Delegate Bob Marshall Files Amicus Brief Urging Supreme Court Overturn Fourth Circuit Obamacare Decision
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[November 3, 2011, Manassas] Del. Bob Marshall (R- Prince William/Loudoun) filed an Amicus Brief today with the U.S. Supreme Court urging its review of the Obamacare decision of the federal Appeals Court in Richmond.
The Fourth Circuit panel had ruled on September 8, 2011, that Virginia had no standing to challenge the Constitutionality of the Obamacare individual insurance mandate. That decision came on the same day as another ruling by that Court, a position adopted by no other federal court that had considered the matter, that the individual mandate constituted a tax, and could not therefore be reviewed until the law actually took effect.
In that other case brought by Liberty University, the Fourth Circuit said what Congress had denied in the Obamacare law (Patient Protection and Affordable Care Act) -- that the individual mandate requiring that a private party pay for insurance coverage they may not want or need, or even could find immoral, was in reality a tax, even though it was paid to a private insurance company and not the government.
Marshall's brief pointed out that the Court's reasoning reached an absurd result: "As a result of these twin rulings, the party which the Court of Appeals believed had standing was barred by statute from obtaining a ruling on the merits, while the party not barred by statute did not have standing. If the Court of Appeals were correct, the result would be a Catch-22 — no one could challenge the constitutionality of PPACA’s individual mandate in a federal court." (pp. 7-8).
Marshall authored the Virginia Health Care Freedom Act, which was relied upon by Attorney General Cuccinelli to prosecute the legal challenge.
Marshall argued to the Supreme Court that the Appeals Court decision was inconsistent with the U.S. Supreme Court’s decision earlier this year in Bond v. United States, which held that “Federalism ... protects the liberty of all persons within a State by ensuring that law enacted in excess of delegated governmental powers cannot direct or control their actions “
The Marshall amicus brief made other important points.
Founding Father, and Federalist Paper co-author, Alexander Hamilton, a delegate to both the Constitutional Convention and the ratifying convention in New York, affirmed that states have the constitutional right to file suits in federal court to protect citizens. Madison understood the role of the General Assembly -- which the Fourth Circuit denigrated in its decision -- in writing: “... state legislatures will always be: ‘not only vigilant but suspicious and jealous guardians of the rights of the citizens, against encroachments from the Federal government ...” [A. Hamilton, Federalist No. 28]
Moreover, Fourth Circuit judges failed in their role as arbiters between the states and the federal government as described by Founding Father James Madison during the ratification debates of the Constitution. “n the case Congress shall misconstrue ... part of the Constitution, and exercise powers not warranted by its true meaning ... the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts....” [J. Madison, Federalist No. 44]
The Fourth Circuit opined that the Commonwealth “lacks the ‘personal stake’ in this case essential to ‘assure that concrete adverseness which sharpens the presentation of issues.’” Delegate Marshall argued that: "This is unsupported speculation belied by the arguments made by the Attorney General of Virginia and the vigor with which he has pressed this case in the courts." (p. 9.)
Marshall's brief also pointed to the political nature of the decision by three appellate judges, all appointed by Democrat Presidents, who had quoted from a case in which standing was denied “to prevent state ‘bureaucrats’ and ‘publicity seekers’ from ‘wresting control of litigation from the people directly affected.'”
Marshall said, “Accusations of this sort against Virginia elected officials, whether express or implied, could result in disciplinary action were they used in floor debate in the House of Delegates against another member. Intemperate language impliedly directed at Virginia’s elected legislators may be expected in heated political debate, but is wholly inappropriate for federal judges.”
Marshall's amicus brief was joined in by former Delegate and candidate for the Virginia Senate, Dick Black, as well as a number of public policy organizations.
The full Amicus Brief may be found at http://delegatebob.com/wp-content/uploads/2011/11/Virginia-v.-Sebelius-Marshall-amicus-brief.pdf
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