The National Federation of Independent Business joined 20 state attorneys general last week in the fight against Obamacare.  They released a statement on November 4th announcing the decision.  The NFIB is the self-proclaimed, “voice for small business owners in our nation’s courts,” and as such, the following statement reflects the view of many small businesses nationwide:

“Voters across the country signaled their distaste for the new healthcare law this week. They understand that it is fundamentally un-American for our government to force individuals to purchase a product from a private party against their will, and they strongly signaled that they don’t want the federal government to have this much power over their individual decisions. These are key issues at stake in the national lawsuit against the healthcare law brought by NFIB and 20 states.

Our arguments submitted today center around the fact that the Commerce Clause in the U.S. Constitution does not give Congress the authority to pass the individual mandate. The federal government simply does not have the constitutional power to force anyone to purchase a certain product from another private citizen. The commerce power permits Congress to regulate activities that substantially relate to interstate commerce. It does not allow Congress to compel inactive individuals to engage in economic activity against their will. If the courts uphold the individual mandate, it would be an unprecedented overreach of power by Congress and would ultimately result in the destruction of many of our individual liberties and freedoms.

If Congress can compel individuals to buy or sell particular goods and services merely because their decision not to do so has broader economic consequences, then congressional power is virtually limitless. This is clearly not what the American people want and must be ruled unconstitutional in order to preserve the checks and balances placed on all branches of government by our constitution.”

In addition to the NFIB, Mitch McConnell has urged his collegial Republican Senators to join him in issuing a suit against the federal government as an amicus brief.  Under the amicus brief, McConnell cites his responsibility as a United States Senator to uphold the rights inherent in the constitution.  All members of Congress take an oath to uphold the Constitution of the United States.  As a Congressional representative and Senate minority leader, McConnell feels that acquiescing to the Executive’s effort to push through comprehensive health care reform is contrary to his pledge to the nation.  Below is an excerpt from his brief: 

Members of Congress are, by virtue of their oath, under a responsibility of their own to uphold the Constitution of the United States and to ensure that the Legislative Branch stays within the bounds of the powers afforded it by the Constitution.

Amici are cognizant of their responsibility to uphold the Constitution, and as a result they raised two constitutional points of order during consideration of the health care bill.  On December 23, 2009, Senator Ensign raised a point of order that the bill would violate the Constitution because Congress’ enumerated powers in Article I, section 8 do not give it the authority to mandate that people engage in activity (i.e., buy insurance meeting federal requirements) or be fined.  The same day, Senator Hutchison raised a point of order that the bill would violate the Tenth Amendment, which states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In a letter to his fellow Republicans, McConnell extends an invitation to joinin enacting this amicus brief.  The invitation and the announcement of his intention to take legal action was released yesterday.  I should think it will not take long for his GOP colleagues to jump on board.  McConnell’s final paragraph reads as follows:

As the Supreme Court has noted, the Framers of our Constitution conceived of limitations on government “to ensure protection of our fundamental liberties.”  By preventing the “accumulation of excessive power,” the Constitution is designed to reduce the “risk of tyranny or abuse” from either state or federal government.  The PPACA would remove an important bulwark of this protection.

He is absolutely correct.  Given the GOP minority in the Senate, it has become apparent that a repeal of Obamacare through legislative action is not feasible.  However, it is possible that the court system could rule in favor of the injunction issued by 20 states and a group of GOP Senators.  The involvement of a third-party, the NFIB, lends further credibility to the GOP case of constitutionality.  It may be that the courts offer the best chance for the American people to demolish Obamacare, and the more actors involved in the prosecution, the better the case for repeal.