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March 26, 2012

You’re Represented in the Obamacare Case

This year we’ve had more good news to report in the first quarter than in any year previous. We’ve been so busy fighting the right fights and delivering new progress, that . . .


Monday, Tuesday, and Wednesday the U.S. Supreme Court will hear two of the Obamacare cases. Downsize DC is in this fight, with an amicus brief.


The opportunity came up. We jumped aboard! You’ve supported us sufficiently that we had the flexibility to just say, “Yes.” Thank you.  
As we reported in November, we had already filed a brief in the Cuccinelli v. Sebelius case. In that case we argued for the power of state governments to interpose on behalf of their citizens — to resist an unconstitutional federal law, in this case, Obamacare. But interposition is not the issue the High Court is currently considering. Let me tell you what they are considering, and what our role is . . .

Tomorrow (Tuesday) the Court deals with the mandates that require you to buy insurance or face an IRS enforced penalty. On Wednesday the Justices will hear arguments regarding Obamacare’s increased Medicare burden on the various states.

Tuesday is our day. The case is Department of Health and Human Services v. State of Florida  (HHS v. Florida). You shouldn’t be surprised that we have made a bold argument in this case, based on getting back to the Constitution. Click here to read our brief for yourself. 

Let me ask you a question:

Have you ever felt like the Constitution was a dead letter?

I know I have. Much of the reason you’ve felt this way is because of the Supreme Court’s wanton . . .

* Exploitation of the Interstate Commerce clause
* Abuse of the Necessary and Proper clause

Both are at issue in the HHS v. Florida case! 

In fact, this is a HUGE case, and not just because it deals with Barack Obama’s signature achievement. Rather, this case tests, perhaps once and for all, whether there are ANY limits on these powers. If anything and everything can be regulated because it’s Interstate Commerce, and the regulation can be carried out in any fashion Congress deems expedient, because they first deemed it necessary or proper, then Constitutional limits mean NOTHING.

The Federal State could even force obese people to eat their vegetables. Imagine that! They could impose a “Broccoli Mandate” on top of the insurance mandate. In fact, they could do anything they want, without limit. But by saying that, I haven’t said anything original . . .


Almost everyone opposed to Obamacare has insisted that the mandate itself is unconstitutional. If the mandate is unconstitutional, then the entire law must be unconstitutional, because the mandate is so central to the whole scheme. But we, UNIQUELY, turned this argument on its head. We dared instead to demonstrate that Obamacare as a whole is unconstitutional, and therefore the mandate too must be unconstitutional. 

Our brief to the Court demonstrated a two-point thesis about the Interstate Commerce clause . . . 

1) Actual commerce has to be regulated. Not buying something can’t be commerce (let alone interstate commerce).
2) The clause permitted ONLY regulation of commerce. It’s not a license to take over an industry or set up the government in a marketplace business.

No other brief, that we’re aware of, makes this SECOND point, that government has gone into the healthcare business and that’s unconstitutional. 

Every business could wish itself to be so powerful that it could use force to control the rules of an industry so as to vanquish its competition! Socialism, here we come.

But our brief does one other unrivaled thing that I want to highlight.


Oh, and wait until you see the elegant way we did this!

1) In 1937 a frustrated Franklin Roosevelt threatened to “pack the court” with additional justices, so he could get his way. A month later, the Court began what became a flood of politicized decisions, each building into what became tyrannical precedent — cases like Wickard v. Filburn, where the Court ruled that a farmer, eating his own homegrown crop, could be regulated under the Interstate Commerce clause. The precedents are tyrannical in that these Justices have felt themselves bound to them.

Yet in less than four pages, starting on page 11, we remind the Justices of this dark, uncomfortable hour when the Court became politicized. 

* Like pouring salt in a wound, we remind them that these flawed precedents were all are based on that episode of political threat.

* Like offering salve to soothe and heal that wound, we empower them to begin making their decisions on a legal basis. We urge them to overturn cases such as Wickard and to get back on the textual track.

2) And there’s cause for hope. We remind the Court of RECENT cases, where essentially this very Court got it right — specifically, Heller and Antoine Jones. In both cases, the Court BEGAN with textual arguments and sought first principles. Like self-help gurus, more than legal guides, we pause to encourage them to continue making progress in this same direction!  

Thanks to you, we were able to instantly say, “Sign us up,” to the request that we help fund this wonderful brief. Making our fundraising goals empowers us to act quickly. This amicus brief is a great example of that. This is important because we’re aware of one, possibly two cases that may come up in the next few weeks. It’s best if we keep making forward progress financially.

But we want to do more than make budget, we want to grow! We have over 30,000 subscribers. Averaging $1, per subscriber, each month, guarantees growth.

New pledges of $1 per month can make a real difference. Obviously, not everyone can respond, so you can “sponsor” others, by giving even more each month.

Generous one-time contributions are necessary, because as we build towards our goal, we must still meet our current budget needs.

Put us in a position to keep saying “Yes!” to powerful projects like this Obamacare brief. 

Set us up for growth.

Let’s continue making 2012 our most exciting Downsize DC year yet.

Thank you for your support,

Jim Babka
Downsize DC Foundation

P.S. Most days you hear from, Inc., urging you to take action on Congress. Today’s message came from the Downsize DC Foundation, the educational partner of, Inc. Contributions to the Downsize DC Foundation are TAX-DEDUCTIBLE if you itemize, and we also accept appreciated securities. If you’re interested in making a donation of stock or other security, please hit Reply and let us know how we can reach you.

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