whether he would run for president, Paul very candidly said he was "thinking about it." In the event that Obama is reelected, I expect Paul to run.

A few observations on working with Paul on the brief.  Law students of all ideological persuasions have thought for 70 years that Wickard v. Filburn was wrongly decided.  It makes a mockery of a federal government, and particularly a Congress, that is subject to enumerated and hence limited powers. 

To have a sitting member of the U.S. Senate show the courage and intellectual honesty to say what so many think -- that Wickard   is wrong --  was extraordinary.  It is the constitutional equivalent of telling the Court that the Emperor has no clothes.

I was struck by Paul's command of constitutional law; he is a non-lawyer  who knows more than most lawyers.  He is a voracious reader who loves history.  I was also struck by his humility and sense of humor.  Despite his intellect and position, he is modest and down to earth.

Although I still don't agree with him on all issues, I think that we are blessed to have his service.

McConnell Reacts to SCOTUS Accepting Obamacare Challenge

Here's the statement of Senate Republican Leader Mitch McConnell on the U.S. Supreme Court granting cert to hear the constitutionality of Obamacare.  Recall that early on in the initial challenges, McConnell filed an amicus brief in opposition to law's constitutionality. According to McConnell,

Throughout the debate, Senate Republicans have argued that this misguided law represents an unprecedented and unconstitutional expansion of the federal government into the daily lives of every American. Most Americans agree. In both public surveys and at the ballot box, Americans have rejected the law’s mandate that they must buy government-approved health insurance, and I hope the Supreme Court will do the same.

We now know that the Supremes have asked for five and a half hours of argument, to take place in March. The mandate to purchase insurance will get two hours of argument, and 90 minutes will go to the severability issue of whether the law survives if a portion, such as the mandate, is struck down. The Democratic Congress that rushed this monstrosity through on Christmas Eve, neglected in all its arrogance to include a severability provision.  Apparently that was one of the little niceties to which Nancy Pelosi was referring when she said they needed to pass the bill first, so we can find out what's in it.

I cannot wait to get Mitt Romney's reaction.

SCOTUS to Hear Obamacare Challenge! Jack Conway Yawns!

The U.S. Supreme Court has granted certiorari to hear a challenge to the mandate to purchase healthcare, the heart and soul of Obamacare.  This just happened eight minutes ago, so I do not yet know any details.

This is the same challenge that our newly-reelected Attorney General, Jack Conway called too legally frivolous for Kentucky to join.  So much for his legal acumen.

Conway is said to have held a big meeting the morning after Election Night last week.  The meeting lasted a full two hours.  Kentuckians might like to think he was setting goals for his second term as AG, but no:  Conway was laying the groundwork for his plan to run for governor.

He spent his first term as AG running for senator, and he will spend his second term running for governor.  What a disgrace:  the office of Attorney General is too important for a mere seat-warmer.  Voters will get exactly what they deserve; Conway  made no pretense of even campaigning for the job, and he will perform the job the same way he campaigned, with indifference.

Todd P'Pool Praises 11th Circuit's Obamacare Ruling

The Republican nominee for Kentucky Attorney General, Todd P'Pool was quick to praise the U.S. Court of Appeals for the 11th Circuit for holding the Obamacare individual mandate to purchase insurance unconstitutional.

 P'Pool has made his opposition to the individual mandate a cornerstone of this campaign -- in contrast to Attorney General Jack Conway, who refused to join the multi-state Attorneys General challenge the the healthcare takeover.

Conway justified his failure to join the multi-state challenge on the grounds that he did not want to waste taxpayers' money on a "frivolous" suit. Now, the 11th Circuit has vindicated P'Pool and made Conway's legal skills look sub-par.

Here's P'Pool's statement:

I am encouraged to see that the 11^th Circuit ruled to uphold liberty and protect the general police powers reserved to the states by ruling Obamacare unconstitutional"; said P’Pool.

“Jack Conway believes that Obamacare is irrelevant to his job as Attorney General. When I’m Attorney General, the Constitution will be relevant to this job.”


On Friday, the 11^th Circuit Court of Appeals, based in Atlanta, ruled the individual mandate in Obamacare to be unconstitutional. Since the individual mandate provision is the cornerstone of President Obama’s law, this ruling is a significant blow to the White House and to supporters of the 
President’s health care reform.

Todd P’Pool has pledged throughout his campaign that he would join the other 26 Attorneys General from around the country who are challenging Obamacare in federal court. Democrat Attorney General Jack Conway has refused to join any of the lawsuits, repeatedly referring to them as “irrelevant” or as a “gimmick.”  

McConnell on 11th Cir. Ruling Striking Obamacare

Senate Republican Leader Mitch McConnell is praising the U.S. Court of Appeals for the 11th Circuit for its decision striking down the Obamacare individual mandate to purchase health insurance.

McConnell and many of his Republican colleagues had filed an amicus brief with the court. Here's McConnell's statement:

Like countless other Americans, I welcome the 11th Circuit's ruling against the individual mandate. Forcing Americans to buy health insurance approved by the government was an unprecedented, unwelcome, and unconstitutional expansion of federal power, and today's decision only strengthens and adds more momentum to the efforts of those of us who are working to repeal it. Congress should repeal this costly and burdensome law and replace it with the kind of commonsense reforms Americans really want.

Florida Court Strikes Down Obamacare; Republicans Respond

A Florida court has ruled Obamacare unconstitutional. This is the suit that Kentucky Attorney General Jack Conway declined to join on the grounds that it was frivolous, yet another example of Conway's questionable legal judgment.

Republicans have been quick to respond to the Florida ruling.

First, from Senate Republican Leader Mitch McConnell, who filed an amicus brief in the case:

This ruling confirms what Americans have been saying for months: The health spending bill is a massive overreach and Democrats ‘exceeded the bounds’ of Congressional authority under the Constitution in passing the law with the individual mandate. Rather than penalizing Americans if they don’t buy a particular product that Washington decides is best, we should repeal this health spending bill and replace it with commonsense reforms that will actually lower costs, prevent unsustainable entitlement promises and make it easier for employers to start hiring again

And from Sen. Rand Paul:

It is highly encouraging to see the judge in this case properly ruling that the government takeover of healthcare is unconstitutional. . . . I look forward to taking up the fight in the Senate to seek an end to this misguided big-government solution to an issue better addressed in the free market.

Kentucky House Leader Jeff Hoover, who takes on Conway's failure to join the suit:

Today’s decision by Federal Judge Roger Vinson in Florida that the entire Federal health care reform bill is unconstitutional further supports our assessment more than a year ago that the health care bill in itself goes against the rights set out to states and individuals by our forefathers.

Today’s ruling is the second such ruling that all or portions of the health care reform bill are unconstitutional, and upholds the basis of individual freedoms against the overreach of government that so many Kentuckians oppose. It’s why we in the House Republican Caucus were the first to call on the Attorney General last January to join the other states filing suit against the health care reform bill.

We again call upon Attorney General Jack Conway to join the lawsuit filed by other states questioning the constitutionality of this law. In the meantime those of us who believe that health care reform in its current state is flawed will continue supporting those states seeking to uphold the constitution, despite the failure of our Attorney General to heed the call of House Republicans and a majority of Kentuckians.

Sen. Barrasso Gives GOP Address

Sen. John Barrasso (R-WY) gives this week's Republican address. Barrasso, a doctor, attacks Obamacare and promises a Senate vote "to repeal and replace" it. He points out that the supposed cost-savings from Obamacare have not materialized. To the contrary, our premiums have gone up.

McConnell Files Amicus Brief in Obamacare Challenge

Senate Republican Leader Mitch McConnell has filed a friend of the court brief in the 20-state challenge against Obamacare. This is the suit that Kentucky Attorney General Jack Conway refused to join.

McConnell's brief focuses on the unconstitutional nature of the mandate that citizens purchase health insurance or face a fine.

This is a constitutional conservative's dream brief. It cites McCollough v. Maryland, Federalist 45 (Madison) and parses the third prong of the Lopez. In many ways, it briefs the TEA party point that Congress has ignored the limitation of enumerated powers to hijack the police powers that the Framers left the states.

According to Politico, McConnell's brief states,

that the requirement that nearly all Americans buy insurance “dramatically oversteps the bounds of the Commerce [Clause] which has always been understood as a power to regulate, and not to compel, economic activity.” He also argues that if the mandate is deemed constitutional, there will no longer be any real limit on Congress’ power to regulate citizens’ activity.

Politico, by the way, has the brief in its entirety. It was written by Carrie Serverino at the Judicial Crisis Center. Oral arguments will take place next month in the Federal District Court for the Northern District of Florida.

McConnell gets criticized by some conservatives as not a true believer in their cause. What this brief makes clear, however, is that freed from the constraint of advancing President Bush's legislative agenda, McConnell is a constitutional conservative in the best sense. He loves the history of the framing of the constitution and has a deep respect and understanding of the constitution as a blueprint for government -- a constraint on governmental action to protect liberty.

Way before the TEA parties arose in the summer of 2009, McConnell was one of the Federalist Society's most loyal supporters. He speaks regularly at its national convention as well as many local chapters. Sure, it's trendy to run around with tri-corn hats these days, but the Federalist Society's has had a profile of James Madison for its logo for 25 years.