Republican Study Committee (RSC) – The Caucus of House Conservatives

Yes, Virginia…ObamaCare is unconstitutional.

All the smart people in the political, media and legal classes know that ObamaCare is constitutional and anyone who says otherwise is frivolous. This faux consensus, however, does not include a U.S. district court judge in Virginia, who yesterday rejected the Administration’s argument that one of the key constitutional challenges should be dismissed outright. Now the case will proceed to arguments on the merits this fall.

The White House actually put out a statement on the decision analogizing opposition to ObamaCare to opposition to the Civil Rights Act. The point of this exercise is to intimidate and demonize Virginia Attorney General Ken Cuccinelli and the other states that have sued, rather than addressing the substance of their claims. And little wonder, after reading Judge Henry Hudson’s opinion.

The strongest constitutional case against ObamaCare turns on the individual mandate, the requirement that everyone buy health insurance or else pay a penalty. Judge Hudson notes that ObamaCare “literally forges new ground and extends Commerce Clause powers beyond its current high watermark.” The core question is “whether or not Congress has the power to regulate—and tax—a citizen’s decision not to participate in interstate commerce,” as Judge Hudson rightly notes.

We have been instructed that the individual mandate is constitutional under the Commerce Clause, full stop. If so, why did the Justice Department think it necessary to fortify this argument with a new theory that the mandate is also sanctioned by the taxing power? During the health-care debate, Democrats vociferously denied that the penalty was a tax at all, including the President himself, who said in an ABC interview last September that “I absolutely reject that notion.” At any rate, Judge Hudson also points out that this power is “not without limitation” either.

Judge Hudson concluded that “this case raises a host of complex constitutional issues” and “unquestionably, this regulation radically changes the landscape of health insurance coverage in America.” Liberals may be forced to take ObamaCare opponents seriously after all.

via Republican Study Committee (RSC) – The Caucus of House Conservatives.

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