DownsizeDCFoundation.org
October 20, 2011
Can States Nullify Obamacare?
By James Wilson

If you had a chance to stop Obamacare, AND advance the Tenth Amendment right of the various states, to interpose and even to nullify actions that restrict the liberties of individual citizens, would you want to take it?

There has been a flurry of activity in the Supreme Court as the U.S. Department of Justice and other litigants have filed petitions seeking review by the nation’s highest court of the constitutionality of Obamacare. There is no doubt that the Court will agree to hear most of these cases. But one case might not make the cut.

The Commonwealth of Virginia has challenged the Obamacare provision that mandates individual Virginians must purchase a health insurance policy approved by the federal government.

The Virginia suit was decided on the merits, in favor of Virginia, in the district court, but was then reversed on appeal by the 4th Circuit Appeals Court. The appeals ruling was NOT on the merits (or Obamacare probably would've lost), but on the ground that Virginia had no legal "standing" to sue. This panel, all of whom were appointed by a Democratic President, ruled that . . .

  • Virginia wasn't harmed because the individual mandate doesn't require the Commonwealth to do anything. 
  • Virginia had no right to defend its citizens against unconstitutional federal laws.

Had these appeals court judges NEVER heard of the Tenth Amendment?

Can the various states move to protect, that is interpose or even nullify, those laws which . . .

  • impeded on the individual liberties of their citizens, AND
  • are beyond the enumerated powers of the Constitution?

Enter Bond v. United States. This recent June, 2011 decision has potentially monumental OPPORTUNITY written all over it. 

In a 9-0 decision the Court held that not only states, but also individuals have standing to challenge federal laws as violations of state sovereignty under the 10th Amendment. This decision could be a dramatic leap forward for liberty, reversing decades of decisions tracing back to the 1930's.

Back then, Franklin Delano Roosevelt threatened to pack the court with more Justices who'd rule in favor of unconstitutional New Deal programs. In 1936, in order to protect the integrity of the high court, Justice Owen Roberts, the swing vote, started ruling in favor of FDR's programs. It is called "The stitch in time that saved nine."

While these rulings may have prevented Roosevelt's judicial manipulation scheme, they eviscerated the limits of the Interstate Commerce Clause and the Necessary and Proper Clause of the Constitution. They quickly brought us to the point that a man growing food in his own garden could be regulated by the FEDERAL government, because even though he wasn't selling anything, his actions affected interstate commerce.

Talk about tortured logic! 

Since then, the logic has been tormented and stretched further, so that now the Obamacare forces are arguing that a FEDERAL mandate on individuals, requiring them to buy a private good or service (a health insurance policy), is constitutionally permitted under the interstate commerce clause.

Shouldn't the various states intercede on behalf of their citizens? Can't they see to it that their rights are protected from federal overreach? Can the states block an unconstitutional mandate?

The 4th Circuit said NO.

And the Bond decision just might be the reversal tool we've been waiting for. Bond is a green light from this Supreme Court for INDIVIDUALS, as well as states, to bring more cases under the Tenth Amendment.

In Bond, individuals are essentially being given standing. Old precedent held that Tenth Amendment arguments could only be raised by states. But here's how the Court ruled in Bond . . .

“Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.”

In other words, individuals have a right to use their state government, to stand up to federal usurpations of power.

Indeed, Virginia interposed on behalf of its citizens. The state passed the Virginia Health Freedom Act, which prohibits any act by any person, even the federal government, to compel any Virginia citizen to purchase a health insurance policy.

We believe the Commonwealth's petition to be heard by the U.S. Supreme Court on the subject of Obamacare should be approved, over the 4th appeals court's objections. Do you?

Providentially, our attorneys wrote a friend of the court brief in the Bond case. 

They are quite familiar with the controversy and the decision. They stand VERY ready to prepare an excellent brief.

Right now, we believe that . . . 

  • Virginia needs all the help they can get in order to get the Supreme Court to take up their case with the other anti-Obamacare lawsuits
  • The Commonwealth's arguments are unique and important as to the constitutionality of Obamacare

But, we ALSO believe there's something MORE at stake here . . .

. . . the future of state nullification as a tool to protect our rights.

A friend of the court brief could be very helpful to Virginia's odds, if only we had the resources to file it.

Usually, when the Downsize DC Foundation presents an amicus brief project, we have partners already LEADING the project. Thanks to your generous support, we come in a supporting role, and pitch in.

But not this time! Sure, we will still have partners. But in this case, this project will NOT happen, unless WE take a LEADING role -- which means we must contribute nearly three times the amount we normally do to the production and printing of this brief.

And to compound matters, we have to know what we're doing by Friday, close of business.

Urgently, we need at least two people willing to invest $1,000 or more. We also need at least 100 responses of varying size.

  • EVERY donor to this brief, who includes their email address in the contribution, will receive a pdf of the brief we submit to Supreme Court.
  • Every donor of $200 or more will get the same printed and bound version we send to the Supreme Court.

And your contribution to this effort by the Downsize DC Foundation is TAX-DEDUCTIBLE. 

But if response seems weak, I'll have to let our attorneys know we failed... that we can't take the lead. And in that case . . .

We won't trap your money. In order to slash your risk . . .

IF we fail to fund the brief, we will return your donation, AUTOMATICALLY, IF and ONLY IF you leave a comment in the comment box on the donor form or bottom of your check that reads, "Return if Virginia amicus brief is not filed."

So there's no reason to wait and see if we make it.

Of course, Downsize DC Foundation relies on your support, so if you choose to give unconditionally, in support of our other educational efforts, it will be appreciated. 

And if you're sending a check (the mailing address is on the online contribution form), please hit Reply to this message and let us know the amount that's on the way, so that we can add it to the count by Friday.

Will you help us fight Obamacare, and advance the cause of state nullification?

Thank you for your love of the Constitution.

Jim Babka
President
Downsize DC Foundation

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