Update On The Liberty council Lawsuit Against Obamacare

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Liberty Counsel

Mathew Staver, Founder and Chairman

 

5/17/2013

 Liberty Counsel’s litigation against ObamaCare is one of the most important cases ever adjudicated in the federal system.  In yesterday’s hearing at the Fourth Circuit Court of Appeals, I was shocked at how attorneys from the Department of Justice flip-flopped on their arguments and twisted their facts.

Please see my important update below – Mat.

The most frequently asked questions after Liberty Counsel has appeared in an important court hearing, are “How do you think it went?” and “How do you think the judges will rule?”  

 

Yesterday, I presented the oral argument on the Liberty University v. Geithner case against ObamaCare. The three-judge panel was the same one we had in 2011 – the most liberal we could possibly have on this court, with two Obama appointees and one Clinton appointee. 

 

This time, however, while the justices asked tough questions, they were kinder and seemingly less rude than in my first appearance before them in 2011. 

 

I have no idea which way the court of appeals will rule, but here are the highlights…

 

++DOJ flip-flopping and fact twisting.

 

The attorneys from the Department of Justice have repeatedly changed positions over the better than three-year life of this lawsuit.  In the District Court hearing before Judge Moon, they argued that the Anti-Injunction Act (AIA) bars judicial review until we pay the tax and ask for a refund.  

 

In 2011 at the Court of Appeals, they reversed themselves and said the AIA does not apply. Now, in 2013, they argued again that it does apply! 

 

I think the Clinton appointee, Judge Motz, who wrote the Court of Appeals opinion that the AIA does apply, has no interest in applying it now because she was reversed by the Supreme Court. I do not think a majority of the judges will apply the AIA to bar judicial review as they did last time.

 

++The DOJ made a key admission on the breadth of our case.

 

Another key issue was “standing” – namely whether we have an injury or whether the case is premature. At the District Court and Court of Appeals, the DOJ conceded Liberty University (LU) and the private individuals we represent had standing. 

 

Now, the DOJ argues neither Liberty University nor the individuals we represent have standing! I argued that LU has standing because we challenge the entire employer mandate, and the DOJ admitted our case is the only one in the country that does so. 

 

Our corporate client, Liberty University, would have to pay a penalty or provide insurance. One judge wondered if we should wait until the “preventative mandate” requires LU to pay for abortifacients, but I argued that we have standing to challenge the entire employer mandate irrespective of the abortifacients. 

 

I do not know which way the court will rule on this issue but I think we made excellent arguments.

 

++ Obama administration attorney caught in misrepresentation.

 

The DOJ attorney argued that the individuals do not have standing because they can buy insurance coverage that does not cover abortifacients.  I disagreed on rebuttal and said the DOJ was wrong. 

 

Judge Motz said she had never experienced DOJ attorneys misrepresenting facts to the court, but I insisted the DOJ was wrong. 

 

In an unusual move, Judge Motz recalled the DOJ attorney back to the podium after my rebuttal and asked her about this. This attorney tried to avoid the question, but it became clear that what I was saying was true, at which time the judge said that what the DOJ attorney was now saying was not what she said during her argument! 

 

To put it mildly, the judge was not happy with the DOJ’s misrepresentation!

 

++The DOJ’s attempt to use the Commerce Clause was stopped cold.

 

I argued that the Employer Mandate cannot be upheld as a tax because it is punitive and places a heavy exaction on employers, is not based on incomes, and is enforced, in part, by the Department of Labor. 

 

When the DOJ tried to argue that it should be upheld by the Commerce Clause, Judge Motz stopped her and said the Supreme Court opinion on ObamaCare was not in her favor in this issue that that there is a “new regime” at the High Court on the Commerce Clause. I do not think she will accept the Commerce Clause to support the employer mandate.

 

Nonetheless, I have no idea which way the court will rule on the mandate or whether it is justified under the Constitution. 

 

++This is not the last stop for ObamaCare!

 

Because the panel is very liberal, I do not think they want to rule in our favor and will try to do what they can not to, but that effort will not be easy. They have a lot of hurdles to overcome if they intend to issue an adverse ruling to our case. 

 

Whichever way they eventually rule, this is not the last step in the litigation!  We should have a ruling in a few months and I will let you know when that happens.

 

I fully expect that this case will once again be back at the Supreme Court for the Justices to hear the powerful arguments against ObamaCare that they didn’t hear last year.

 

++Many tens of thousands of you joined me in the courtroom! 

 

I again want to profoundly thank all of you who signed the Amici Book and prayed for us yesterday and at other times. 

 

It was my great privilege to carry the Amici Book into court along with the prayers and support of well over 85,000 patriotic men and women, and more likely about 100,000 since many friends have signed the book after we printed the bound volume that we physically brought to the hearing. 

 

I assure you that the power generated through the prayers of friends like you has literally been the wind under our litigation team’s wings! 

 

Words can’t describe the overwhelming sense of support and strength I felt knowing that many tens of thousands of our friends were praying for our litigation team and me. 

 

We have never felt more privileged (and deeply humbled) to represent the interests of patriotic Americans like you, Michael!

 

++ObamaCare can’t be struck down quickly enough!

 

As I wrote to you yesterday, I was also mindful during the hearing of the profound responsibility we have to the multiplied millions of Americans who are hoping that our case, being on the forefront of private-party lawsuits against ObamaCare, will ultimately bring about the demise of this outrageous socialist power grab. 

 

Now, we await the court’s ruling and anticipate heading to the Supreme Court sometime in the coming months.   

 

The Obama administration’s maniacal political will to force healthcare “reform” on the American people – whether it is ruled constitutional at this level or not – gives us every reason to believe our adversaries intend to take this battle to the highest level.

 

For more details on our day in court, click here to listen to my special audio update: 

 

 Thank you for all of your support, both in prayer and financial gifts, throughout one of the most powerful experiences I have yet had defending liberty, life, and family!

 

God bless you, 

 

Mathew Staver, Founder and Chairman

Liberty Counsel