A Texas physician has sued the federal government over Obamacare, hoping that new constitutional challenges will bring the beleaguered healthcare law back before the U.S. Supreme Court — and this time the high court will overturn it.
"With Obamacare, the federal government was thinking that it would come in and straighten out the medical problems of the country by imposing its will upon the people," Steven Hotze, an allergist and hormone specialist in the Houston area, told Newsmax on Thursday in an exclusive interview. "They are mandating everyone to buy insurance, as if insurance provides healthcare.
"Doctors provide healthcare, not insurance companies," he said.
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Hotze and his company, Braidwood Management Inc., filed the lawsuit on May 7 in Federal District Court in Houston. The legal action names as defendants Health and Human Services Secretary Kathleen Sebelius and Treasury Secretary Jacob Lew.
Hotze's case is likely to go before the Fifth Circuit Court of Appeals in New Orleans.
"We’re going to the Fifth Circuit. That’s the most conservative circuit in the country. We ought to be able to win two out of three on the panel," he said. "Then it goes to the Supreme Court — and you only need one person on the Supreme Court to side with you," he said, referring to Chief Justice John Roberts, the key swing vote.
With its aim to provide health coverage to more than 30 million uninsured Americans, Obamacare has a core requirement, the individual mandate, that every American have health insurance.
The healthcare law, known as the Patient Protection and Affordable Care Act, also has an employer mandate that requires companies with 50 or more workers to offer affordable coverage to full-time employees.
President Barack Obama, facing intense pressure from Republicans, physicians' groups, and business organizations, last week delayed that requirement until after the 2014 congressional elections.
In both cases, however, individuals and companies without insurance would be required to pay escalating tax penalties to the Internal Revenue Service. The Obama administration has estimated that as many as 4 million people will pay the penalty rather than buy insurance.
Last year, the Supreme Court, in a 5-4 decision, upheld the individual mandate, saying the penalties constituted a tax.
In his majority opinion, Roberts explained the mandate fell within Congress' authority to "lay and collect taxes."
"The payment is collected solely by the IRS through the normal means of taxation," Roberts wrote.
The court also rejected the Obama administration's claim that Congress had the power under the Constitution's commerce clause to put the mandate in place. The power to regulate interstate commerce power, Roberts said, "does not authorize the mandate."
Active in Texas GOP politics since 1976, Hotze is the CEO of Hotze Enterprises and the chairman and founder of Conservative Republicans of Texas, the state's second-largest GOP super PAC.
"I am a free-enterprise entrepreneur," Hotze told Newsmax. "Being free enterprise, I oppose socialism in every shape or form and in government interference in the private sector."
He said that Roberts' decision last year left him thinking: "He just bailed on us. Roberts bailed out on us. He just went totally out of character. Everybody thought, 'Game's over.'"
But not Andrew Schlafly, the longtime counsel for the Association of American Physicians and Surgeons, a conservative nonprofit association founded in 1943 that seeks to "fight socialized medicine and to fight the government takeover of medicine," according to its website.
He is the son of Phyllis Schlafly, the president and founder of the conservative grass-roots public policy organization Eagle Forum. He also represents Hotze and his companies.
"I'm not afraid of taking on the federal government or state or local governments," Hotze said. "I love liberty. I believe in the Constitution and its original intent. The best way to fight the government is to take them to court. Liberals have been doing this for years."
The May filing contends that Obamacare requires Hotze and other Texans to "pay enormous penalties to the federal government, or else purchase insurance that is far more expensive and less useful than existing employer-based coverage."
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Braidwood, with 95 employees, manages naturally based health and wellness programs. The company, which also manages the Hotze Health & Wellness Center, has been operating for 24 years.
More specifically, the lawsuit challenges Obamacare on two constitutional issues not debated last year by the Supreme Court.
First, since Roberts contended last year that Obamacare constituted a tax, the healthcare law now violated the Constitution’s origination clause. It requires revenue-generating tax laws to start in the House of Representatives.
The revenue portions of Obamacare began in the Senate, the lawsuit contends.
"Nobody challenged the issue of these fees being a tax," Hotze said. "Roberts wrote that these fees were taxes, contrary to what everybody was saying. That was not even an issue, but he brings it up."
In addition, Obamacare's employer mandate violates the takings clause of the Fifth Amendment. It bars the federal government from requiring citizens to transfer their "wealth directly to others without a 'public use,'" the lawsuit says.
"Governments can't require people to do business with other people," Hotze told Newsmax. "They can take our money in taxes and give it to other people, but the government cannot pass a law and make everyone do business with, for instance, the Hotze Health & Wellness Center. They can’t do that.
"With the employer mandate, everybody is forced to buy insurance — or the employer is — from an insurance company," he added. "Whether he wants to self-insure or not, the business owner is forced to buy insurance from an insurance company."
The federal government has until the end of this month to respond to the lawsuit, Hotze said, and Schlafly will then seek a preliminary injunction to stop Obamacare in Texas. The issue could be moot because of the delay in the employer mandate, he acknowledged.
Regardless, Hotze said once the case before the appeals panel, "All we need is two of three judges on a panel to agree with us on any one of the issues, and then it goes immediately to the Supreme Court."
And here is where Roberts' decision will be most effective, he said.
"He couldn’t justify overturning Obamacare on the grounds of the commerce clause," Hotze reasoned. "He just could not do that. So he threw it out, called it a tax and said: 'This is a tax. Hey guys, don't you get it? It has to start in the House, not in the Senate.' This gives us an opportunity.
"It’s a different perspective. It’s a different point of law," he added. "The complaint is different."
The strategy for ultimately trying to get the Supreme Court to overturn Obamacare within several years after upholding it is risky but strong, Hotze admitted.
"We've already got four votes. Who needs to switch? Roberts. Who is most likely to switch? Roberts.
"Is it an odds-on favorite? No. But it’s not a dark horse," Hotze added. "It’s got some solid legal reasoning that challenges the law on two issues that it wasn’t challenged on previously, and it gives Roberts an opportunity to redeem himself."
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