Obamacare is unconstitutional for several different reasons

In upholding Virginia’s challenge to the constitutionality of the mandate on December 13, 2010, U.S. District Court Judge Henry Hudson wrote:

“A thorough survey of pertinent Constitutional case law has yielded no reported decisions from any appellate courts extending the Commerce Clause or the General Welfare Clause to encompass regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce or role in a global regulatory scheme. The unchecked expansion of Congressional power to the limits suggested by the Minimum Essential Coverage provision would invite unbridled exercise of federal police power. At its core, this dispute is not simply about regulating the business of insurance—or crafting a scheme of universal health insurance coverage. It’s about an individual’s right to choose to participate.”   Judge Henry E. Hudson, Memorandum Opinion, Commonwealth of Virginia v. Kathleen Sebelius, Secretary of the Department of Health and Human Services, 10CV188-HEH, December 13, 2010, p. 33.

The government has never required people to buy any good or service as a condition of lawful residence in the United States.”   The Congressional Budget Office, “The Budgetary Treatment of an Individual Mandate to Buy Health Insurance,” CBO Memorandum, August 1994, p. 1.    http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/48xx/doc4816/doc38.pdf

Seventy percent of Americans oppose the individual mandate. See Henry J. Kaiser Family Foundation, “Kaiser Health Tracking Poll—August 2010,” August 30, 2010, athttp://www.kff.org/kaiserpolls/8093.cfm (January 12, 2011). Other polling has shown persistent public opposition.

Thus far over half of all the states, plus the 350,000-member National Federation of Independent Businesses (NFIB), have filed suit challenging the constitutionality of the mandate, while legislation opposing it has been introduced in 42 states. The NFIB claims that the mandate deprives its members of their liberty and property interests without due process of law in direct violation of the Fifth Amendment of the Constitution.  (~Heritage Foundation)

Congress, in this instance, is invading the traditional authority of the states in regulating health insurance within their own borders. As George Washington University Law Professor Jonathan Turley has written, “There is a legitimate concern for many that this mandate constitutes the greatest (and perhaps the most lethal) challenge to states’ rights in U.S. history. With this legislation, Congress has effectively defined an uninsured 18-year-old-man in Richmond as an interstate problem like a polluting factory. It is an assertion of federal power that is inherently at odds with the original vision of the Framers.  Jonathan Turley, “Is the Health Care Mandate Constitutional?” USA Today, March 31, 2010, athttp://www.usatoday.com/news/opinion/forum/2010-03-31-column31_ST_N.htm (January 12, 2011)

May I remind you: presidential candidate Obama opposed an individual mandate because he did not believe it was enforceable.  He and his administration have flip-flopped.    Michael Cooper, “It Was Clinton Versus Obama on Healthcare,” The New York Times, November 16, 2007,  http://www.nytimes.com/2007/11/16/us/politics/16facts.html (January 12, 2011).

Moreover, the structure of fines and penalties in the bill was based on President’s Obama’s 2010 proposal. During their consideration of the bill, Senators stripped administration-proposed criminal sanctions, including jail terms, against recalcitrant citizens.  The coercion that remains in the law is a penalty or tax.  The Congressional Budget Office estimates that the penalty/ tax for failure to comply with the individual mandate would yield $17 billion in revenue to the IRS over the period 2010–2019. (Douglas W. Elmendorf, Director, Congressional Budget Office, letter to Nancy Pelosi, Speaker, U.S. House of Representatives, March 20, 2010.)  Remember that candidate and President Obama and his acolytes and media have repeatedly said there would be no new taxes on families making less than $250,000 (which they later revised to $200,000), yet they argued before the Supreme Court that this was a tax.

Obamacare has already produced the unintended consequence of raising health insurance premiums.

“Here’s why: A key feature of the House and Senate health bills would prevent insurance companies from denying coverage to anyone with preexisting conditions. The new coverage would start immediately, and the premium could not reflect the individual’s health condition. Consider: 27 million people are covered by health insurance purchased directly, i.e. outside employer-based plans. The average cost of an insurance policy with family coverage in 2009 is $13,375. A married couple with a median family income of $75,000 who choose not to insure would be subject to a fine of 2.5 percent of that $75,000, or $1,875. So the family would save a net $11,500 by not insuring. If a serious illness occurs — a chronic condition or a condition that requires surgery — they could then buy insurance. Since fewer than one family in four has annual health-care costs that exceed $10,000, the decision to drop coverage looks like a good bet. For a lower-income family, the fine is smaller, and the incentive to be uninsured is even greater.  The story is similar for single people. The average cost of an individual policy is $4,800. An individual with earnings of $50,000 would face a fine of $1,250 and would therefore save $3,550 by not insuring.”  ~ Martin Feldstein, professor of economics at Harvard University and president emeritus of the nonprofit National Bureau of Economic Research, was chairman of the Council of Economic Advisers from 1982 to 1984. He is an independent outside director of the pharmaceutical company Eli Lilly. http://www.nber.org/feldstein/washingtonpost_110909.html

Next, but by no means less important, the process used by Harry Reid, Nancy Pelosi and Barack Obama to pass the legislation was unconstitutional and unprecedented.  Director of the Stanford Constitutional Law Center at Stanford Law School and former-federal judge Michael McConnell explains, No bill can become law unless the exact same text is approved by a majority of both houses of Congress.”


The Constitution requires that a single version of legislation be passed by both houses of Congress and sent to the President for signature.  That did not happened with Obamacare.  The House and Senate initially were working on two separate, different versions over 2000 pages each.  Speaker of the House Nancy Pelosi (D-CA) endorsed the so-called Slaughter Rule to send the Senate-passed Obamacare bill to the President without a direct up-or-down vote in the House.  Under this procedure, the House voted on a rule setting up debate.  The House then skipped a vote on the Senate-passed version of Obamacare and moved directly to a vote on reconciliation amendments to that Senate-passed bill.  Then the House deems the Senate bill to have passed the House without a direct vote.  As Pelosi infamously proclaimed, “We have to pass the bill to see what’s in it.”  The Senate version was sent to Obama and he signed that version.  Then the legislation went back to Congress to consolidate the differences between the House and Senate versions.  Such a process, the so-called Slaughter Rule, has been used before with budget bills at the committee level, but the outrageously arrogant Pelosi, Reid and Obama used this unconstitutional trick on legislation affecting one fifth of the economy, and opposed by a majority of the public.


The consolidation and amendment process on this questioned “law” is on-going in Congress and the HHS federal agency that is designated to implement it.  HHS Secretary Sibelius has already unilaterally decided that some portions of the law will not be implemented, and the administration has decided to exempt certain large groups from provisions of the law, and the estimates on the cost of the law continue to climb into trillions of dollars, this for a law that was proposed to “Improve the quality and reduce the cost of healthcare.”

If Obamacare survives the case currently under consideration by the Supreme Court, it is guaranteed to face other serious constitutional challenges on enumerated powers, 5th Amendment, racial discrimination, and unequal state treatment and possibly hearings demanding recusal of Associate Justice Elena Kagen.

About budbromley

Life sciences executive, retired
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