Sensenbrenner: Judicial Action Necessary to Repeal New Health Care Law

By Fred Lucas | May 11, 2010 | 6:19 PM EDT

Rep. James Sensenbrenner (R-Wis.)

Washington ( – Since repeal is unlikely, the courts may be the only way to defeat the new health care law, Rep. James Sensenbrenner (R-Wis.) said on Tuesday.

“Judicial action is the only way to stop Obamacare, at least until January 2013, and the reason for that is that political action will be impossible, even if Republicans win both houses of Congress in the November election, because any major change to Obamacare, which is an entitlement program, and in most cases not subject to annual appropriations by the Congress, will be vetoed by President Obama,” said Sensenbrenner, former chairman of the House Judiciary Committee.  

"So, we have to put all of our eggs in the judicial basket,” he added.

Sensenbrenner made his remarks at a forum on the constitutionality of the health care law sponsored by the conservative watchdog group Judicial Watch.

On the dais with Sensenbrenner was Randy Barnett, professor of legal theory at Georgetown University Law Center, who argued that there was a strong political element to overturning the new health care law, enacted in March, which requires every person to buy health insurance or receive it from their employer, while states are required to establish insurance exchanges.

“You cannot separate politics from the courts,” said Barnett.

“One of the things that supporters of this bill are depending on is that the Supreme Court generally defers to Congress, and especially defers to Congress when Congress passes something that is very popular, if something has widespread support, or is considered to be imperative to the national security of the country,” Barnett said.

“It’s all of these imperatives that are brought to bear on the Supreme Court that causes them to give the benefit of the doubt to their co-equal branch of government,” he said. “That all changes either when a bill turns out not to be necessary to the security of the country or very, very unpopular.”

At least 20 states are challenging the constitutionality of the health care law in court. Barnett said that individuals have also mounted legal challenges. The chief argument against the new law is whether the government can legally compel people to enter into an economic agreement with a private company, i.e., forced to buy health insurance.

The Obama administration has said the health care legislation is constitutional based on the Commerce clause of the Constitution. Sensenbrenner said the Supreme Court ruled in 1868 that insurance did not constitute commerce.

Barnett explained that there are three standards of constitutionality. The first standard is what the Constitution says and means; the second is what the Supreme Court has said it means; and the third standard is based on “how to count five votes.” There are nine justices on the Supreme Court.

“Under the original Constitution, this would not be a difficult case,” Barnett said. “This [law] would not be constitutional. But that is not the realm in which we measure the Constitution. This will be predicting how the Supreme Court has ruled and knowing how to count to five.”

“Never in the history of the country has there ever been a law that mandated people who are not engaged in economic activity to be engaged in economic activity,” Barnett said. “There is another word for that: unprecedented.”

According to the Congressional Budget Office (CBO), the federal government has never before mandated that Americans buy any good or service. In 1994, when Congress was considering a universal health care plan formulated by then-First Lady Hillary Clinton, the CBO studied the plan’s provision that would have forced individuals to buy health insurance and determined it was an unprecedented act.

The CBO stated: “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique.

“First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government,” it added.