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Photo Credit: kenudigit Creative Commons

By tomorrow, the U.S. Supreme Court will have spent six hours hearing oral argument over a three-day period about the constitutionality of the Patient Protection and Affordable Care Act, better known as ObamaCare. After the argument on Tuesday, the Court will address the question: “Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision.” That sterile statement of the issue on which the Court granted certiorari vastly understates the significance of this case. The truth is that this case will determine whether there are any meaningful limitations on Congress’ power to mandate an individual’s life choices.

When Congress’ power under Article I, Section 8 — power to “regulate commerce … among the several states” (Clause 3) — has been paired with Congress’ power “to make all laws which shall be necessary and proper for carrying into executing the foregoing powers” (Clause 18), the result has been the virtually unlimited power of Congress to dominate the everyday behavior of the American people, in direct conflict with the plain language of the Tenth Amendment reserving such powers to the state and to the people.

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In large part, it is the combination of the “commerce” and “necessary and proper” clauses that have led many to conclude that the Constitution is a dead letter to our generation — that the battle was lost before most of us were born. How profoundly sad. Indeed, the Sunday morning pundits believe that the ObamaCare challenge is already lost. Well, they may hope that it is lost, but I have a different view.

I have been in the trenches against ObamaCare since before it was enacted. In late 2009 I wrote an article against the individual mandate for the Richmond Times Dispatch. In January 2010, I authored the Virginia Healthcare Freedom Act that our attorney general, Ken Cuccinelli, used to file suit against the Obama administration. On April 4, 2011, I filed an amicus brief in the Fourth Circuit to support that challenge to ObamaCare. I explained this brief to the House of Delegates on April 4, 2011. My wife and I attended oral argument, and we saw the case presented to three Democrat-appointed judges on the Fourth Circuit panel. In their opinion, those judges impugned the integrity of those of us who were working against this law, and then decided that since the Commonwealth of Virginia was a mere state, it did not have standing to challenge the law. Then I filed an amicus brief in the Supreme Court urging the Court to grant certiorari on November 3, 2011 — a petition that is still pending.

When the Supreme Court decided to hear the challenge from the Eleventh Circuit, on February 13, 2012, I filed yet another brief on the merits in that case. In each of these briefs, where I was joined by other concerned individuals and organizations, we have urged the Court to re-examine the text of the Commerce Clause — and to ignore its flawed decisions in this area.

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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by

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