Jay Sekulow

In May, I told you about an important brief we filed at a federal appeals court urging that our federal lawsuit challenging the constitutionality of ObamaCare go forward.

Today, we filed an additional brief that bolsters our argument. In this brief, posted here, we reject the Justice Department's position that the individual mandate is constitutionally permissible under the Commerce Clause.

In a brief filed with the U.S. Court of Appeals for the District of Columbia Circuit, we argue the individual mandate, which forces Americans to purchase health insurance, is unconstitutional: "There is no American tradition of forcing unwilling individuals to operate a business or buy a good or service in the name of 'regulating commerce,' and it is not a coincidence that the Supreme Court's Commerce Clause cases upholding regulation under the 'substantial effects' test have involved the regulation of ongoing commercial or economic activities, unlike Section 1501. Nothing in law or logic supports Defendants' novel extension of this federal regulatory authority to mere inaction, decisions, or thought processes that relate to an economic topic."

"Defendants' arguments based on the Commerce and Necessary and Proper Clauses are flawed and lack legal support," the brief asserts.

We also contend that the Department of Justice has done nothing to demonstrate that the constitutional rights of two of the plaintiffs have not been violated by the individual mandate provision under the Religious Freedom Restoration Act (RFRA).

The brief contends: "Defendants have not shown that Plaintiffs Lee and Seven-Sky failed to sufficiently allege that Section 1501 substantially burdens their religious exercise, nor have Defendants shown that the individual mandate, as applied to Lee and Seven-Sky, is the least restrictive means of furthering a compelling governmental interest."

The fact is that our legal challenge targeting the pro-abortion, government-run health care law is grounded in the Constitution. Conversely, the arguments put forth by the Department of Justice are legally flawed and, quite frankly, lack support in the text, history, or related Supreme Court jurisprudence of the Commerce Clause of the Constitution.

As you may recall, in our initial brief filed in May, we urged the appeals court to reverse a lower court decision which dismissed our lawsuit:

"The individual mandate is unconstitutional because it exceeds even the outermost bounds of Congress’s Article I authority and is inconsistent with the constitutional system of dual sovereignty that divides power between the federal and State governments," the brief contends. "Under the Commerce Clause, Congress cannot 'regulate' inactivity by requiring individuals to buy a good or service as a condition of their lawful residence in the United States. . . ."

In our lawsuit, we represent four U.S. residents and federal taxpayers: Susan Seven-Sky from New York, and three Texas residents - Charles "Eddie" Lee, Kenneth Ruffo, and Gina Rodriguez.

Oral arguments before the federal appeals court are scheduled for September 23rd. The Constitution and Supreme Court precedent are clear: the health care law oversteps the authority of Congress.

The individual mandate is at the heart of this law. It is constitutionally flawed and we believe ultimately will render the entire health care law unconstitutional.

We are confident we will prevail.


Jay Sekulow

Jay Sekulow is one of the foremost legal advocates in the area of constitutional law and religious liberties. As Chief Counsel of the American Center for Law and Justice (ACLJ), Jay Sekulow regularly appears before the United States Supreme Court, and is one of the most sought after advocates for religious liberty. Jay Sekulow is also a highly followed broadcaster and respected commentator.