If the Supreme Court overturns Wickard v. Filburn and returns the Federal government to its pre-1942 size, we will not pursue the OCA lawsuit any further. We will also celebrate for several months because this would be a miracle ruling, and a true restoration to our original system of government. Unfortunately the parties that reached the Supreme Court earlier this year did not argue that Wickard should be overturned. Their arguments against Obamacare were much more specific. We hope the Court agrees with them and strikes down all of Obamacare. However, it is unlikely that the Court’s ruling will be that comprehensive.
Liberty Legal Foundation filed an amicus (friend of the court) brief with the Supreme Court showing all of the negative affects Wickard has had on our nation. Unfortunately one amicus brief may not be enough to get the attention of the Court.
I predict that the individual mandate will be struck down as beyond Congressional authority, but the Court will not go as far as to strike down Wickard. Because the Florida attorneys did not argue that Wickard should be overturned, the Court is unlikely to go that far. This will leave us with yet another compromise rule regarding Congressional authority. The new rule will be impossible to understand and impossible to enforce. The net result will be Congress doing whatever it likes, with no limits, because no court will know exactly how much authority Congress has.
When the Supreme Court gives us this newly-flawed rule on Congressional authority Liberty Legal Foundation will file a motion with the Texas Federal court to resume our OCA lawsuit. We will continue to argue that Congressional authority should be returned to its pre-Wickard scope and that the Federal government should be returned to its pre-“New Deal” size.
There is another possibility that the Supreme Court could strike down the individual mandate, without overturning Wickard, and rule that the rest of Obamacare cannot be left standing without the individual mandate. If this happens we will, again, celebrate. However, this would leave us with a flawed rule on Congressional authority and no Obamacare law to use as a means to attack Wickard in court. If this happens Liberty Legal Foundation will find another example of Congressional abuse of power we can use to re-establish proper Constitutional limits on Congressional authority with a Supreme Court ruling. Unfortunately Congressional abuses of power are common. This is why we must win this fight.
If you wake up on Independence Day to a new Federal government, limited by our Constitution as it was before the New Deal, then we will be celebrating our re-established Constitutional Republic with you. If, however, you wake up on Independence Day still wondering how America got its current unconstitutional Federal government, and wondering how we’re going to fix it, then Liberty Legal Foundation will still be here working to fix it.