Constitutional Challenge to Obamacare

As soon as President Obama signed the new healthcare reform act (Patient Protection and Affordable Care Act) into law on March 23, 2010, AFLC Co-Founders and Senior Counsel David Yerushalmi and Robert Muise electronically filed the first federal lawsuit challenging the constitutionality of the Act.  The case was filed in federal court in Detroit, Michigan.

At the heart of this lawsuit is the question of whether Congress has the authority under its Commerce Clause power, which essentially allows the federal government to regulate interstate commerce, to mandate that private citizens purchase minimum essential health care coverage under penalty of federal law.  At no time in our Nation’s history has Congress ever sought to exercise such power, nor, for that matter, has it ever assumed that it had the authority to do so.  In fact, in 1994, the Congressional Budget Office made the following relevant observation:  “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action.  The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

Shortly after filing the federal lawsuit, Yerushalmi and Muise asked the court to issue a preliminary injunction, seeking to temporarily stop the enforcement of the individual mandate provision of the Act pending the final resolution of all claims asserted in the litigation.  Because the question of whether Congress exceeded its constitutional authority by enacting the individual mandate is a purely legal question, the attorneys argued that the court should consolidate the hearing on the motion for a preliminary injunction with a ruling on the merits of the Commerce Clause claim.  The court agreed, and the case was argued on July 21, 2010.

On October 7, 2010, Judge Steeh issued his ruling.  As an initial matter, it is important to note that in this ruling, Judge Steeh found that the plaintiffs bringing the action—four Michigan residents who did not have health insurance and who objected to the federal government forcing them to purchase such insurance—had established a sufficient constitutional injury to have “standing” to challenge the law and that the challenge was “ripe” for review, that is, the judge was convinced that even though the individual mandate did not take effect until 2014, he should nonetheless decide the matter now for prudential reasons.

Having dealt with these initial jurisdictional issues, Judge Steeh then ruled on the merits of the challenge to Congress’ Commerce Clause authority.  In doing so, he agreed with the argument advanced by Obama’s Department of Justice that the Constitution granted Congress the authority to force private individuals under penalty of federal law to engage in a commercial transaction (purchasing health insurance) that they would otherwise not engage in.  Judge Steeh, acknowledging that this was “an issue of first impression,” stated, “While plaintiffs describe the Commerce Clause power as reaching economic activity, the government’s characterization of the Commerce Clause reaching economic decisions is more accurate.”  Consequently, under this view of the Constitution, Congress can regulate virtually every aspect of our lives.  For example, Congress could quite literally compel us under penalty of federal law to buy certain “healthy” foods, take vitamins, exercise three times a week, or join a health club.  And the “decisions” it regulates need not be conscious decisions.  Indeed, many young, healthy people have not given any thought as to whether they should purchase health insurance.  Yet, Congress can still regulate these economic “decisions” (in reality, non-decisions) under Judge Steeh’s ruling and President Obama’s view of the Constitution.

This decision was appealed to the U.S. Court of Appeals for the Sixth Circuit, which sits in Cincinnati, Ohio.  Muise argued the case before a three-judge panel.  The acting Solicitor General of the United States argued for the government.

Muise and Yerushalmi at Appellate CourtIn a split decision (2 to 1), the Sixth Circuit upheld the individual mandate.  Yerushalmi and Muise filed the first petition to the U.S. Supreme Court following appellate review, asking the Court to review the case and strike down the individual mandate provision of Obamacare—a result that would essentially halt the government’s takeover of the healthcare industry.

UPDATE (February 8, 2012): AFLC Senior Counsel Robert Muise and David Yerushalmi file brief in the U.S. Supreme Court, asking the Court to strike down Obamacare.  Read the brief here.

UPDATE (June 28, 2012): U.S. Supreme Court, per Chief Justice Roberts, upholds individual mandate under Congress’ taxing and spending power.  Read opinion here.