Debate over the constitutionality of the massive health care law passed in 2010 has focused on its “individual mandate”: the requirement that individuals buy health insurance, a requirement that the law’s defenders claim is authorized by Congress’s power to regulate interstate commerce. (I took issue with that argument here.)
But the individual mandate is not the only provision in Obamacare that violates the Constitution. It also violates the Tenth Amendment and limits on Congressional power under the Constitution’s Spending Clause, through its huge expansion of Medicaid, which imposes unfunded mandates on state governments. Florida and other states argue that Obamacare’s Medicaid expansion provisions are unconstitutionally coercive in violation of the Tenth Amendment under the principles laid down by the Supreme Court’s decisions in United States v. Butler (1936) and South Dakota v. Dole (1987).
On May 11, I filed an amicus brief in support of Florida’s challenge on behalf of a majority of Minnesota’s State House of Representatives and the leaders of the North Carolina and Minnesota legislatures. That brief explains how the health care law violates the “clear statement” rule in the Supreme Court’s Pennhurst decision by imposing vague, indefinite, open-ended additional burdens on states, including massive, unpredictable costs in the billions of dollars. Federal officials have issued over a thousand waivers of burdensome rules imposed by Obamacare, mostly to unions or other entities with political connections. Meanwhile, HHS officials have vastly expanded the reach of other burdensome provisions of the law. For example, they have largely nullified the law’s grandfather clause, which was put into the law to keep Obama’s broken promise to let you keep your existing health insurance if you like it. They also issued a rule rewarding end-of-life counseling, even though such a provision was removed from the bill prior to passage after the so-called “death panels” controversy.
The brief also explains why Obamacare’s individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and is not justified under a “cost-shifting” rationale.
As the brief explains, Obamacare’s “ambiguity leaves states unable to knowingly . . . consent to its conditions, and its vagueness is aggravated by the vast discretion and virtual blank check it gives to federal officials to implement and waive major provisions,” the “ACA’s costs are extremely unpredictable, further preventing states from being able to voluntarily and knowingly consent,” the “ACA’s complexity accentuates its vagueness” and the “ACA’s ambiguity and violation of states’ reasonable expectations make its pressure more impermissibly coercive.”
Law Professor James Blumstein, a constitutional and health law expert and adviser to former Gov. Phil Bredesen (D-Tenn.), also filed an amicus brief arguing that Obamacare violates contractual principles incorporated into the Spending Clause by Supreme Court rulings. On behalf of the South Carolina Chamber of Commerce, Tom Christina filed a brief arguing that Obamacare “unconstitutionally commandeers state legislatures and executive authorities and renders accountability to the electorate impossible.” The Chamber argues that the law “infringes on a constitutionally-protected attribute of the states’ residual sovereignty by explicitly promising individual tax credits directly to members of a state’s electorate if and only if the state establishes” the health insurance exchanges mandated by Obamacare on its own rather than having the federal government create such exchanges. That brief and some other briefs challenging Obamacare are briefly summarized at this link.
Earlier, I filed an amicus brief in the Florida trial court for Minnesota Governor Tim Pawlenty and Rhode Island Governor Donald L. Carcieri.
Regardless of whether it is constitutional, Obamacare is also harmful to the economy, medical innovation, and the health care system. Earlier, I discussed some of the bad effects of Obamacare on patients, employers, consumers, and the insurance market.