Thankfully, lawsuits will be filed all across the country challenging the Constitutionality of ObamaCare.
The best grounds to challenge it are, of course, that it mandates people to buy insurance.
Sadly, any average citizen cannot sue, because they will not be deemed to have "standing" to sue - there is no general taxpayer standing except for a challenge to spending that allegedly violates the Establishment Clause (which is pretty ridiculous in my book).
Instead, lawsuits will have to be filed by states or by individuals who don't have health insurance and don't want to buy it and therefore will be harmed by the mandates.
It will be interesting to see where we go from here.
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Individuals will have standing to sue once they're penalized for not having insurance. But, of course, that's 4 years from now after we've already been thousands of dollars each in additional taxes.
No, individuals can have standing to sue if there is a reasonable likelihood that they will violate the mandate and be punished because of it.
Taxpayer standing under the Establishment Clause may be possible with Obamacare because of the religious exemption provision. Only certain, qualified religious groups will be able to get exemption, such as Amish, Christian Scientists, etc., apparently those that have a long, well-established history of conscientious objection, to the exclusion of others. That amounts to government promotion of certain religions to the exclusion of others, and is a classic violation of Establishment Clause jurisprudence.
Once standing is shown, any prolife person who can show that their unwillingness to pay for what they believe to be the murder of the unborn, is not a mere preference but an unalterable conviction, should be able to qualify as a bona fide conscientious objector.
Furthermore, if every person who is prolife joins such a suit, it is conceivable we could get half the country out of Obamacare as conscientious objectors. If that occurs, Obabacare's money stream dies, and Obamacare with it.
I am checking this out with legal colleagues and may soon have a place set up to sign on as plaintiffs. Not making any promises, and I may yet find a fatal flaw to the theory, but it is definitely worth pursuing, as it could prove to be that Achilles Heel we have all been looking for.
That's an interesting point Mr. Bell and I appreciate the post.
I think that if there was standing on Establishment Clause grounds, the analysis would require a 3-part "Lemon Test," right? So - Secular purpose, secular effect and no undue entanglement between religion and government (essentially). That might be a pretty tough argument to win.
On the other hand, one could argue that Cutter v. Wilkinson applies, but I think that case holding was the opposite - no Establishment Clause violation for allowing religious objectors...here we would argue that there IS an Establishment Clause violation because not all religious objectors are allowed to opt-out. Not sure how that analysis would go.
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