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Posts Tagged ‘David Rivkin’

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In Breaking, ObamaCare on 06/2012 at 12:00 AM

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June 4, 2012 – Up or Down on ObamaCare:  Texas Attorneys to Hear Live Debate

David Rivkin and Harvard Law Prof to Face Off June 15

Washington D.C. – As the U.S. awaits the Supreme Court decision on the Affordable Care Act (ObamaCare), the various factions pro and con continue to line up and weigh in on both whether and how the controversial law will stand.  David Rivkin, who led the 26-state case against the U.S. government in Florida’s 11th District Court (whose judge, Roger Vinson, ruled in the plaintiffs’ favor, will meet Harvard Law professor Einer Elhauge, author of amicus briefs that assert the legality of the individual mandate.  The debate is scheduled for 9:00 am, on Friday, June 15, at the Texas Bar Association’s Annual Conference in Houston.

For more information on the debate and the conference, visit For more information about David Rivkin, visit

May 7, 2012 – “The Healthcare Law and You” – Demystified A source forwards this copy of a 20-page Obama Administration PowerPoint presentation, circulated by the Department of Health and Human Services to allies. The aim: Making the unpopular law more politically saleable. Read the whole thing here.

March 26, 2012 – *This Just In* The SCOTUS will release same day audio of the ObamaCare Oral Arguments. First MP3 will be available at 1 p.m. EST today here:

March 26, 2012 – *Breaking* Supreme Court Hearings on ObamaCare March 26 – 28.  – Follow @ObamaCare411 on Twitter for the latest!

March 23, 2012 – Liberty and ObamaCare – Few legal cases in the modern era are as consequential, or as defining, as the challenges to the Patient Protection and Affordable Care Act that the Supreme Court hears beginning Monday. The powers that the Obama Administration is claiming change the structure of the American government as it has existed for 225 years. Thus has the health-care law provoked an unprecedented and unnecessary constitutional showdown that endangers individual liberty.

It is a remarkable moment. The High Court has scheduled the longest oral arguments in nearly a half-century: five and a half hours, spread over three days. Yet Democrats, the liberal legal establishment and the press corps spent most of 2010 and 2011 deriding the government of limited and enumerated powers of Article I as a quaint artifact of the 18th century. Now even President Obama and his staff seem to grasp their constitutional gamble. (Wall Street Journal) More > …

January 13, 2012 – Archive: But we have to pass the bill so that you can find out what’s in it” Watch the trailer that started it all! (YouTube) More > …

Happy Birthday ObamaCare!

January 10, 2012 – Night of the living dead  You’ve heard of Christmas in July, but Halloween in January?  In case you missed, Friday was a big day for those following the Obamacare litigation, as the first briefs arrived at the Supreme Court clerk’s office… (National Review Online) More > ….

October 5, 2011  – Think you heard the last of ObamaCare?

Ed Meese and David Rivkin to lead ObamaCare panel at Heritage Foundation

Published October 4, 2011

By Staff

Former White House lawyer and leading conservative commentator, David Rivkin, was the first to outline the constitutional challenge to ObamaCare that will soon go before the Supreme Court.

ObamaCare, officially called the Patient Protection and Affordable Care Act, marks the first time in history that the federal government has required every person to purchase a commercial product or service.

As part of its “Preserve the Constitution” series, the Heritage Foundation is presenting an expert panel, headlined by David Rivkin, to discuss the case on Nov. 3 at Lehrman Auditorium in D.C. from noon to 1 p.m.

Other speakers include: Todd Gaziano, director of the Center for Legal & Judicial Studies; Michael Carvin, partner at Jones Day and lawyer for the National Federation of Independent Business; and Andrew Grossman, a visiting fellow and moderator with the Heritage Foundation.

The panel will be hosted by Edwin Meese III, Ronald Reagan Distinguished Fellow in Public Policy and Chairman of the Center for Legal and Judicial Studies.

Among the questions that will be discussed: Is there any limit to what Congress can require? Does the Commerce Clause, which some argue has already been stretched beyond recognition, grant Congress the power to force citizens to purchase broccoli? What do the text of the Constitution and Supreme Court precedent suggest? When is the Supreme Court likely to review the case? Will the Supreme Court strike down the individual mandate, but leave the rest of ObamaCare standing?

David Rivkin is highly regarded for his award-winning legal writing in major publications such as The Wall Street Journal. Most recently, he was awarded the prestigious 2011 Burton Award for Legal Achievement for his writing in The Washington Post.

For more information on how to attend or watch online, visit:

David Rivkin’s ObamaCare articles, such as The Wall Street Journal’s “Is government health care unconstitutional?”, and other writings can be found at



ObamaCare and the Limits of Government

In ObamaCare on 11/2011 at 12:34 PM

When asked if the health law was constitutional, then-Speaker Nancy Pelosi sneered, ‘Are you serious?’ Now the Supreme Court has decided it’s a worthy question.

By David B. Rivkin Jr. & Lee A. Casey

The Supreme Court has agreed to decide whether ObamaCare is constitutional, granting certiorari in a case brought by 26 states shortly after that law was enacted in March of last year. In so doing, it will be ruling upon the very nature of our federal union.

The Constitution limits federal power by granting Congress authority in certain defined areas, such as the regulation of interstate and foreign commerce. Those powers not specifically vested in the federal government by the Constitution or, as stated in the 10th Amendment, “prohibited by it to the States, are reserved to the states respectively, or to the people.” The court will now determine whether those words still have meaning.

As we argued two years ago in these pages, the Patient Protection and Affordable Health Care Act (aka ObamaCare) is unconstitutional. First and foremost, the law requires virtually every American to have health insurance. Congress purported to impose this unprecedented “individual mandate” pursuant to its constitutional power to regulate interstate commerce, but the requirement is not limited to those who engage in any particular commercial or economic activity (or any activity at all). Rather, the mandate applies to everyone lawfully present in the United States who does not fall within one of the law’s narrow exclusions.

Under our Constitution’s system of dual sovereignty, only states have the authority to impose health and safety regulations on individuals simply because they are present. The Supreme Court has ruled many times that the Constitution denies to the federal government this type of “general police power.” Federal legislation must be grounded in one of the “enumerated” powers the Constitution grants to Congress—such as the power to regulate interstate commerce. Although the Supreme Court has interpreted that power broadly (especially since the 1940s), it has consistently held that the Commerce Clause has limits.

If Congress can require individuals to buy or otherwise obtain and maintain health insurance simply because they may be said to impact commerce by their very existence, without regard to any particular activity in which they have chosen to engage, then there is no limit on federal power. For example, if Congress can require you to buy health insurance because your lack of insurance may, at some point in the future, impose costs on the wider economy, then on the same theory it can require the purchase (or sale) of virtually any good or service, since the failure to have or use the relevant product can always be said to have some economic impact.

Both the trial judge and Court of Appeals in Florida et al. v. U.S. Department of Health and Human Services duly struck down the mandate as outside the scope of Congress’s legitimate authority. It is highly unlikely that the Supreme Court will overturn that decision. To do so would require it to junk nearly 200 years of its own jurisprudence and create a federal government of unprecedented and uncontrolled power.

There are, however, a number of other critical questions the Supreme Court will now resolve. In addition to imposing the individual mandate, ObamaCare revolutionizes the Medicaid program. For more than 40 years, Medicaid has been a cooperative federal/state program to fund medical care for the poor. The states also contribute funds and have enjoyed wide discretion in designing and implementing their own programs. Now, as a means of ensuring the universal coverage ObamaCare set out to achieve, Medicaid has been transformed into a massive new health-insurance program for many in the middle class. The states must accept new, detailed federal requirements or lose all federal Medicaid funding—leaving their neediest citizens without any safety net.

Although there is always an element of choice in accepting federal money, the Supreme Court has clearly stated that if federal funding conditions and threats become coercive, they also violate the Constitution’s fundamental federalism principles. Here, both the trial and appellate judges acknowledged this rule—based on a 1987 case called South Dakota v. Dole—but felt constrained to uphold ObamaCare’s Medicaid provisions because they found no direct and controlling Supreme Court precedent on the point. By accepting certiorari on this question, the Supreme Court has signaled its willingness to determine where that all-important line of federal versus state coercion may be, and whether ObamaCare has crossed it.

The Supreme Court will also consider the question of “severability”—whether the entire statute must be struck down because one or two of its provisions are unconstitutional. The test here is whether Congress would have still enacted the law without the unconstitutional provisions. As the trial judge correctly concluded, there is little question that without the individual mandate Congress would not have enacted ObamaCare’s other provisions, many of which make little sense without that critical requirement.

Finally, the Supreme Court has also agreed to consider one of the highly technical arguments raised in the case, whether the federal Anti-Injunction Act (AIA) prohibits a challenge to the individual mandate before the requirement actually takes effect in 2014. This issue has always been a red herring, arising because the government tried to argue that the individual mandate can be justified under Congress’s power to tax, even if it is insupportable under the power to regulate interstate commerce.


Virtually every lower court to consider ObamaCare—both those that have struck down the law as unconstitutional and those that have upheld it—has agreed that the AIA does not apply here. There is every reason to believe that the Supreme Court will do the same. The AIA was designed to protect federal tax-collection activities, generally requiring that a tax be paid before its legality can be challenged in court. The mandate, of course, is not a tax—but an affirmative regulatory requirement. It is enforced by a penalty. The only connection with the federal tax apparatus is that the penalty will be collected by the Internal Revenue Service from tax refunds otherwise due to violators, and its application here would only postpone challenges to the individual mandate to 2014.

Overall, the Supreme Court’s agreement to review ObamaCare’s constitutionality probably sounds that law’s death knell. When asked about these constitutional issues before the law was enacted, then-House Speaker Nancy Pelosi simply sneered, “Are you serious?” At this point it is safe to say, yes we are.

Messrs. Rivkin and Casey are lawyers who served in the Justice Department during the Reagan and George H.W. Bush administrations. They represented the 26 states in their challenge to ObamaCare before the trial and appellate courts.

Columnist wins Pulitzer for blasting ObamaCare

In Politics Watch on 04/2011 at 10:33 AM

The Wall Street Journal’s Joseph Rago wins some much needed praise for his common sense. (Wall Street JournalMore > …

Support for ObamaCare repeal at a standstill

In How It Affects You on 04/2011 at 8:53 AM

A majority of voters continues to favor repeal of the national health care law at 52%, but the number who strongly favor it has fallen to a new low. So has the number of voters who see the law as bad for the country… (Rasmussen) More > …

Supreme Court meets today to decide whether to expedite Virginia ObamaCare case

In Breaking, ObamaCare on 04/2011 at 8:53 AM

Virginia Attorney General Ken Cuccinelli has said he expects the Supreme Court to announce its decision either today or Monday. (Washington ExaminerMore > …

Oklahoma rejects ObamaCare money

In Politics Watch on 04/2011 at 8:51 AM

“To make it clear Oklahoma will develop its own plan, the state will not accept a $54.6 million federal grant for setting up a system where Oklahomans could shop for health insurance, Gov. Mary Fallin said Thursday.” (Fox News) More > …

Busting ObamaCare’s provisions

In Politics Watch on 04/2011 at 8:51 AM

Friday’s last minute decision on the budget slashed and killed two initiatives in ObamaCare that were bitterly opposed by businesses. (Fox News) More > …

Think of the rainforests, Obama!

In How It Affects You on 04/2011 at 8:51 AM

The 2,000+ page health care bill is able to squeeze what amounts to 429 pages of regulations into six pages of the law. If that’s the case, how many thousands of new regulations are really in this law? (U.S. News and World Report) More > …

CBS refuses to comment on ObamaCare money

In Politics Watch on 04/2011 at 8:51 AM

Maybe we need 60 Minutes’ Mike Wallace to fire up the old hidden camera to get them to talk! (Pajamas Media)  More > …

General Motors and UAW get covert ObamaCare waivers!

In Politics Watch on 04/2011 at 8:51 AM

The Obama Administration continues to find ways to funnel taxpayer funds to General Motors and the UAW. A hidden bailout was recently uncovered buried within the Obamacare bill. This latest giveaway goes by the name of “Early Retiree Reinsurance Program” or ERRP for short (National Legal And Policy Center) More > …

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