As of this writing, 14 states have joined in the lawsuit headed by Attorney General Bill McCollum of FL suing the federal government’s recent health care law stating that it violate the Commerce Clause, forces states to cover programs they can't afford, and forces every American to purchase health care insurance. Some pundits say that the Supreme Court will not overturn the law but they have overturned similar laws and all hope is not lost.
In 1936, the Conservative Supreme Court led by Chief Justice Charles Evans Hughes overturned several of Franklin D. Roosevelt’s New Deal programs. To get back at the court, President Roosevelt sought to do some “court packing” by proposing the Judicial Reorganization Bill which would allow the president “to name a new federal judge for each judge who didn't retire by 70 1/2” and of those, six would be added to the Supreme Court. The president received quite a pushback from both parties, but refused to compromise. In the end, he not only lost the bill but the Democrats lost control of Congress in the next election.
Opponents of the law see Chief Justice Roberts and Justices Alito, Thomas and Scalia as the conservatives who could vote with the states in overturning the new law and Justice Kennedy as the deciding factor. The 1995 case United States vs. Lopez gave us an insight into Kennedy’s view of the Commerce Clause. Justice Kennedy sighted that Congress is limited in their powers under the Commerce Clause. If Congress could “regulate local acts of gun violence simply because it had a local impact”, then they could nationalize the police force on the theory that all crime has an economic impact. Supporters of the law state that insurance coverage has an economic activity. This may be true but right now insurance is regulated by the state. In the Lopez case, the Rehnquist Court stated that Congress had overstepped its boundaries in regards to the 10th Amendment.
Congress and the president want to make not purchasing health care insurance a crime punishable by a fine or jail time. If the Supreme Court doesn't stop the health care bill, then what is to stop Congress from passing bills mandating that we buy a General Motors car every year? Congress could take their win as a ruling that they can force us to purchase anything even if we don't want it. In Gonzales v. Raich (2005), Justice Clarence Thomas stated that “If Congress can regulate this [marijuana] under the Commerce Clause, then it can regulate virtually anything – and the federal Government is no longer one of limited and enumerated powers."
We must support any Governor, Lt. Governor, or Attorney General who joins the fight against this unconstitutional law. It is vital that we support congressional candidates who will work to repeal and replace ObamaCare with a free market system that includes tort reform. We can win this fight but we have to continue to make repeal and replace a theme of this year’s mid-term elections.