Category Archives: healthcare

ObamaCare ruling 2012: Who’s laughing now?

“Congress has crossed a fundamental constitutional line.”

United States Supreme CourtAs the nation awaits one of the most important Supreme Court decisions of our time, efforts to sway the decision toward upholding ObamaCare are not in short supply. Some have the thin veneer of news articles; others carry the weight of admonition by the President himself. One can only conclude that such efforts are based on a sober assessment that overturning at least one linchpin of the law is a very real possibility.

The editors of this newsletter recall vividly how the efforts of Messers Rivkin and Casey to call attention to the unconstitutionality of the 2010 healthcare law were met with derision by professors, legislators, and, unsurprisingly, reporters and news “analysts.”  The hearty laughs and chuckles have long since ceased.

Lest readers believe that the legal argument against ObamaCare is grounded in political ideology, the editors of this newsletter present excerpts from articles penned by Rivkin or Casey to summarize the 26 states’ case against the federal government and to emphasize what’s at stake for the nation. —Editors

ObamaCare mandates that every American, with a few narrow exceptions, have a congressionally defined minimum level of health-insurance coverage. Noncompliance brings a substantial monetary penalty.

·  The ultimate purpose of this “individual mandate” is to force young and healthy middle-class workers to subsidize those who need more coverage.
·  Congress could have achieved this wealth transfer in perfectly constitutional ways. It could simply have imposed new taxes to pay for a national health system. But that would have come with a huge political price tag that neither Congress nor the president was prepared to pay.

Instead, Congress adopted the individual mandate, invoking its power to regulate interstate commerce. The uninsured, it reasoned, still use health services (for which some do not pay) and therefore have an impact on commerce, which Congress can regulate.
Congress’s reliance on the Commerce Clause to support the individual mandate was politically expedient, but constitutionally deficient. Congress’s power to regulate interstate commerce is broad but not limitless.

Congress has crossed a fundamental constitutional line. Neither the fact that every individual has some discernible impact on the economy, nor that virtually everyone will at some point in time use healthcare services, is a sufficient basis for federal regulation.

Nowhere in the Constitution can we find a provision to support the notion that “the ends justify the means.”

At stake are the Constitution’s structural guarantees of individual liberty, which limit governmental power and ensure political accountability by dividing that power between federal and state authorities.

Upholding ObamaCare would destroy this dual-sovereignty system, the most distinctive feature of American constitutionalism.

The arguments advanced by ObamaCare’s defenders are flawed because they admit no judicially enforceable limiting principle marking the outer bounds of federal authority.
Messrs. Rivkin and Casey are lawyers who served in the Justice Department during the Reagan and George H.W. Bush administrations. They represented the 26 states in their challenge to ObamaCare before the trial and appellate courts.

The contents of this email include excerpts from an article that appeared March 21, 2012, with the headline: The Supreme Court Weighs ObamaCare.

Up or Down on ObamaCare: Texas Attorneys to Hear Live Debate

David Rivkin and Harvard Law Prof to Face Off June 15

Washington D.C. – As the U.S. awaits the Supreme Court decision on the Affordable Care Act (ObamaCare), the various factions pro and con continue to line up and weigh in on both whether and how the controversial law will stand.  David Rivkin, who led the 26-state case against the U.S. government in Florida’s 11th District Court (whose judge, Roger Vinson, ruled in the plaintiffs’ favor, will meet Harvard Law professor Einer Elhauge, author of amicus briefs that assert the legality of the individual mandate.  The debate is scheduled for 9:00 am, on Friday, June 15, at the Texas Bar Association’s Annual Conference in Houston.

For more information on the debate and the conference, visit

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Debate on ObamaCare’s individual mandate on display for attorneys

Constitutional Attorney David Rivkin to debate Harvard Law Professor at Texas Bar Association Meeting

The final word on the Obama administration’s signature health care law has yet to be spoken.  As the Supreme Court decision on the constitutionality of the Patient Protection and Affordable Care Act (aka ObamaCare) looms, organizations throughout the nation are lining up speakers and events to present their opinions—whether a pre-decision debate that might sway an undecided justice, or a post-mortem discussion on how the justices got it right or wrong.  Regardless of when the Supreme Court decision is handed down, the June 15 Texas Bar Association debate on the topic, the interchange promises to be both lively and substantive.

David Rivkin, an appellate attorney whom the Wall Street Journal credits with initiating the question of ObamaCare’s constitutionality and who represented the 26 states in the Florida health care lawsuit, will debate Harvard Law professor Einer Elhauge, who has filed amicus briefs asserting the legality of ObamaCare’s individual mandate.  The debate is scheduled for 9:00 am, on Friday, June 15, at the Texas Bar Association’s Annual Conference in Houston.

About The Texas Bar Association

The mission of the State Bar of Texas is to support the administration of the legal system, assure all citizens equal access to justice, foster high standards of ethical conduct for lawyers, enable its members to better serve their clients and the public, educate the public about the rule of law and promote diversity in the administration of justice and the practice of law.

The Texas Bar Association is the fifth largest organization of lawyers in the United States. The State Bar Act, adopted by the Legislature in 1939, mandates that all attorneys licensed to practice law in Texas be members of the State Bar. For more information, visit

Overturning ObamaCare isn’t ‘Judicial Activism’

If the Supreme Court upholds purchase mandates in health care, they will become a mainstay of federal regulation throughout the U.S. economy.


Since the Supreme Court’s historic three-day ObamaCare hearings in late March, the president and his supporters have tried to pressure the Justices into upholding that law, asserting that any other decision would overstep the court’s constitutional bounds. Ruling against ObamaCare would not be what the president called illegitimate “judicial activism,” but an appropriate exercise of the Supreme Court’s core constitutional role.

“Judicial activism” is one of those agreeably ambiguous terms that can support almost any criticism of the courts. Under our constitutional system, judicial activism entails judges rewriting rather than interpreting the laws, exercising “will instead of judgment,” in Alexander Hamilton’s phrase.

Measuring a federal statute like ObamaCare against the Constitution and finding it wanting is not judicial activism. This, as Chief Justice John Marshall noted in the early (1803) and much-quoted Marbury v. Madison case, “is of the very essence of judicial duty.”

This duty is not properly limited, as ObamaCare’s increasingly desperate supporters claim, to judicial enforcement of the Bill of Rights and other affirmative prohibitions on congressional power. The Constitution must be interpreted and applied as a whole, and its basic architecture—in particular the limitations inherent in the enumerated nature of Congress’s powers—is just as critical to the defense of individual liberty as are any of the other rights it guarantees.

The Framers assumed that the Constitution’s federalist architecture, dividing power between the federal government and the states (creating a “vertical” separation of powers to complement the “horizontal” separation among the three federal branches), would be the primary defense against governmental overreaching. Indeed, Hamilton argued in the Federalist Papers (No. 84) that adoption of a Bill of Rights “would even be dangerous” for the very reason that “[t]hey would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted.”

Accordingly, the Supreme Court always has measured federal statutes against both the Bill of Rights and the Constitution’s structural protections. It has struck down laws found wanting in either case.

To uphold ObamaCare’s insurance-purchase mandate as a legitimate exercise of Congress’s power to regulate interstate commerce, the court must find some neutral, judicially enforceable limiting principle that would maintain the Constitution’s balance of power between federal and state authority. That principle must keep the power to regulate interstate commerce from morphing into a general power simply to regulate the citizenry. The court has always ruled, correctly, that only the states have such a general “police” power under our Constitution.

No such limiting principle has yet been suggested because none exists. The best government lawyers have done is to claim that Congress imposed the insurance mandate as a means of regulating how people (especially the young and healthy) will pay for the health care they will someday use. That Congress would regulate Americans as future market participants and, having chosen insurance as the regulatory mechanism, it can require everyone to buy that insurance now. This is how insurance works—it must be obtained before the covered eventuality occurs.

But there is nothing magical about “insurance”—for health care or otherwise. If Congress can regulate Americans as future consumers (and everyone is a future consumer in dozens if not hundreds of markets), then it could equally impose any number of mandates on the citizenry today as a means of regulating the transactions in which they are expected to engage tomorrow, next week, or in 40 years.

Such mandates could require prepayment now for commodities or services to be consumed in the future, thereby benefiting today’s markets and consumers by injecting additional liquidity and perhaps decreasing their costs. Indeed, Congress could impose even more blatant cross-subsidizing mandates, as it did in ObamaCare, where health-insurance premiums paid by young members of the middle class are expected to defray the costs of health care being consumed by the less affluent.

If upheld, such purchase mandates would become a mainstay of federal regulation, offering Congress an easy way to cure the ill effects of constitutionally proper but economically dysfunctional schemes. With ObamaCare, Congress sought to offset ruinously expensive new insurance industry regulations, which barred normal underwriting considerations, such as a customer’s pre-existing conditions, by forcing all Americans to become insurance customers.

An identical approach would permit imposition of a similarly ruinous (but constitutional) “green” car sales requirement on automobile manufacturers, supported by a new (and equally unconstitutional) mandate that all Americans buy a new, “green” car at periodic intervals or pay a penalty. And so it goes.

There is virtually no economically unrealistic regulation—that forces companies to produce goods nobody wants to buy, or sets artificial prices—that could not be salvaged at least in the short run by an offsetting purchase mandate of some kind. Yet in the long run the resort to central planning, effected through such mandates, would fare no better in the U.S. than it did in the Soviet Union.

Although the policy merits of various mandates could be honestly debated, there simply is no neutral, judicially enforceable basis on which courts can determine which prepayment mandates Congress can impose as a means of regulating future transactions and which it cannot. In fact, if the courts were to scrutinize such mandates, as ObamaCare defenders suggest, striking down those they considered to be too onerous or preposterous (such as a “broccoli mandate”) the judges truly would be engaged in illegitimate judicial activism.

As the Supreme Court has consistently ruled in the past, the Constitution gives Congress only limited and enumerated powers. However vexing a particular problem may be, Congress can address it using only those powers. If its preferred solution requires the exercise of a power it was denied, such as a general police power, then Congress must think again. If, as in this case, Congress persists in adopting legislation that goes beyond its constitutional authority, the courts must invalidate it. That is not judicial activism. It is the fulfillment of the judiciary’s constitutional duty.

Messrs. Rivkin and Casey are lawyers who served in the Justice Department during the Reagan and George H.W. Bush administrations. They represented the 26 states in their challenge to ObamaCare before the trial and appellate courts.

A version of this article appeared April 24, 2012, on page A15 in some U.S. editions of The Wall Street Journal, with the headline: Overturning ObamaCare Isn’t ‘Judicial Activism’.


David Rivkin on the SCOTUS review and the last three days of ObamaCare

(Part II of II) David Rivkin goes live on Hour 2 of Bill Bennett’s ‘Morning In America’ and reviews the Supreme Court and their roles during last three days of the ObamaCare hearings and what to expect next.

Post your comments and thoughts on the SCOTUS ObamaCare hearings and what you think is going to happen next.

David Rivkin on the SCOTUS review and last three days of ObamaCare hearings

(Part I of II) David Rivkin goes live on Hour 2 of Bill Bennett’s ‘Morning In America’ and reviews the Supreme Court and their roles during last three days of the ObamaCare hearings and what to expect next.

Post your comments and thoughts on the SCOTUS ObamaCare hearings and what you think is going to happen next. Follow David Rivkin on Twitter, @DavidRivkin, for the latest news.

For more information, visit