Free Markets, Free People

Is ObamaCare doomed?

Ihe 11th Circuit Court of Appeals, based in Atlanta, opened its session examining the federal healthcare law recently passed by Congress and derisively known as ObamaCare with these words from its Chief Judge Joel Dubina:

"I can’t find any case like this," Dubina said. "If we uphold this, are there any limits" on the power of the federal government?

That was followed by:

Judge Stanley Marcus chimed in: "I can’t find any case" in the past, he said, where the courts upheld "telling a private person they are compelled to purchase a product in the open market…. Is there anything that suggests Congress can do this?"

Now frankly, I think some people expected a much more receptive audience among the judges since two of the three are Clinton appointees.  Dubina is a George H.W. Bush appointee. What both Dubina and Marcus make clear is this is a case – or at least certain aspects of it are – without precedence.

And we all know how federal justices rely on precedence to guide their rulings.  I’m encouraged by those opening remarks.  The third judge on the e judge panel repeatedly asked the lawyers about the possible effect of striking down the mandate while upholding the rest of the law.

The administration, represented by U.S. Solicitor Gen. Neal Katyal argued the following about the individual mandate:

Katyal argued that healthcare was unique and unlike the purchase of other products, like vegetables in a grocery store.
"You can walk out of this courtroom and be hit by a bus," he said, and if an ill or injured person has no insurance, a hospital and the taxpayers will have to pay the costs of his emergency care.

Katyal argued that Congress could reasonably decide that because everyone will probably need medical care at some time in their lives, everyone who can afford it should pay part of the cost. And he said the courts should uphold the law under Congress’ broad power to regulate commerce in this country.

Congress could clearly require that a person who shows up at a hospital without insurance buy it on the spot, he said, and requiring the purchase in advance should not be the decisive difference.

What, of course, is not reasonable is Congress deciding how one must “pay part of the cost” or compelling them to do so under the auspices of the government.  It is the individual’s responsibility to pay such debt as in all other areas of life.  But, argues the administration:

Parts of the overall law should still survive, said government lawyer Katyal, but he warned the judges they’d make a "deep, deep mistake" if the insurance requirement were found to be unconstitutional. He said Congress had the right to regulate what uninsured Americans must buy because they shift $43 billion each year in medical costs to other taxpayers.

So, the case boils down to $43 billion a year being the reason for a gigantic intrusion in the market by the government which claims it will do a better job of holding down costs via mandating coverage.  This is the same government which suffers $60 billion a year in Medicare and Medicaid fraud (I’d call that some serious “shift[ing]” of costs to other taxpayers, wouldn’t you?

Anyway, back to the story – POLITICO is the only news organization that seemed to find some hope for the administration:

The judges’ questions were mixed enough to give encouragement to both sides in the oral arguments in the multistate lawsuit, the most significant of the legal challenges against Obama’s health care overhaul.

But then, immediately said:

But supporters of the health law cringed as the judges spent a significant amount of time questioning both sides over how much of the law they would have to void if they struck down the most controversial provision at the center of the suit: the requirement to buy insurance.

And that brings us back to our old friend, “severability”:

“The government would obviously be somewhat troubled by the questions about severability, which is something that the court only reaches if it were to invalidate one of the provisions,” said Walter Dellinger, a former acting solicitor general who wrote a brief defending the law for Democratic members of Congress.

This particular case of the many pending is probably the highest profile case as it was brought by a collection of 26 states.

Regardless of how this turns out, however, I think it is pretty clear this one is headed to SCOTUS for final disposition.  However, the rulings of the judges involved will indeed be scrutinized by the justices in Washington DC when the time comes.   If they find against the administration, I think on has to consider such a ruling, if founded on good legal ground, may create the precedent that SCOTUS needs to follow suit and throw the individual mandate (and thus the law for all intents and purposes) out the window.


Twitter: @McQandO


9 Responses to Is ObamaCare doomed?

  • Is there anything that suggests Congress can do this?
    The usual answer is the commerce clause.  It is the answer Pelosi gave.  Not that I buy it.  If such were the case then the commerce clause pretty much gives congress unlimited power as just about everything is related to commerce in one fashion or another.  If such were the case then what is the point behind the enumerated powers and the 10th Amendment?
    He said Congress had the right to regulate what uninsured Americans must buy because they shift $43 billion each year in medical costs to other taxpayers.
    Who does he mean by ‘they shift $43 billion’?  Uninsured Americans can’t levy taxes.  The government does.  ‘They’, the government, don’t have to do this.

    • That’s a good point – I assume the “shift” is from private insurance companies whose patients are charged higher rates than Medicare or Medicaid. So in essence it really doesn’t have anything to do with “taxpayers” per se (other than those with private insurance are most likely taxpayers too.).

  • “Katyal argued that Congress could reasonably decide that because everyone will probably need medical care at some time in their lives, everyone who can afford it should pay part of the cost.” Why do I need to pay for medical insurance in order to pay the cost of my medical care? I studied hard in college, got a couple of bachelors degrees, worked hard in corporate America, joined a small company, lived like a pauper for many years and have been lucky in investments so that I’ve managed to build up a nice pile. What prevents me from simply writing a check to my doctors?

    • The same thing that keeps you from writing a check, or paying cash, for food (which everyone will need at some point in their life).
      Oh wait… you probably do pay for your own food.  Maybe a commerce clause intervention is needed!  /sarc

  • Those who can afford insurance will either buy it or take the risk of hospitals (rightly) pursuing them and their assets to cover services provided. Those who can’t pay, are going to be a financial burden regardless, those loses are with us now, and will always be tied to the costs of healthcare before government intrusion even enters into the equation. Once government does intrude, they will only add layers of beaurocracy, inefficiency and waste. The $60 billion in Medicare & Medicaid fraud is a stellar example. Just Like “Climate Change” was (& is) never about the climate or the environment, Socialized Medicine was (& is) not about health or cost containment, it’s all about the money, the power and the control over the subjects. Ockham’s razor states that: The simplest explanation is most likely the correct one.

  • “In a historic 5-4 decision, the United States Supreme Court today upheld the constitutionality of the Patient Protection and Affordable Care Act.  Justice Anthony Kennedy, a moderate and long seen as the intellectual and moral compass of the Court, wrote the majority opinion.  In a departure from his usual lengthy, thorough, thoughtful opinions, today’s ruling was a mere three paragraphs of what legal scholar Jonathan Toobin called “a masterpiece of the judicial art”.  Wrote Kennedy, ‘This is a good idea.  Lots of people get sick, and we’ve got to do something about that.  I don’t want to be around sick people.  I think that’s bad.  You can get germs touching a doorknob, and you should see a doctor if that happens.  So, this is OK with me.’

    “In a concurring opinion, the rising star of the Court, Justice Sonia Sotomayor, wrote simply, ‘Who’se the wise Latina NOW, b*tches?’

    “The dissenting justices, led by radical conservative Anthony Scalia, claim that the Constitution does not give the federal government the power to mandate that citizens must purchase health care.  Civil rights leaders such as Al Sharpton and Van Jones criticized the dissenting opinion as an assault on the rights of poor women and minorities, who are expected to at last have access to good health care.

    “White House spokesperson Keith Olberman issued the following statement:

    “‘We’ve won the victory over those hatemongers in the GOP who want to kill women and children.  The president is thrilled that this cherished dream has finally overcome its last legal hurdle, and is now the law of the land forever and ever.’ Olberman also announced that health care will now be tied to voting rights.  Starting in June, colored health care access cards – brilliant, soothing blue for democrats, angry red for Republicans, yellow for independents – will be issued to all residents of the United States.  Olberman said that this is expected to save or create ten million new jobs and bring long-needed reforms to the voting system.”

    NYT front page story
    April 12, 2012

    Our fate rests in the hands of Anthony Kennedy.  Heaven help us.

  • The Republicans want it, or Mitt Romney wouldn’t be the front runner.
    Just like Illegal Immigration / Black Marker Labor could be a homerun issue at any time if a large section of the Republicans didn’t want that to still happen too.  The only thing that will happen is that HCR will be re-tempered into something more friendly to businesses.  This ruling will be used to give Republicans leverage to modify HCR, not to eliminate it.
    When companies here fail against outside companies whose workers/retirees healthcare is largely footed by their governments and we point and laugh at the domestic companies for failing, I don’t blame business for pushing for it though.  I’d still prefer it didn’t happen.

  • With rulings like the one that came out of Indiana regarding the 4th amendment nothing these judges do would surprise me.  If the judges do not feel that the law will have a negative impact on their freedom they will give it thumbs up.

  • The reason anyone can demand emergency medical attention is the Emergency Medical Treatment and Active Labor Act of 1986.  There are constitutional solutions to this problem:  fully fund the act or repeal it.  The Obama Administration’s argument is that Congress can pass an illegal law so long as it’s “necessary and proper” to fix a bad law — as if no other options were open.