- The Washington Times - Wednesday, December 15, 2010

ANALYSIS/OPINION:

Virginia put a whammy on Obamacare this week by winning a federal court ruling saying the “individual mandate” is unconstitutional. Today’s oral arguments in a separate case in a Florida federal court promise to make it a double-whammy.

As in the Virginia case, the plaintiffs in Florida v. U.S. Department of Health and Human Services argue Congress has no authority to compel individuals to purchase goods or services. Florida adds 19 other states, a national business organization and two individuals to the case, reinforcing the standing to bring suit.

The National Federation of Independent Business (NFIB), with more than 350,000 member-businesses nationwide, joined the suit because of the mandate’s devastating economic effects. “As soon as the law was enacted, our members were demanding action from us,” said Karen Harned, executive director of the NFIB Small Business Legal Center.

Objections to the mandate are straightforward. As Judge C. Roger Vinson explained in a procedural ruling earlier in the Florida case, “the power [claimed by the administration] is simply without precedent.” Never before has the federal government presumed not just to regulate economic activity, but to order somebody to participate in such activity.

A second argument is more technical but no less important. The states say onerous new provisions for Medicaid - a joint federal-state program - violate their sovereignty under the Constitution’s 10th Amendment. They warn Obamacare would “commandeer state governments.” It would violate the holding of the 1987 case of South Dakota v. Dole, which forbids the federal government to “pass the point at which ‘pressure [against the states] turns into compulsion.’” Similarly, in New York v. United States in 1992, the Supreme Court ruled, “the federal government may not compel the states to enact or administer a federal regulatory program.”

The Congressional Research Service reports the states combined would be forced to spend between $20 billion and $43 billion through 2019 implementing the new Medicaid provisions. Florida estimates its compliance costs at more than $1.2 billion annually by that year. Yet if Florida tries to “opt out,” as the Obama administration blithely suggests, and handle the same caseload on its own, it would face a “gargantuan tax increase” of more than 50 percent.

The administration’s legal briefs threaten a “broad scope of Congress‘ power” that “can include compelling activity when necessary and proper.” This is commerce at the point of a gun. As Florida Deputy Attorney General Joseph Jacquot told The Washington Times, “Congress didn’t dare cross this line before.”

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