27 Congressmen to Court: If Individual Mandate's Unconstitutional, Strike Down All Obamacare

January 9, 2012 - 12:27 PM
Lamar Smith

House Judiciary Chairman Lamar Smith (R.-Texas) (AP photo/Drew Angerer)

(CNSNews.com) – Twenty-seven members of Congress, including House Judiciary Committee Chairman Lamar Smith (R-Texas), have signed an amicus brief asking the U.S. Supreme Court to strike down the entire Obamacare law if it finds that the individual mandate provision is unconstitutional.

The Family Research Council filed the amicus curiae in the case challenging the constitutionality of the individual mandate of the Patient Protection and Affordable Care Act, commonly known as Obamacare.

The individual mandate is one provision in a larger law that also requires certain employers to provide government-approved insurance or face a penalty, establishes exchanges for government-approved insurance plans and requires insurers to cover pre-existing conditions.

Key to the high court’s decision will be whether striking down this provision would nullify the entire law. The legislation did not contain a severability clause. Severability would allow some parts of the law to be struck down while maintaining others.

Opponents argue that that the provisiom requiring individuals to buy health insurance is not constitutional, while the Obama administration contends that the Commerce Clause of the Constitution allows it.

Several lawsuits have been brought against the law, with some lower federal courts striking down the law and others affirming it.

Other members of Congress to join the brief are House Judiciary Subcommittee on the Constitution Chairman Trent Franks (R-Ariz.), Republican Study Committee Chairman Rep. Jim Jordan (R-Ohio), Rep. Mike Pence (R-Ind.), a candidate for governor of Indiana and senior House Judiciary members Rep. Louie Gohmert (R-Texas) and Rep. Steve King (R-Iowa).

Ken Klukowski, legal counsel for the Family Research Council, and Nelson Lund, a professor at George Mason University School of Law, co-authored the brief. The FRC’s earlier brief was cited in Florida U.S. District Judge Roger Vinson’s decision to strike down the entire Obamacare law as unconstitutional.

“After almost two years of impassioned debate, Obamacare will finally have its day before the Supreme Court,” Klukowski said in a statement. “The 'individual mandate' in Obamacare that requires all Americans to have health insurance is unconstitutional. And for the reasons we explain in this brief, 135 years of Supreme Court precedent show that this is one of those rare instances where striking down the individual-mandate provision requires the Court to strike down this entire 2,700-page law.

“We have high hopes that the Supreme Court will recognize that the individual mandate is unconstitutional, and will act to safeguard the freedoms of all Americans by holding the individual mandate 'nonseverable,' and strike down every part of Obamacare,” Klukowski continued.