Legal Smackdown For Obamacare

Jay Sekulow

8/12/2011 12:01:00 AM - Jay Sekulow

It is a critical step forward to undoing ObamaCare.

The 11th Circuit Court of Appeals today declared the individual mandate, the provision forcing Americans to purchase health insurance, unconstitutional.

In a split decision, posted here, the court found that "the individual mandate contained in the Act exceeds Congress's enumerated commerce power."

"What Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die," the opinion said. The 2-1 ruling marks the first time a judge appointed by a Democrat has voted to strike down the mandate. Judge Frank Hull, who was nominated by former President Bill Clinton, joined Chief Judge Joel Dubina, who was appointed by George H.W. Bush, to strike down the mandate. Judge Stanley Marcus, in a dissenting opinion, said the mandate is constitutional. He was also appointed by Clinton. The ACLJ's summary of the 11th Circuit's opinion is posted here.

The court concluded:

This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives.

We agree. This is the argument we made in our amicus brief that we filed in this case on behalf of 74 Members of Congress and more than 70,000 Americans. Our amicus brief is posted here.

While the appeals court did not declare the entire law unconstitutional, by striking the individual mandate, the entire law is clearly in jeopardy. The individual mandate is such a core provision of ObamaCare, that without it, it's very difficult to see how this law can be salvaged.

As you know, we're directly involved in challenging ObamaCare as well. We're preparing for oral arguments to be presented to a federal appeals court in Washington, D.C. September 23rd urging the court to reinstate our lawsuit challenging the individual mandate. In our latest court filing, posted here, we contend that the individual mandate violates the Commerce Clause, an argument “grounded in the Constitution.”

There's still a lot of active litigation to play out. Keep in mind that all legal roads lead to the Supreme Court. But today's decision gives us even more hope that this troubling health care law ultimately will be put to rest.