What has already been litigated regarding obamacare is just the tax. There are other issues waiting to be raised, and one is already in the “pipeline,” which is the constitutional argument that the bill which became law, originating in the senate, is unconstitutional because it really was a revenue bill that did not originate in the house. As such, the law is unconstitutional.
But, there is another argument involving equal protection. The 14th amendment has an equal protection clause in it which the supremes have held is a component of due process. While there is no clause in the original constitution that mandates equal protection against federal legislation, the supremes have held that the 5th amendment’s due process clause incorporates the 14th amendment’s equal protection clause. In other words, equal protection is a subset of and incorporated into due process principles. Principles of equal protection apply to federal legislation
Equal protection deals with classifications in laws. For example, no legislative body can constitutionally enact some law and make it applicable only to a small group and omitting others who naturally fall within the same class. Similarly, no legislature may adopt a law and make it applicable to a broader class than those who are causing the problem to be addressed. If a legislative body adopted some drunk driving law but made it applicable to the entire driving public, that law would violate principles of equal protection because its classifications would be “overbroad.” Similarly, if that same body enacted a law to remedy some drunk driving problem, but made the law applicable only to “red-headed” drunk drivers, that law would be “underinclusive.”
Obamacare violates constitutional equal protection in two different ways. We have been told by the “system” that the need for obamacare arises because we have lots of people who are uninsured for medical care. For argument purposes only, let’s assume that the medically uninsured constitute 20% of the american population. If 20% is causing this problem, then why is the remaining 80% with medical coverage subject to it? Just this argument alone demonstrates that obamacare is “overbroad” or “overinclusive”, which violates equal protection.
But obamacare is also “underinclusive.” We hear that the prez is exempting the politically connected (big employers, etc), people who work for congress, and, heaven forbid, even congressmen themselves. While there are obvious political reasons for granting these exemptions, these do not constitute valid constitutional reasons. Exempting certain folks otherwise within the class of those subject to this law creates an “underinclusive” class for equal protection purposes.
This is one constitutional objection to obamacare. But here is some food for thought. The admission of aliens into this country is a privilege. Couldn’t congress condition their entry into this country and make them subject to obamacare? Of course, and that would be constitutional.