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BARBER: Pulling the plug on Obamacare

Court challenges will cast critical eye at constitutionality

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Obamacare is like turnip greens: bitter and hard to swallow, but Mommy made you choke them down anyway. The difference is that turnip greens are constitutional (though perhaps they shouldn't be). They're also likely to extend your life rather than cut it short.

As demonstrated by the 2010 Election Day massacre, the government takeover of health care, the euphemistically tagged "Patient Protection and Affordable Care Act," infuriated voters as Democrats cooked it up and force-fed it to America for Christmas Eve dinner.

Despite being assured by former House Speaker Nancy Pelosi, California Democrat, that we needed to "pass the bill so [we] can find out what's in it," a recent Rasmussen poll reveals that a majority of Americans - having since found out what's in it - continue to favor its repeal.

Indeed, by granting more than 1,000 Obamacare waivers (read: payoffs) to a host of unions and corporations, the Obama administration has tacitly admitted this socialized medical monstrosity is neither "affordable," nor does it "protect patients."

Still, while Republican rooks maneuver to checkmate King Obama via legislative repeal, others have gone the judicial route. On Tuesday, in fact, Mathew D. Staver, founder of the Liberty Counsel and dean of Liberty University School of Law, will be the first to challenge the constitutionality of Obamacare at the federal court of appeals level. He will argue the case of Liberty University v. Geithner before the Fourth Circuit in Richmond, Va.

The Liberty Counsel officially represents both Liberty University and two private individuals in the lawsuit. Unofficially, it represents the majority of Americans.

Later that day, the Court of Appeals will also hear the case of Commonwealth of Virginia v. Sebelius, filed by Virginia Attorney General Kenneth T. Cuccinelli II. The cases will be argued seriatim (in succession) by each counsel, respectively.

The Obama-Pelosi-Reid triumvirate ambitiously maintains - against considerable evidence to the contrary - that Democrats' particular brand of health care reform is so important, so unique that the U.S. government is justified - for the first time in history - in forcing every American citizen to purchase his own untenable, unsustainable and demonstratively defective product under penalty of law. Obamacare categorically lays the groundwork for universal health care. They didn't just sell us a lemon, they squeezed it in our eyes and said, "pay up or else."

This is a case of first impression. That is to say, no Supreme Court case has ever allowed the federal government to force people into the stream of commerce. Neither has the high court ever permitted the federal government to compel its citizens to buy a government-defined product. If government has the authority to force unwilling citizens to purchase health insurance, then there is simply no limit to the power this mushrooming centralized mammoth can wield.

On Tuesday, Virginia will challenge the individual mandate, while the Liberty Counsel will go after both the individual and employer mandates. As with Virginia's case, the Liberty Counsel argues that Congress lacks authority under the Commerce Clause, the Necessary and Proper Clause, and the Taxing and Spending Clause to implement this unparalleled power-grab.

The Liberty Counsel also raises other constitutional objections, including issues relative to the First Amendment's Free Exercise Clause, the federal Religious Freedom Restoration Act, the First Amendment's Establishment Clause and the Fifth Amendment's Equal Protection Clause.

Mr. Staver commented on the case in advance of Tuesday's historic oral arguments: "It is the hope of many Americans that this lawsuit is a fast track to the ultimate demise of this overreaching health insurance law. This law represents an astonishing extension of the federal government into the personal and business decisions of Americans. If Obamacare should be upheld by the courts, then there are no limits on what Congress can do. I think it is clear that Congress far exceeded its authority under the Constitution."

Indeed, when one's stated goal is to "fundamentally transform America," the U.S. Constitution, as intended by our nation's founding visionaries, becomes a significant encumbrance rather than an instrument of freedom.

It's little wonder that exceeding constitutional authority has become the defining hallmark of this, the most radical presidential administration in American history.

J. Matt Barber is an attorney concentrating in constitutional law. He serves as vice president of Liberty Counsel Action.

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