Ohioans Submit Brief to U.S. Supreme Court Challenging Constitutionality of Individual Mandate

The 1851 Center for Constitutional Law has submitted to the United States Supreme Court a “friend of the court” brief asserting that the Patient Protection and Affordable Care Act’s individual mandate is unconstitutional.  The brief highlights for the High Court Ohioans’ placement of the Ohio Health Care Freedom Amendment (“Issue 3”) in Ohio’s Bill of Rights, and its role in the Court’s analysis of whether the mandate withstands constitutional scrutiny.

The individual health insurance mandate, described as a “minimum essential coverage requirement” in the PPACA, attempts to require each citizen of the United States to purchase a qualifying heath insurance policy that, thus far, must cover items ranging from substance abuse and mental health coverage to maternity care.  Through requiring these coverages and others, the mandate is expected to drive up costs of health insurance premiums nationwide.

The 1851 Center’s Brief recognizes that because the mandate is not a regulation of commerce, per se, it must be “necessary and proper” for carrying into execution Congressional Commerce Clause power.  The Brief then chronicles legal principles and factual background demonstrating that, in light of efforts in Ohio and elsewhere, the mandate is not “proper,” as the Court has historically understood that term.

Specifically, the brief asserts:

  • The Constitution is animated by federalism, and because its purpose is to protect liberty, the mandate violates the “letter and spirit” of the constitution, insofar as it may displace state protection of a fundamental right.
  • Freedom from compulsion to purchase government-defined health insurance is the type of liberty states must be permitted to protect.
  • The Ninth and Fourteenth Amendments protect, from Necessary and Proper Clause power, rights specifically enumerated under state law.
  • The Necessary and Proper Clause has never before been used to displace a state constitutional provision protecting liberty.
  • The mandate forces 49 states to adhere to a policy only heretofore adopted by Massachusetts, even though that policy has been vigorously debated in each state.
  • States may protect liberty above and beyond the baseline protections afforded by the federal Constitution.

Ohio is one of three states with constitutional prohibitions against forced purchase of health care insurance.  Ten other states maintain statutory prohibitions, and 36 of the remaining 39 states have deliberately abstained from enacting individual health insurance mandates, despite debate over the policy since California first proposed such a mandate in 1939.

The Ohio Amendment, approved by 66 percent of the vote, over 2.2 million voters, added a 21st Section Ohio’s Bill of Rights “to preserve the freedom of Ohioans to choose their health care and health care coverage.”  In approving the amendments Ohioans specifically found “The freedom to not be forced to purchase government-defined private health insurance is a fundamental right.”

“One of the purposes of enacting the Health Care Freedom Amendment was not only protect Ohioans’ health care freedom from state and local government, but also to place Ohioans in the nation’s strongest position to challenge invasive elements of the Patient Protection and Affordable Care Act,” said Maurice Thompson, Executive Director of the 1851 Center for Constitutional Law.

“The 1851 Center’s Brief is a reminder, like the Ohio Health Care Freedom Amendment, of our view, and the founders’ view, that government exists to secure rights, rather than to take from some so as to provide benefits, amenities, and comfort to others,” added Thompson.  “We thought it important to share this view with the Court, along with a reminder of the impropriety of the federal government eradicating rights that the states have essentially ‘federalized’ through the Ninth and Fourteenth Amendments, as it decides the extent of our liberties.”

The Ohio Health Care Freedom Amendment was drafted, initiated, and defended by the 1851 Center for Constitutional Law.

Read the Amicus Brief here.

Ohio Elections Commission: “We’re all PACs now.” 1851 Center Challenging Constitutionality of Ohio Campaign Finance Law

On June 24, the 1851 Center filed a notice of appeal in the case of Ed Corsi, a political blogger and pamphleteer who distributed materials critical of his local elected officials.  After one of those same officials sought prosecution of Mr. Corsi, the Ohio Elections Commission took up the case.  The OEC concluded that because some friends and allies assisted Corsi in handing out pamphlets, the efforts of these individuals rendered them a “Political Action Committee,” even though they spent no funds in supporting or opposing candidates, and coordinated with no campaigns.  Any Ohioans designated as a PAC must register with the state prior to engaging in political speech, and must comply with onerous reporting requirements.

The 1851 Center argues the law under which Corsi is being charged is not only vague in language, but violates his right to speak anonymously, is an unconstitutional prior restraint on core political speech, and violates freedom of association.  Meanwhile, Ohio’s Constitution contains broad protections for speech and press that afford new media the same protections as the mainstream press.

“The right to criticize one’s government cannot be conditioned on that government’s prior permission,” according to 1851 Center Director Maurice Thompson.  “Under the Ohio Elections Commission’s decision, every tea party group, every protest, and every signature-gathering or pamphleteering effort in the state is a Political Action Committee that must register with the state or face $1,000 fines, and even apolitical associations run this risk, if associating with those engaged in political speech.”  Said Thompson, “This ruling isn’t an aberration – – it represents the outward limit of a corrupt philosophy that prohibits the average Ohioan from fully engaging in political debates.”

Update: Estate Tax Repeal Signed into Law, Expires January 1, 2013

The legislature has passed a state budget that includes the repeal of Ohio’s Estate Tax.  Special thanks to the team at http://www.endohioestatetax.com/ for their leadership in accomplishing a feat that no liberty group before them had accomplished:  the elimination of a statewide tax.  In drafting the initiative and representing the effort, the 1851 Center was simply the professional scaffolding around this inspiring all-volunteer effort. [Read more…]

High Court Reviewing Smoking Ban Constitutionality

On April 6, 2011, The Supreme Court of Ohio agreed to become the first state supreme court in the nation to determine whether a statewide smoking ban violates bar owners’ property rights. The Court also agreed to review whether the Ohio Department of Health has consistently exceeded its authority in fining business owners under the ban. [Read more…]

New Publication on Public Employee Union Payroll Deductions for Campaign Contributions

On February 22, the 1851 Center released The Path Remains Clear for Ohio’s New Legislators to Separate Government Employment from Public Employee Union Politics, a Constitutional Viewpoint on automated payroll deductions for political contributions, a service provided to public employee union members and paid for by taxpayers.

From the Overview:

As the debate on the role of government employee unions in Ohio intensifies, citizens and lawmakers shouldn’t lose sight of the prominent role that these organizations play in Ohio politics and policymaking. Nor should they overlook an immediate solution to leveling the playing field in the state: simply stop subsidizing government workers’ political contributions to their employers.

  • Ohio’s top donors to Ohio legislative and statewide candidate campaigns are public employee unions.
  • The taxpayers of Ohio facilitate political donations to public employee unions by providing, at no cost to those unions, automated payroll deduction benefits.
  • Ending automated payroll deductions for union politics causes sharp decline in contributions to public employee unions, and puts these unions on equal footing with the private sector.
  • Ohio once banned automated political payroll deductions from all public employee paychecks, but through historical accident, that ban was stricken and never re-enacted.
  • Due to recent U.S. Supreme Court precedent, banning these political contributions is unquestionably constitutional.
  • 46 percent of Ohio’s government employees are unionized.
  • Public employee unions contribute to causes and candidates that increase the size and scope of government.
  • It is estimated that Ohio residents could pay 20.73% less in state income taxes if they weren’t paying for inflated government employee union wages.

Read the full publication

Protecting Health Freedom

The 1851 Center for Constitutional Law drafted petition language aimed a fighting pending national health care regulations. Read the amendment news release and watch the news conference here. Download the petition here.  Visit the Ohio Liberty Council for more information on this effort here.

The proposed federal health care bills are problematic from a utilitarian, moral, and constitutional perspective. On the following videos, Maurice Thompson of the 1851 Center explains how Ohio can fight unconstitutional health care mandates using the Ohio constitution.

Read the Health Care Freedom Amendment FAQs here.