GOP Leader Blog

GOP Leaders in States & Congress Unify in Suit Against Job-Killing Health Care Law
Posted by Kevin Boland on December 01, 2010
Last night, in response to news reports that Liberty University’s lawsuit against the job-killing health care law’s individual mandate was dismissed, the White House’s blog compared those who have filed a legal challenge to the health care law to people who opposed “the Social Security Act, the Civil Rights Act, and the Voting Rights Act,” stating that “challenges like this are nothing new.”  While legal challenges to laws Congress passes may be “nothing new,” the heart of the suit against ObamaCare - the burdensome individual mandate - is new, because it is an unprecedented power grab by the federal government that will diminish freedom and job-creation.   And unlike the Social Security Act, the Civil Rights Act, and the Voting Rights Act, the job-killing health care law was passed through Congress on a highly partisan vote, and signed into law over the objections of a majority of the American people.

But Republicans aren’t standing by while Democrats implement their job-killing health care law.  Speaker-designate John Boehner (R-OH) and other GOP Congressional leaders are meeting with newly-elected Republican governors this afternoon to discuss “a collaborative effort” to “pick apart the health care law,” in addition to other pressing issues, like jobs and spending.   One joint approach the GOP has taken so far is a legal challenge to the job-killing health care law centered around the unconstitutional individual mandate, which is weaving its way through the courts now.  

As the New York Times reported on Saturday, the unconstitutional individual mandate may well prove ObamaCare’s undoing: 
As the Obama administration presses ahead with the health care law, officials are bracing for the possibility that a federal judge in Virginia will soon reject its central provision as unconstitutional and, in the worst case for the White House, halt its enforcement until higher courts can rule….Virginia’s attorney general, Kenneth T. Cuccinelli II, a Republican who filed the Richmond lawsuit, argues that if Judge Hudson rejects the insurance requirement he should instantly invalidate the entire act on a nationwide basis.

Mr. Cuccinelli and the plaintiffs in the Florida case, who include attorneys general or governors from 20 states, have emphasized that Congressional bill writers did not include a ‘severability clause’ that would explicitly protect other parts of the sprawling law if certain provisions were struck down.  An earlier version of the legislation, which passed the House last November, included severability language.  But that clause did not make it into the Senate version, which ultimately became law.  A Democratic aide who helped write the bill characterized the omission as an oversight.

Without such language, the Supreme Court, through its prior rulings, essentially requires judges to try to determine whether Congress would have enacted the rest of a law without the unconstitutional provisions....Lawyers for Virginia have sought to turn one of the federal government’s arguments on its head.  They note that the health law explicitly refers to the insurance requirement as ‘an essential part’ of the act’s regulatory scheme, and that Justice Department lawyers — in pressing their point that the law permissibly regulates commerce — have called it the ‘linchpin.’  If it is so essential, Virginia’s lawyers have asked, why should a judge believe that Congress intended for the rest of the act to stand without it?  

Any illusion that the cases are not highly politicized was lost when Republican leaders raced this month to file friend-of-the-court briefs in Pensacola, and Democrats responded with briefs from state legislators and supportive economists.  Among the Republicans intervening in the case are Representative John A. Boehner of Ohio, the future speaker; 32 United States senators; and Gov. Tim Pawlenty of Minnesota, a possible presidential candidate.
As Speaker-designate Boehner wrote in USA Today earlier this year, “This is the first time in American history that Congress has passed a law mandating that you buy something simply because you're breathing...If the federal government thinks it can get away with this kind of power grab, it will think it can do anything.”   With the Pledge to America, Republicans made clear their commitment to repeal the job-killing health care law and replace it with better solutions.  Republicans will continue standing with small businesses and fighting to repeal this job-killing law to give entrepreneurs the freedom and certainty they need to put Americans back to work.
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