Last week, I got together with Andy Schlafly to discuss a case he’s brought against Obamacare and how it could end up killing the law. What follows is a slightly edited transcript of our conversation.
Okay, Andy, if you could first of all, for people who aren’t familiar with your case, give us a wrap-up of what you’re doing with your case.
We knew this case would be going to the Appellate Court. The good news is that the District Court resolved all procedural issues in our favor. So the District Court rejected all of the objections by the government, where the government claims that we did not have standing somehow. This is what the government has been doing in a lot of the cases and they’ve been succeeding in many courts in avoiding judicial resolution of the merits of Obamacare. So many of the cases we see around the country, the merits of Obamacare are never reached, but it is being reached in this case.
Now, explain to people who aren’t familiar with your case the argument you’re making to the court.
The argument is simply this: Obamacare was passed in violation of Article 1, Section 7 of the Constitution which requires that revenue-raising measures originate only in the House of Representatives, not in the U.S. Senate. Well, Obamacare is a revenue-raising measure that originated in the U.S. Senate and therefore it’s in violation of Article 1, Section 7 which is known as the Origination Clause; therefore, it’s unconstitutional.
……..And there are good reasons for this. It’s not just simply a technicality. The House of Representatives is considered to be more responsive to the people. They’re elected every two years. Everybody in the House is up every two years and because of that, they’re closer to the people and they’re more accountable for revenue-raising measures — and that’s why only they are allowed to introduce revenue-raising measures so that there is someone there who’s accountable in the next election of the people for hitting them in the pocketbook. That did not happen with Obamacare though.
Now there have been some other cases that have gone through, but yours may have a better shot because you’re going to the 5th Circuit. Can you tell people why that is?
The 5th Circuit has more independence and it’s more conservative than the other Circuits. This is the only Circuit that has chastised Obama for his arrogant comments about Obamacare. There was a time when Obama even suggested the courts did not have the power to invalidate Obamacare and only the 5th Circuit criticized him for that. Only the 5th Circuit required the Obama Administration to explain itself and to admit that courts do have the power and the responsibility to invalidate laws that violate the United States Constitution.
So the 5th Circuit is a special Circuit. It has that history and, of course, it’s in Texas. Texas is willing to stand up to Washington, D.C. There have been close to 20 lawsuits brought by the state of Texas against the Obama Administration. So Texas has always been a leader in standing up against unconstitutional things that are done in D.C. So that’s why this is a superb venue to litigate the Constitution validity of Obamacare and yet no one else has done it before.
This is the first case that puts Obamacare before the 5th Circuit.
Now if you win this case at the 5th Circuit, what happens? It just goes to the Supreme Court or as a practical matter, does anything happen?
Sure, if we were to win this before the 5th Circuit, there would be tremendous fallout from that. Immediately people would recognize that Obamacare is unconstitutional and it’s on shaky footing as it is. A ruling against Obamacare by the 5th Circuit would probably be the last word on Obamacare because then it would collapse, most likely collapse.
The 5th Circuit could do this in any of a variety of ways. I mean they could use an alternative basis for invalidating Obamacare. There are only five votes on the U.S. Supreme Court for upholding Obamacare on very narrow grounds and it seems unlikely that that five vote coalition would hold together on every argument that we’ve got against Obamacare. In fact, that five vote majority was careful in saying that they’re not addressing other possible defects in Obamacare. They’re simply upholding it against the challenge that was brought in that case which was a very narrow challenge based on the Commerce Clause.
The court carefully said they’re not saying that Obamacare is constitutional on every other possible challenge.
Now, win or lose, you’re going to take it to the Supreme Court, right?
If we win, we don’t have to take it to the Supreme Court. That’s the job of the Obama Administration. They can try to take it to the Supreme Court, try to get their attention, try to get them to step in and as we’ve seen, the Supreme Court is not always anxious to jump in to correct in the view of something a Circuit did. The Supreme Court only takes about 75 cases a year and frequently there have been very controversial decisions by Appellate Courts that the Supreme Court has declined to get involved in. So if the 5th Circuit struck down Obamacare, it’s unclear how quickly or if the Supreme Court would get involved at all.
So this case could be the end of Obamacare. If you win this one in front of a court that may be inclined your way, that could be the end of it, right?
And last question: when does this go in front of the court?
It’s going to move quickly now; briefing it should be finished by the end of February. We expect a speedy oral argument and resolution now that we’re up on appeal and it’s been documented on appeal; the number is 20039 if you want to include that, before the 5th Circuit. The court moves quickly now.
Well, Andy, good luck and Godspeed. Thank you so much for doing this.