I’m not a lawyer nor do I pretend to be, although I do enjoy discussing legal matters very much.
Anyway, as you might imagine, Judge Vinson’s ruling has created a bit of a stir with the left, of course, accusing him of “extreme activism” and the right saying “right on”. In reality, all it means is the future of the law depends on what Justice Kennedy is feeling like when the SCOTUS hears it because they are going to have to review it now.
So, back to me not being a lawyer, I’d like to turn to someone who is and who has followed this closely and, in fact, wrote amicus briefs for two of the governors involved in the lawsuits – Hans Bader who is a senior attorney with the Competitive Enterprise Institute. Here’s his opinion of the ruling:
A judge in Florida just declared the health care law known as “Obamacare” unconstitutional, ruling it void in its entirety. Judge Vinson rightly declared the health care law’s individual mandate unconstitutional, since the inactivity of not buying health insurance is not an “economic activity” that Congress has the power to regulate under the Interstate Commerce Clause. (Under the Supreme Court’s decision in United States v. Morrison (2000), which I helped litigate, only “economic activity” can be regulated under the Commerce Clause, with the possible exception of those non-economic activities that harm instrumentalities of interstate commerce or cross state lines.)
Judge Vinson also rightly declared the law as a whole unconstitutional. The health care law lacks a severability clause. So if a major provision like the individual mandate is unconstitutional — as it indeed was — then the whole law must be struck down.
The absence of a severability clause meant that, at a minimum, the burden of proof shifted to the government to prove (among other things) that the law would have passed even without the individual-mandate provision that the court has just ruled unconstitutional. The government could not, and did not, meet that burden of proof, given the incredibly narrow margin by which the health care law passed in the House, and the fact that it circumvented a filibuster with no votes to spare in the Senate.
As I noted earlier in The Washington Examiner, “To justify preserving the rest of the law, the judge” in the earlier Virginia case “cited a 2010 Supreme Court ruling [Free Enterprise Fund v. PCAOB] that invalidated part of a law — but kept the rest of it in force. But that case involved a law passed almost unanimously by Congress, which would have passed it even without the challenged provision. Obamacare is totally different. It was barely passed by a divided Congress, but only as a package. Supporters admitted that the unconstitutional part of it — the insurance mandate — was the law’s heart. Obamacare’s legion of special-interest giveaways that are ‘extraneous to health care’ does not alter that.” In short, Obamacare’s individual mandate is not “volitionally severable,” as case law requires.
The individual mandate provision also was not “functionally” severable from the rest of the law, since the very Congress that passed deemed it absolutely “essential” to the Act’s overarching goals (as Judge Vinson in Florida correctly noted).
(In our amicus brief in the Florida case for Governors Tim Pawlenty and Donald L. Carcieri, we also argue that Obamacare violates the Tenth Amendment by exceeding Congress’s power under the Spending Clause, a so-called Pennhurst argument.)
In footnote 27, the judge cited with approval the thoughtful brief of legal scholar Ken Klukowski explaining why Obamacare should be struck down in its entirety under settled principles of severability.
So there it is with all the links. I’m hoping that’s how the SCOTUS sees it as well. So for the lawyers among us – have at it guys.
[ad] Empty ad slot (#1)!
Yesterday, after the SOTU had been delivered and all attention was on discussing it, the Office of Consumer Information and Insurance Oversight (OCIIO), part of the US Health and Human Services Department, quietly announced that it had granted 511 new waivers to Obamacare (for a total of 733 as of this post) since its last report in November. Hot Air had been monitoring the site and found it rather interesting that a site that had been efficiently updated through November suddenly wasn’t updated until after SOTU. A bit like the CBO’s announced revision of this year’s deficit.
Anyway, the list contains businesses, local unions and other entities. Additionally, four states have applied for waivers (MA, NJ, OH and TN).
The reason for all these waivers (which, btw, only delay their integration into ObamaCare, it doesn’t exempt them)?
This ever-expanding list of waivers is the direct result of ObamaCare raising the annual benefit caps on certain health plans. Obviously, a plan with higher annual limits is potentially more costly than one without them. The money to cover the difference in premiums has to come from somewhere. Without the waivers, it will come from the employer who are forced by law to upgrade to the more expensive plan.
2.2 million effected with the waivers granted to this point. Part of that “less costly” promise Obama made when he was peddling this monstrosity.
Speaking of falsehoods, Jen Rubin at the Washington Post reports on an interesting exchange between Congressional reps and Medicare’s chief actuary (Robert Foster). In this particular exchange they discuss the “double-counting” that was used to justify ObamaCare (and which the Democrats and their pet economists like to claim is nonsense:
REP. JOHN CAMPBELL(R- Calif.): "Is it legitimate to say… that you can add a dozen years to the solvency of Medicare or that you can reduce the deficit, but it is not correct to say both simultaneously?"
FOSTER: "Both will happen as a result of the same one set of savings, under Medicare. But it takes two sets of money to make it happen. It happens directly for the budget deficit, from the Medicare savings, and then when we need the money to extend the Hospital Insurance Trust Fund, we have a promissory note – it’s an IOU, not a worthless IOU, but it is an IOU – and Treasury has to pay that money back. But they have to get it from somewhere. That’s the missing link."
These are the sorts of budgetary tricks that Congress is famous for using (and it isn’t just the Democrats, although it was certainly the Democrats in this case)and one of the reasons we see government in the horrific financial shape it is in.
So, where is the money – promised in the IOUs for the money designated for Medicare but spent elsewhere – going to come from? Of course the Democrat’s answer is from higher taxes. But don’t worry – the result will be "lower health care costs" or so says the plan. Amazing.
Then Foster was asked about this:
Two of the central promises of President Barack Obama’s health care overhaul law are unlikely to be fulfilled, Medicare’s independent economic expert told Congress on Wednesday.
The landmark legislation probably won’t hold costs down, and it won’t let everybody keep their current health insurance if they like it, Chief Actuary Richard Foster told the House Budget Committee. His office is responsible for independent long-range cost estimates. . . .
Foster was asked by Rep. Tom McClintock, R-Calif., for a simple true or false response on two of the main assertions made by supporters of the law: that it will bring down unsustainable medical costs and will let people keep their current health insurance if they like it.
On the costs issue, "I would say false, more so than true," Foster responded.
Finally, this exchange:
McCLINTOCK: "The other promise… was the promise that if you like your plan, you can keep it. True or false?"
FOSTER: "Not true in all cases."
Really? Other than true believers, who else thought “oh heck yeah, we can add more people to the rolls, require insurance companies to take everyone regardless of their health and remove all payment caps and have a cheaper product too boot? The same people who swallowed “if you like your plan you can keep it”, I guess.
For those folks: welcome to reality. If you think the new revised budget deficit of 1.5 trillion this year is alarming, wait till ObamaCare kicks in fully. Oh, and repeat after me “this is not the government taking over health care”.
[ad] Empty ad slot (#1)!
The Republican controlled House kept its promise and repealed ObamaCare with a large majority. As I’ve said in the past, symbolic or not, these types of votes must be made. Republicans must raise the issue in the House, vote on it and make the Democratic controlled Senate kill it or, if it happens to somehow slip through the Senate, make Obama veto it. Again, it’s about the record – and for once in his life, Obama is actually going to have to run on one in 2012.
That said, it was incredible to listen to Democrats attempt to justify Obamacare yesterday. They are our lawmakers. Yet it became apparent yesterday, at least listening to a few of them, that they simply don’t know their business or what they’re talking about.
Take Shelia Jackson Lee for instance:
"Frankly, I would just say to you, this is about saving lives. Jobs are very important; we created jobs," Jackson Lee said. "But even the title of their legislation, H.R. 2, ‘job-killing’ — this is killing Americans if we take this away, if we repeal this bill."
So, Republicans are "killing Americans" with repeal. There’s that civil discourse right when it is necessary, no?
But that wasn’t the worst of her mutterings:
Rep. Sheila Jackson Lee, a Democrat from Texas, said on Tuesday afternoon that repealing the national health care law would violate the Constitution.
Arguing that the Commerce Clause provides the constitutional basis for ObamaCare, Jackson Lee said repealing the law by passing Republicans’ H.R. 2 violates both the Fifth Amendment’s right to due process and the Fourteenth Amendment’s equal protection clause.
Say what? Frankly, anyone with a elementary school civics class under their belt could see thorough this convoluted and daft bit of nonsense. The ignorance in that “argument” (not to mention the logic) is appalling. But it seemed to be a sort of desperation talking point that some Democrats adopted as their “defense” of the law. John Lewis also invoked the 14th Amendment as a reason for keeping ObamaCare – oh, and the Declaration of Independence thinking he was quoting the preamble to the Constitution:
“Well, when you start off with the Preamble of the Constitution, you talk about the pursuit of happiness," said Lewis. "You go to the 14th Amendment–it’s equal protection under the law and we have not repealed the 14th Amendment. People have a right to have health care. It’s not a privilege but a right."
Of course it’s not the Preamble to the Constitution that talks about the “pursuit of happiness” at all, it’s the Declaration of Independence. You’d think a lawmaker would know that. But then you’d also think he’d know what constitutes a “right” and what doesn’t wouldn’t you? Obviously though, that’s hoping for too much.
Some Democrats insisted on civil discourse to broadcast their unhappiness with the Republican effort to repeal ObamaCare. Like Rep. Steve Cohen:
“They say it’s a government takeover of health care, a big lie just like Goebbels," Cohen said. "You say it enough, you repeat the lie, you repeat the lie, and eventually, people believe it. Like blood libel. That’s the same kind of thing. “
“The Germans said enough about the Jews and people believed it–believed it and you have the Holocaust. We heard on this floor, government takeover of health care. Politifact said the biggest lie of 2010 was a government takeover of health care because there is no government takeover,"
Yup … Democrats can jam something through that the American people were clear they didn’t want using every Parliamentary trick in the book, but when the GOP steps up to repeal it, they’re Nazis. Nice Steve – really nice. You sound like Alan Grayson.
Speaking of Alan Grayson, he’s still puking up nonsense. Apparently he didn’t get the memo that the “blame Sarah Palin for Tucson” narrative is a big FAIL. You remember Mr. Civil Discourse, don’t you? The guy who said “"If you get sick, America, the Republican health care plan is this: Die quickly?" Yeah, him:
"As I observed on MSNBC last week, there has been a stream of violence and threats of violence by the right wing against Democrats," Grayson wrote in the email. "Gabby warned against it, and then became a terrible victim of it. Palin has instigated it, and then tried to pretend that it doesn’t exist,” he wrote."
And as most of us observed while you were in Congress, to include the voters in your former district, you’re a loon, Mr. Grayson. However he’s a loon who somehow found his way to Congress for a while. Says something about our low standards, doesn’t it? And it also points to how seriously Democrats are about embracing “civil discourse”, wouldn’t you say?
[ad] Empty ad slot (#1)!
It appears that the main question, or at least one of the main questions, about the health care mandate in Obamacare that requires Americans buy health insurance may revolve around the "necessary and proper" clause and not just the badly abused Commerce clause.
From the New York Times:
The necessary-and-proper clause sits at the end of Article I, Section 8, after 17 paragraphs that enumerate the powers delegated to Congress, ranging from the establishment of post offices to the declaration of war. It conveys authority “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”
The reason that is a key is because the latest decision that went against the administration involved Judge Henry Hudson rejecting the “necessary and proper” defense. As the Times mentions, the court has struggled over the years to define the necessary and proper clause. Here’s the case as it stands now:
The [DoJ] , which represents the Obama administration, argues that the insurance requirement is constitutional under the commerce clause and allowed under the necessary-and-proper clause as a rational means to an appropriate end. It points to a series of Supreme Court precedents that interpret those provisions as allowing the regulation of “activities that substantially affect interstate commerce.”
The act of not obtaining health insurance, the federal government’s lawyers contend, is effectively a decision to pay later rather than up front in a market that consumers cannot avoid. Such decisions, they say, have a substantial impact on the market because many of the uninsured cannot afford their care and shift costs to governments, hospitals and the privately insured.
Furthermore, the lawyers argue, the insurance mandate is essential — both necessary and proper — to making other changes work, particularly prohibitions on discrimination by insurers against those with pre-existing medical conditions [emphasis mine].
Obviously, at least in my estimation, the argument fails for a number of reasons. Obviously, I’m not a lawyer, so I’m simply giving my arguments based on the stated particulars of the case as outlined above.
First the wording “rational means to an appropriate end.” I’d argue the end is not at all appropriate – i.e government dictating that someone must have insurance certainly smacks of what government had denied and called a “myth”. That is government is now in charge of health care for everyone. Unless you accept that premise, the argument is invalid. Acceptance of that premise and the “appropriate end” argument means government can pretty well do whatever it wants and the Constitution as a guiding document has been mostly rendered moot.
The argument goes on to say that not having health insurance is “effectively a decision to pay later rather than up front in a market that consumers cannot avoid.” Obviously, in the strictest sense that’s not true. “Consumers” can avoid that market. And do. That’s not to say they will – but the fact is no one is forced to use it and no one has to use it if they so choose. Arguing that consumers must be required to buy insurance because they will use the market seems a claim that is unfounded in fact. People of means, for instance, may decide they’d rather pay as they use the service, vs. obtaining insurance. That should be their decision, not governments if we’re really a free country. And while they may be a small set of those who will seek health care, they still give lie to the necessity of insurance to cover the costs of their care – the “pay later than up front” mentioned in the emphasized argument.
Finally there’s the argument which says the mandate is necessary “to making other changes work, particularly prohibitions on discrimination by insurers against those with pre-existing medical conditions
No. It’s not. Consider the fact that much of the problem we face with health insurance today revolves around the structure of the market as one in which employers provide the coverage. Then there’s a problem of government’s making. The restrictions on selling health insurance across state lines. This has essentially segmented the huge pool we see in other insurance markets to 50 segmented markets. It has made the ability to buy an insurance product at the best price and outside the traditional employer furnished insurance all but impossible. Removal of that restriction would go a long way in solving some of the toughest problems – pre-existing conditions and portability. While government may feel compelled to place “prohibitions on discrimination by insurers against those with pre-existing medical conditions”, there would probably be less of a need to discriminate in larger pools of insured. Anyway, that solution is found nowhere in the existing law.
There is no “right” to health care. As far as my opinion goes, I find nothing in the Constitution that gives government the power or authority to require I pre-pay for health care. And that is precisely what it is claiming – that health care is something I will use and since I will use it, I must pre-pay for that use. No matter what my health, age, etc. It argues that it can remove my choice in the matter by law.
One more time – freedom is choice. When it is removed, so is freedom. This is just another step toward a more oppressive government presence in our lives. One can only hope that the SCOTUS will rule against the administration on this travesty of a law and cripple it to the point that repeal is the only valid choice for Congress. Otherwise, the door will be opened to all sorts of mandates we haven’t even imagined. And with each mandate more choice is eliminated.
If anyone can argue that was the vision of the founders of the country or the writers of the Constitution, and do so with a straight face, I’ll be glad to nominate them for an Oscar next year.
[ad] Empty ad slot (#1)!
I’ve been waiting on this one and today a US District Judge in Virginia issued his ruling about ObamaCare:
A federal judge in Virginia has declared the Obama administration’s health care reform law unconstitutional.
U.S. District Judge Henry Hudson is the first judge to rule against the law, which has been upheld by two others in Virginia and Michigan.
Virginia Attorney General Ken Cuccinelli filed the lawsuit challenging the law’s requirement that citizens buy health insurance or pay a penalty starting in 2014.
He argues the federal government doesn’t have the constitutional authority to impose the requirement.
I’m not sure the AP description is entirely accurate. I believe he ruled only the individual mandate was unconstitutional. However, I don’t believe he ruled the entire law unconstitutional.
U.S. District Judge Henry Hudson in Richmond, Virginia, said today that the requirement in President Barack Obama’s health-care legislation goes beyond Congress’s powers to regulate interstate commerce. While severing the coverage mandate, which was to become effective in 2014, Hudson didn’t address other provisions such as expanding Medicaid.
Hudson, appointed by President George W. Bush found the minimum essential coverage provision of the act “exceeds the constitutional boundaries of congressional power.”
Regardless, if the ruling stands, it cripples ObamaCare. The mandate is one of the principle ways that the administration and Democrats “justified” the cost of the law. And by the way:
Constitutional scholars said unless Congress changes the law, its fate on appeal will probably hinge on the views of the U.S. Supreme Court’s more conservative members.
Hello lame duck Congress? That’s not going to happen in the 111th and it certainly won’t happen 112th.
Oh, this is going to be fun to watch. More to come as it continues breaking.
UPDATE: Pertaining to the “severability” argument put forward in the comment section, Judge Hudson said specifically when talking about the individual mandate:
"The Court will sever only Section 1501 [the individual mandate] and directly-dependent provisions which make specific reference to 1501.
[ad] Empty ad slot (#1)!
The short answer, of course, is it is a monstrous
bill law those effected by it are just beginning to understand. And maybe it’s just me but when you begin to grant waivers to the law, a) you’re playing special interest politics (it applies to the little people but not the politically well connected) and b) the law is obviously flawed.
One of the more recognizable business names included on the newly-expanded list of waivers issued by the feds is that of Waffle House, which received a waiver on November 23 for health coverage that covers 3,947 enrollees.
Another familiar name was that of Universal Orlando, which runs a variety of very popular resorts in the Orlando, Florida area. Universal was given a waiver for plans that cover 668 workers. These waivers deal with limited health benefit plans, sometimes referred to as "mini-med" policies, which companies as large as McDonald’s use for some its employees. The plan have limits on how much can be paid out in coverage, limits which would be phased out under the new health reform law.
The feds though have granted waivers from that law, amid concern that certain groups would drop their health insurance programs entirely. Those waivers are good for one year, and can be considered for renewal.
That final line is important because, of course, it gives the government leverage to push for changes in coverage within the companies it has to this point exempted. If not, it simply lets the exemption expire. But that doesn’t change the fact that the only the politically connected to this point have been exempted. Instead of admitting the problem with the law and issuing a blanket exemption to all businesses that are effected like the favored few, the administration prefers to do “favors” for those that apply.
Among those so favored to this point are – surprise – a number of unions:
Several weeks ago, critics singled out a number of unions which had received government approval for exemptions from certain provisions of the law dealing with annual medical spending limit requirements.
And there are more unions who have received waivers in this latest batch, like the Bricklayers Local 1 of MD, VA and DC, the United Food and Commercial Workers Union in Mount Laurel, New Jersey, the Indiana Teamsters Health Benefits Fund, Service Employees International Union Local 1 Cleveland Welfare Fund, and more are listed.
This, of course, is a result of poorly written legislation that wasn’t debated, vetted or carefully considered. It is a mish-mash of liberal wishes and desires bundled in a huge and unread document and shoved through the legislative process in a most underhanded way. The fallout has been gradual but building as more and more companies get into the nitty-gritty of what this will mean to them. And the waiver apps are flying. Since mid-November, the waivers granted has doubled from 111 to 222. And there’s no reason to believe that’s going to slow down as the implementation dates near.
It is also another in a long line of reasons the business climate in this country remains unsettled. The fact that a company gets a waiver doesn’t mean that within a year the administration will decide it must comply. I’m sure these businesses have already calculated the cost to them of such a demand. Would you do any major hiring or expansion with that hanging over your head?
Yeah, neither would I.
[ad] Empty ad slot (#1)!
You remember the organization that became one of the biggest shills for the impending health care legislation now known as "Obamacare"? Reason brings us the story that AARP is now notifying its employees that thanks to their support for this monstrosity they have the privilege of paying 8 to 13% higher health care premiums next year:
In an e-mail to employees, AARP says health care premiums will increase by 8 percent to 13 percent next year because of rapidly rising medical costs.
And AARP adds that it’s changing copayments and deductibles to avoid a 40 percent tax on high-cost health plans that takes effect in 2018 under the law. Aerospace giant Boeing also has cited the tax in asking its workers to pay more. Shifting costs to employees lowers the value of a health care plan and acts like an escape hatch from the tax.
AARP said that its support of the law was based in the fact that “health care costs are growing too fast for everyone.” Now AARP’s employees will have the opportunity to experience that first hand – after the law the group supported to prevent such cost growth is in effect.
[ad] Empty ad slot (#1)!
I don’t want this one to slip by, because it is significant. It is yet another study that shows the numbers attributed to the cost of ObamaCare were so much nonsense. The interesting thing is it comes from an organization friendly to ObamaCare (via HotAir):
Families USA commissioned The Lewin Group to use its economic models to estimate how many individuals would benefit from the new premium tax credits in 2014 and the value of the dollars going to help pay for insurance (see the Methodology on page 12 for more details). We found that an estimated 28.6 million Americans will be eligible for the tax credits in 2014, and that the total value of the tax credits that year will be $110.1 billion.
Where’s the disconnect? Well the Congressional/CBO estimate for this particular cost was almost 600% lower than the Lewin Group study. Ed Morrissey lays it out:
In his presentation to Congress, CBO director Douglas Elmendorf predicted a cost of only $20 billion on health-exchange subsidies and associated costs. The Lewin Group, which conducted the study for Families USA, shows that four times as many people will become eligible for subsidies in 2014 than the CBO predicted in March and that the cost will be 550% higher as a result (page 4 of the linked study).
How did the CBO arrive at those numbers with which to calculate the cost of ObamaCare? Well when Morgen at Verum Serum pointed out the discrepancy to Families USA, they had a peculiar answer:
Morgen also contacted Families USA to get an explanation of the difference, and was told that he made an “apples to oranges” comparison. Why? This survey, they explained, showed how many people would be eligible, while the CBO predicted how many people would actually take advantage of their eligibility for tax credits. This is an odd distinction to make, since the entire idea of the subsidies is to encourage uninsured Americans to buy health insurance through both mandates and generous subsidies.
How likely will it be that people will pass on the notion of getting big tax credits to subsidize must-issue health insurance? And if the success rate in applying mandates, higher taxes, and more government authority to the 270 million Americans who are already insured is only 20-25% in getting the other 30 million insured, how is that at all successful?
The deficit projection given by Democrats was apparently based on 75% failure rates to get people into the system; their advocates are busy touting the massive amounts of subsidies in the program that will tip ObamaCare into a deficit exploder in Year 2.
75% failure rates? In other words, 75% of those eligible for a generous subsidy through tax credits won’t take advantage of them?
Really? I guess this is one of those “benefits” Bill Clinton was talking about that hasn’t quite made an impression yet – exploding costs well above the nonsense the Democrats used to “justify” the abysmal ObamaCare bill.
Talk about being sold a pig in a poke.
[ad] Empty ad slot (#1)!
As the monstrosity that is ObamaCare is gradually phased in, expect to see more and more companies saying this:
"The newly enacted health care reform legislation, while intended to expand access to care for millions of uninsured Americans, is also adding cost pressure as requirements of the new law are phased in over the next several years," wrote Rick Stephens, Boeing’s senior vice president for human resources.
And with that, Boeing has informed its workers that their premiums will be going up. Why? Well they have a “Cadillac” plan apparently:
Spokeswoman Karen Forte said the Boeing plan is more generous than what its closest competitors offer, and the company was concerned it would get hit with a new tax under the law.
The tax on so-called "Cadillac" health plans doesn’t take effect until 2018, but employers are already beginning to assess their exposure because it is hefty: at 40 percent of the value above $10,200 for individual coverage and $27,500 for a family plan.
Of course, that’s just not “fair”, is it?
One has to wonder, though, if Boeing may not be playing a little politics here, following McDonald’s example – make this visible and see if the administration won’t do for them what it did for McDonalds … issue them a waiver.
After all the administration that arbitrarily enforces the law in other areas certainly would trade a waiver for better PR as they did with Mickey D’s, wouldn’t they.
[ad] Empty ad slot (#1)!
…for as long as your health care plan exists, anyway. Which, for retirees of the 3M corporation, it no longer will. It seems that the passage of Obamacare has prompted 3M to join the rush for the door in terms of providing health care coverage.
As we’ve noted repeatedly here, the claims that you could keep your health care plan and physician could not possibly be true, as the “reform” package set up perverse incentives. What we are seeing is precisely what we predicted. Corporations and insurers are responding to Obamacare’s incentives by getting out of the health insurance business. Because that’s what the law’s incentives urge them to do.
It really is one of the most basic principles of economics: people respond to incentives.