Senate Minority Leader Mitch McConnell has written a “dear colleague” letter to Senate Republicans, declaring his intention to file an amicus brief in the federal court in Florida, challenging the notorious “individual mandate” provision of President Obama’s health care bill.
McConnell’s letter restates his conviction that ObamaCare should be repealed, but since that can’t happen until someone else sits in the White House, he’s determined to grab some legal wire cutters and begin defusing its most dangerous features. None is more troubling to Constitutionalists than the individual mandate, in which Congress moves beyond regulating economic activity, and begins “mandating its citizens engage in economic activity – that they purchase a particular product,” as McConnell puts it.
The amicus brief will also argue that accepting the constitutionality of the individual mandate would remove “any meaningful limit on Congress’ power to regulate its citizens under the Commerce Clause.” This clause has already been used as a bear trap to capture any activity that might conceivably involve a transfer of power across state lines, but McConnell argues that forcing individuals to buy health insurance would inflate Congress’ specific power into “a general police power, all but eliminating the constitutional distinction between federal and state regulatory authority in our federal union.”
McConnell’s brief will enhance the increasingly successful legal pressure against the individual mandate. Twenty state governments, plus the National Federation of Independent Business, have filed a suit against ObamaCare in the Florida federal court. Writing in the Richmond Times-Dispatch, Ilya Somin reports federal District Court Judge Roger Vinson dismissed federal government attempts to dismiss the suit. In his ruling, Judge Vinson said claims the individual mandate is authorized by existing Supreme Court precedent is “not even a close call.”
Judge Vinson was also unimpressed by government attempts to portray the penalties for failure to obey the mandate as a constitutionally permissible “tax.” Middle-class voters many recall they were promised none of their taxes would be going up under Obama. The Judge remembers that, too. Financial penalties for refusing to comply with a coercive law are not “taxes,” any more than a speeding ticket is a “tax” on someone’s preference for driving at a hundred miles per hour.
Senator McConnell’s letter to his colleagues is an invitation for them to join him in an uphill battle against “the accumulation of excessive power.” The individual mandate is a critical component of even the most threadbare illusion that ObamaCare could work. A successful challenge could prove to be a stake through the heart of the entire enterprise… and a reminder to President Obama and his party that the Constitution is not just a speed bump on the road to fulfilling their ambitions.