Constitutional attorney David Rivkin predicts ObamaCare will die in Supreme Court

Says justices will uphold America’s federal system, preserve states’ rights

Published on August 5, 2011

by Colin Fuess

OfficialWire PR News Bureau

Former White House lawyer David B. Rivkin, Jr. and colleague Lee A. Casey began the debate in August 2009 with theirWashington Post article, “Constitutionality of Health Insurance Mandate Questioned.”

Now in their latest article for SCOTUSblog, “Why the Court Will Strike Down PPACA,” Rivkin and Casey predict that the Patient Protection and Affordable Care Act (PPACA, also known as “ObamaCare”) “will be unable to withstand the Court’s scrutiny” for the very reason Rivkin and Casey gave in 2009. ObamaCare’s individual mandate that almost all Americans must purchase health insurance is unconstitutional because it does not regulate commerce, but rather forces people into it.

“[A]ny exercise of the power to regulate interstate commerce must necessarily be based upon the regulation of some voluntaryactivity that either directly or indirectly affects interstate commerce,” write Rivkin and Casey (emphasis theirs).

Rivkin and Casey summarize and deftly demolish the Department of Justice’s defense of the PPACA. U.S. Attorney General Eric Holder’s representatives make arguments that to a layman’s mind border on the absurd. They insist that non-activity (not participating in the healthcare market) is still activity. Regarding the slippery slope of mandating every American buy insurance, they hope that “in the future, Congress will impose individual purchase mandates wisely and sparingly.” Finally, they claim that the healthcare industry is unique in that everyone will need it at some point, even though the same goes for other markets such as housing.

To further indicate that ObamaCare has little chance of survival, Rivkin and Casey cite past Supreme Court decisions that affirm the federal system of dual sovereignty: “The Supreme Court… has consistently held that there must be some areas of life, even where there may be some remote economic impact, that constitutionally remain within the States’ regulatory authority alone.”

The DOJ’s arguments are deficient, and Supreme Court precedent points to failure.

It is inevitable that the highest court in the land will hear at least one of the lawsuits against ObamaCare. Rivkin and Casey already know those will be ObamaCare’s last days.

SCOTUSblog is devoted to comprehensively covering the U.S. Supreme Court—without bias and according to the highest journalistic and legal ethical standards. The blog is provided as a public service and is sponsored by Goldstein, Howe & Russell, P.C. For more information, visit



2 thoughts on “Constitutional attorney David Rivkin predicts ObamaCare will die in Supreme Court

  1. David Leonardo

    I find you to be in knowing. I find your perception worthy. I have seen you on Fox Media.
    I would like to be able to ask you questions if you could find the time. My first question would be why has Monies, power and greed surpased the integrity of each individual?
    Has the constitution really been burned, buried or moved as with other artifacts?


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