If House Republicans are serious about wanting to repeal Obamacare, they should pass a Resolution stating that some, or all, portions of the Obamacare law are unconstitutional. A House Resolution doesn't require Senate approval and cannot be vetoed as would be the case with a bill eliminating Obamacare.
The Resolution should include a statement reminding the courts that the only justification Chief John Marshall could cite for ruling on the constitutionality of an Act of Congress in Marbury v. Madison was the oath the justices took to support the Constitution. Members of Congress take the same oath and thus have the same authority to express opinions of the Constitution.
The voters provide the ultimate check on government. If one Congress acts contrary to what voters think is correct, they have the option of electing new members to correct the improper action. The House of Representatives is the closest to the people because each district is approximately equal in population and all are subject to replacement every two years.
Those challenging Obamacare in court could use such a Resolution to support their claims that the law is unconstitutional.
House members should consult with those challenging Obamacare for suggestions about what the Resolution should include. The following indicate some of the substantial constitutional problems with Obamacare.
Regulating individual behavior using the Interstate Commerce Clause sounds like a violation of the 13th Amendment which abolished slavery. Congress could regulate the behavior of humans as elements of commerce when those humans were commodities to be bought and sold as slaves. Free citizens have the freedom to engage in interstate commerce or not engage in interstate commerce.
Requiring people to pay for health care by purchasing insurance violates their right to privacy in making health care decisions. The Supreme Court in Roe v. Wade and other cases has held that government cannot interfere in a person's right to make personal health care decisions. Requiring people to purchase insurance can force them to turn over health care decisions to an insurance company. Forcing them to turn money over to an insurance company instead of using it to pay for the type of health care they desire can deprive them of their right to choose health care options the insurance company doesn't support, such as plastic surgery, a sex change operation or treatment insurance companies considers "experimental".
Abortion supporters don't understand that Obamacare could eliminate abortion funding if health insurance companies considered late term or other abortions too costly or "risky". If the Interstate Commerce Clause can override the right to privacy on health insurance, then it can override the right to privacy on other health care decisions. This possibility may not be important for Obamacare opponents, but it is important to many Supreme Court justices.
Requiring people to purchase private health insurance violates the freedom of religion guarantees of the First Amendment. Some religions such as the Amish religion and Islam consider purchasing private insurance wrong. The Christian Science religion questions the use of medical doctors. Requiring members of these religions to purchase private health insurance deprives them of their right to practice their religion.
Exempting them from the requirement, creates a special benefit that amounts to a subsidy of their beliefs because they are allowed to keep more of their money for their own use, including donating it to their organization, than those who belong to other religious groups or don't belong to any religious group. Allowing members of some religions to spend money that members of other religions don't have to spend has the same impact as providing a direct government subsidy of the privileged religious groups. The First Amendment refers to government subsidy of a religion(s) as an "establishment of religion".
I have heard that the act creating Obamacare contains a provision that in effect states that if the Supreme Court finds any part of the act unconstitutional than the entire act would be invalid. Such a provision in and of itself would render the act unconstitutional because the provision would alter the powers of the Supreme Court. The Supreme Court's ruling in Marbury v. Madison invalidated an Act of Congress for a less significant attempt to alter the Court's power.
Such a provision would drastically alter the Court's Article 3 powers both expanding and restricting them. The provision would in effect grant the Court a stronger veto power than the President has because Congress could not override the Court's "veto". On the other hand the provision would dictate to the Court by removing the option of invalidating or modifying only those provisions in legislation that in the opinion of a majority of the Court violate some portion of the Constitution. The Constitution established the judicial branch to limit the ability of the government to control the lives of its citizens by limiting the circumstances under which the government could impose punishment. The judicial branch is not supposed to function as a super legislature.
The requirement that individuals purchase health insurance from private companies at rates set by those companies involves the transfer of the government's taxing authority to private companies which deprives voters of the ability to elect those who determine their taxes.
The Resolution should remind the Court that forcing people to purchase private health insurance is unnecessary to provide people with access to health care. Government can raise revenue to pay for health care with its taxation powers and then use that money to directly pay health care costs as it already does with Medicare and Medicaid.
The comparison of Obamacare to requirements for purchasing auto liability insurance is invalid. The auto liability insurance requirement is a requirement that those who engage in the dangerous activity of driving a motor vehicle prove they can compensate anyone who suffers a loss because of their mistakes while operating a motor vehicle. Many states allow motorists to fulfill this liability requirement by posting a bond rather than purchasing insurance.