In this podcast, Bruce and Dale discuss the president’s middle east speech, Obamacare waivers, and fiscal policy.
The direct link to the podcast can be found here.
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There’s a lot being written and said about the latest batch of ObamaCare waivers and the fact that many have gone to companies in Nancy Pelosi’s area. And, of course, the agency granting them has claimed that Pelosi had absolutely no effect on them being granted.
Okay, that’s not the important point anyway. Tim Pawlenty actually manages to stumble across it as he claims cronyism in their grant:
"I don’t blame people for trying to get out from underneath it — that it is an awful law," Pawlenty said. "But when you have that many needs for exemptions, it tells you that the law — it is a warning sign that the law is broken and doesn’t work."
Ya think? You have about 26 or 27 states challenging the Constitutionality of the bill and its individual mandate. You have hundreds, if not thousands of companies, agencies and businesses seeking waivers. And obviously, there’s an organization in place to grant those waivers. Imagine a job where you review and grant waivers to a law. I don’t know about you, but that would tell me there must be something fundamentally wrong with it.
Pawlenty is also correct about his broader point – those without the ability to appeal for a waiver are stuck with paying the piper:
"Another example of really crony politics or crony capitalism, if you’ve got the right connections, the right lobbyists, the right interest group, you get your special deal, and the rest of us get our wallet out, and that’s in the tax code, it’s in earmarking, and now you see it in ObamaCare.”
Yes, exactly. His larger point is absolutely correct. Those without the connections do indeed end up having our wallets looted. Cronyism is certainly alive and well and very prevalent not only in the treatment of ObamaCare, but in other areas as well. Which brings up an ironic point – for the party of “fairness” this seems singularly unfair. Yet Democrats aid and abet it – in fact, just like Republicans, they use this sort of process to gain favor with certain constituencies … at the expense of others. And by expense, I’m including paying the bill too.
ObamaCare is an obviously wretched law. What was supposed to be insurance reform ended up being a polyglot of government bureaucracy at a huge and unaffordable price.
Now we hear the House GOP members saying that repealing it is “hard”. We hear candidates like Romney and Gingrich saying they agree with parts of it, like the individual mandate. Cronyism is directly linked to power – it’s a give and take process that benefits politicians. It comes as no surprise to me that both sides are engaged in it up to their necks. The problem is it is unlikely to ever get fixed since it is the fox guarding the hen house and enjoying the job.
Or perhaps I should caveat that by saying “should” never be President, given the current occupant who also “should” never have been President.
Romney gave his major health care speech yesterday in which he sounded like he was running as Obama’s VP. It was totally unconvincing. As Avik Roy says at NRO:
Mitt Romney just gave a more articulate defense of Obamacare than President Obama ever has. He continues to believe that the individual mandate is a good idea, despite the fact that the “free-rider” problem is a myth. His effort to make a distinction between Romneycare and Obamacare was not persuasive: If anything, he convincingly made the opposite case, that Romneycare and Obamacare are based on the same fundamental concept.
For him to have any credibility with the right and GOP voters, he had a simple mission: tell them why he signed RomneyCare into law in MA, why it was a mistake and why he was going to fight to repeal ObamaCare.
He did none of those things and thus became, at least in my eyes, an unviable candidate. He obviously has absolutely no problem with the level of government interference in the health care market and certainly isn’t going to be a champion of backing government out of it if elected. In fact, of all sources, the New York Times nails the problem (albeit coming at it from a different direction than me):
Tearing it down [RomneyCare] might help him politically, he said, but “it wouldn’t be honest.” He said he did what he “thought would be right for the people of my state.” A mandate to buy insurance, he said, makes sense to prevent people from becoming free riders, getting emergency care at enormous cost to everyone else.
Where he went off the rails, however, was in not acknowledging that that same logic applies to the nation. Mr. Romney tried desperately to pivot from praising his handiwork in Massachusetts to trashing the very same idea as adapted by Mr. Obama. His was an efficient and effective state policy; Mr. Obama’s was “a power grab by the federal government.”
He tried to justify this with a history lesson on federalism and state experimentation, but, in fact, he said nothing about what makes Massachusetts different from its neighbors or any other state. And why would he immediately repeal the Obama mandate if elected president? Because Mr. Obama wants a “government takeover of health care,” while all he wanted was to insure the uninsured.
That distinction makes no sense, and the disconnect undermines the foundation of Mr. Romney’s candidacy.
I absolutely agree. In fact, the problem isn’t federalism and state experimentation, it is a principle – government, at any level, doesn’t have the right to compel a person to buy something if they choose not too. One of the nasty little problems with big government types is that freedom allows too many choices and Romney is no different than those on the left who’d like to pare those choices down for their convenience and to extend the power and control of government (and their central planning efforts).
Newt Gingrich, who recently joined the run for the presidency, is no different than Romney as his record tells us and don’t let him try to fool you into thinking otherwise. Huffington Post gives a partial list of the times Gingrich has touted health insurance mandates or attempted to argue in their favor from a moral perspective:
At an Alegent Health event in Omaha in 2008, Gingrich said it was "fundamentally immoral" for a person to go without coverage, show up at an emergency room and demand free care.
During the keynote address to the Greater Detroit Area Health Council’s annual Health Trends Conference in April 2006, Gingrich said he would require Americans earning above a certain income level to buy health insurance or post a bond, the Detroit Free Press reported.
In a June 2007 op-ed in the Des Moines Register, Gingrich wrote, "Personal responsibility extends to the purchase of health insurance. Citizens should not be able to cheat their neighbors by not buying insurance, particularly when they can afford it, and expect others to pay for their care when they need it." An "individual mandate," he added, should be applied "when the larger health-care system has been fundamentally changed."
And in several of his many policy and politics-focused books, Gingrich offered much the same.
In 2008’s "Real Change," he wrote, "Finally, we should insist that everyone above a certain level buy coverage (or, if they are opposed to insurance, post a bond). Meanwhile, we should provide tax credits or subsidize private insurance for the poor."
In 2005’s "Winning the Future," he expanded on the idea in more detail: "You have the right to be part of the lowest-cost insurance pool and you have a responsibility to buy insurance. … We need some significant changes to ensure that every American is insured, but we should make it clear that a 21st Century Intelligent System requires everyone to participate in the insurance system."
"People whose income is too low should receive Medicaid vouchers and tax credits to buy insurance," he continued. "Large risk pools (association health plans are one model) should be established so low-income people can buy insurance as inexpensively as large corporations. Furthermore, it should be possible to buy your health insurance on-line to lower the cost as much as possible."
Show me the difference between Gingrich and Obama (or Romney) on their desire to use the power of government to mandate insurance coverage. The fact that Gingrich draws a line at a particular level of income doesn’t change the fact that in principal he agrees that government should have that power.
Just as serious a problem, at least for me, is Gingrich’s stance on global warming. Gingrich appeared in a commercial for the “We initiative” with Nancy Pelosi. The We Initiative is sponsored by Al Gore’s “Alliance for Climate Protection”.
This alone is reason enough, in my book, to totally dismiss a Gingrich run.
Add in his support for an individual mandate for health insurance and his candidacy is DOA as far as I’m concerned. And Romney? On life support with a poor prognosis for the future.
Like uncovering more nonsense to be found in the promises made for ObamaCare.
Such as, “when everyone has insurance, Emergency Rooms will no longer be overcrowded.”
Hospital emergency rooms, the theory goes, get overcrowded because people without health insurance have no place else to go.
But that’s not the view of the doctors who staff those emergency departments.
The real problem, according to a new survey from the American College of Emergency Physicians, isn’t caused by people who don’t have insurance — it’s caused by people who do, but still can’t find a doctor to treat them.
A full 97 percent of ER doctors who responded to the ACEP survey said they treated patients "daily" who have Medicaid (the federal-state health plan for the low-income), but who can’t find a doctors who will accept their insurance…."The results are significant," said ACEP President Sandra Schneider in prepared comments. "They confirm what we are witnessing in Massachusetts — that visits to emergency rooms are going to increase across the country, despite the advent of health care reform, and that health insurance coverage does not guarantee access to medical care."
Yes, that little 1/50th scale ObamaCare model that’s been functioning – well sort of – in Massachusetts (aka RomneyCare) has proved to be the debacle it was predicted to be.
And the ObamaCare promise hasn’t tested out there at all.
The Massachusetts story Schneider refers to is important because it shows exactly what we can expect under the new health care law. In the wake of the Bay State’s 2006 health care overhaul, which provided the model for ObamaCare, emergency room visits soared. Backers of that overhaul made arguments similar to President Obama’s, saying that they hoped that by expanding insurance coverage, they’d get people set up with primary care physicians and thus reduce the number of emergency room visits. Didn’t happen. Lines to see doctors got longer. And as they did, emergency room visits rose 9 percent between 2004 and 2008, at which point the commissioner of the state’s Health Care Finance and Policy division kind of shrugged his shoulders and admitted that the uninsured aren’t really the cause of emergency room crowding. Too bad, I guess, and too late: Massachusetts passed the law anyway. And now the rest of us are stuck with it too.
Yup. And the cost?
But John Goodman, the head of the National Center for Policy Analysis, did some rough calculations for the health policy journal Health Affairs last year, and he estimated that thanks to the law’s coverage expansion, we can expect somewhere in the range of 848,000 to 901,000 additional emergency room visits each and every year. ObamaCare’s backers are right that, as passed, the law will result in significantly greater health insurance coverage across the country. But all that coverage will come with a hefty price tag attached: about a trillion dollars over the next decade, and more like $1.8 trillion in the first full decade of operation. In return we’ll get longer wait times at the doctor, and even more crowded emergency rooms—but nothing like a guarantee of actual access to care.
Sucks, doesn’t it?
One of the Kossaks has a post up about the polls showing WI Governor Scott Walker on the wrong end of them as he moves to fix the WI budget and curtail the power of public sector unions.
Poll after poll is telling Scott Walker the same thing: you are on the wrong side of public opinion. While early polling can fool you, we now have substantial data both from the nation and from Wisconsin.
The bottom line is that Gov. Walker has overplayed his hand with the public. Every Republican governor who is trying to curtail collective bargaining is at risk for being seen by the public as taking rights away, not balancing the budget. That can be done with givebacks (and the public is all for that, especially through negotiation.) But trying to curtail collective bargaining is seen by the public as the power grab it really is. The polls leave no doubt.
My reaction is, “so what”?
I mean I seem to recall poll after poll telling Obama and the Democrats that Americans didn’t want the ObamaCare monstrosity. But we were reminded that he’d won and elections have consequences.
Is that no longer true?
Commerce clause idiocy– deciding not to act same as acting, thus can be regulated and action mandated (ObamaCare ruling)
Another federal judge has found for the Constitutionality of the individual mandate. But if ever you’ve wondered what tortured logic looks like (made in an effort to justify something that just doesn’t fit) then you’ll be amazed to read the following from the ruling:
As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power….However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality. [emphasis added]
Our thoughts are now actions. There literally is nothing the federal government cannot regulate provided there is even a hypothetical connection to the economy, even if the connection at most is in the future.
Excuse me while I sit down and ponder all of that for a moment. Anytime you make a choice not to act you are "acting". Therefore, the court has now decided, any decision to not to act (related to commerce) is an act and you can be therefore required to do what the government says you must do.
Or, more succinctly, you have no real choice regardless of what you decide, so sayeth the court.
If I decide not to buy a car, I’m acting, and if the government wanted to require me to buy a car, under this ruling, it could.
That’s just absurd (but Government Motors will most likely be putting together a heck of a lobbying effort to carry this ruling out to its logical end).
Oh and borrowing again from Jacobson, a little reminder of where all this “legal thought” is supposedly grounded:
The Congress shall have power…. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
There is a new opinion from U.S. District (DC) Judge Kessler ruling that the individual mandate imposed by ObamaCare is constitutional. The primary importance of the ruling is that it is squarely at odds with the Judge Vinson opinion from the District of Florida on one key issue: that deciding not to purchase something is an “activity” that can be regulated under the Commerce Clause. I’m still going through it, and will have more to say, but a few things really leaped out at me.
(1) Kessler places a lot of emphasis on the “free riders” who consume medical services but don’t pay for them. According to the judge, these free rider problems are illuminated by the congressional findings found in the Affordable Care Act (at pp. 39-40):
The findings on this subject could not be clearer: the great majority of the millions of Americans who remain uninsured consume medical services they cannot pay for, often resulting in personal bankruptcy. In fact, the ACA’s findings state that “62% of all personal bankruptcies are caused in part by medical expenses.” ACA § 1501(a)(2)(G), as amended by § 10106. Of even greater significance to the national economy is the fact that these uninsured individuals are, in fact, shifting the uncompensated costs of those services–which totaled $43 billion in 2008–onto other health care market participants, as well as federal and state governments and American taxpayers. See ACA §§ 1501(a)(2)(F), (G),as amended by § 10106; Thomas More Law Ctr., 720 F.Supp.2d at 894.
Because of this cost-shifting effect, the individual decision to forgo health insurance, when considered in the aggregate, leads to substantially higher insurance premiums for those other individuals who do obtain coverage. According to Congress, the uncompensated costs of caring for the uninsured are passed on by health care providers to private insurers, which in turn pass on the cost to purchasers of health insurance. “This cost shifting increases family premiums by on average over $1,000 a year.” ACA §1501(a)(2)(F), as amended by § 10106. Thus, the aggregate effect on interstate commerce of the decisions of individuals to forgo insurance is very substantial.
There are many problems with these “findings” chief among which is an innumeracy problem. According to the first two quoted sentences, we are supposed to infer that 62% of all personal bankruptcies are made up of those “who remain uninsured” and “consume medical services they cannot pay for.” Indeed, according to Kessler’s understanding of the findings, the foregoing population is the “great majority of Americans who remain uninsured.” The only problem is, even if we assume that the 62% statistic is correct (which is a stretch), the number of personal bankruptcies every year does not even reach 2 million. Indeed, 2009 saw personal bankruptcies soar by 32% … to 1.41 million. Sixty-two percent of that is just 874,200, which is far, far fewer people than the “great majority of the millions of Americans who remain uninsured.”
(2) Another glaring issue is that the “cost-shifting” complained of is entirely the fault of the federal government, not “free riders,” thanks to Congress passing EMTALA in 1986, pursuant to which practically every hospital in the nation was forced to accept any and every patient who requested “emergency services.” In short, Congress created the free riders with this legislation.
Now let’s follow the logic here: (a) hospitals refuse to treat patients who can’t afford their medical services, therefore Congress must force hospitals to treat regardless of ability to pay (i.e. costs shifted to hospitals); (b) Patients who can’t afford the medical services, but who hospitals must treat, raise costs of medical services, which are mostly paid by insurers who raise their rates and pass them on to paying patients (i.e costs shifted to service-providers, then insurers, then paying patients); (c) insurance costs are entirely too high because uninsured patients, who can’t afford insurance or medical services, but whom hospitals must treat anyway, which drives up the costs of services and therefore the costs of insurance, and therefore Congress must force everyone to buy insurance (i.e. costs shifted from paying patients to those who can’t afford services or insurance); (d) because some people can’t afford insurance, they must be subsidized in their mandated purchase of insurance by taxpayers (i.e. costs re-shifted back to paying patients).
Putting it all together, according to Kessler’s opinion, Congress must be able to force individuals to purchase insurance because individuals who can’t afford insurance, but still consume health services (thanks to Congress), are causing the health insurance market to become distorted. (Oh, and by the way, those who can afford insurance are going to have to subsidize those who can’t and are therefore responsible for this whole mess in the first place.) Does that make any sense?
(3) The one other thing that really struck me as worrisome is Kessler’s emphasis on the infamous Wickard v. Filburn case (at p. 40):
In this case, the link [between the activity and the market being regulated] is strikingly similar to that described in Wickard: individuals are actively choosing to remain outside of a market for a particular commodity, and, as a result, Congress’s efforts to stabilize prices for that commodity are thwarted. As Wickard demonstrates, the effects of such market-distorting behavior are sufficiently related to interstate commerce to justify Congress’s efforts to stabilize the price of a commodity through its Commerce Clause power.
This is the reasoning underpinning Kessler’s holding (at p. 38) that “[b]oth the decision to purchase health insurance and its flip side–the decision not to purchase health insurance–therefore relate to the consumption of a commodity: a health insurance policy.” In this view, any decision made about an arguably economic subject, even the decision not to participate in a market concerning that economic subject, is subject to regulation by Congress.
Accordingly, should Congress decide to regulate the market for U.S automobiles, your decision to not purchase a vehicle can be regulated and even penalized by federal law. In fact, if Kessler’s view of the Constitution is correct, then Congress could require that you purchase a GM or Chrysler vehicle in order to stabilize the price of that commodity. Or perhaps, because of free rider problems, you can be penalized for choosing not to have children who would grow up, enter the labor force and pay the Social Security and Medicare taxes necessary to support you in your older years. If Kessler is correct, then the only limit on Congressional power is the inability to conjure up a market to be regulated, since any decision (participate/not participate) will have a substantial effect on that market when considered in the aggregate.
I would submit that this cannot be the correct view. The Commerce Clause power has already been distended far beyond what was intended when it written. If the Supreme Court adopts this decision, or something similar, the Congress would effectively have carte blanche to regulate whatever it desires.
In any event, those three things stood out to me. I’ll try to have some more on the opinion itself by tonight.[ad#Banner]
This is sure to revive talk of death panels. And I’m afraid I simply don’t understand the reasoning here. But it is a stark example of the state making decisions that should be left to the people involved – in a free country, that is.
A Windsor, Ont. couple’s fight to bring their gravely ill baby home to die ended in bitter tears Thursday when a Superior Court judge dismissed their appeal to stop doctors from removing the infant’s breathing tube at the hospital.
The father and relatives of one-year-old Joseph Maraachli wept outside a London courthouse after an emotional Justice Helen Rady upheld the earlier decision of an independent provincial tribunal forcing the baby’s parents to comply with doctors’ orders.
With all of their legal avenues exhausted, the family will have to say goodbye to Joseph Monday morning — on Family Day — when his breathing tube will be removed.
Apparently the baby has a rare neurological disease which has put him in a “severe and deteriorating neurological condition that has left him in a persistent vegetative state, according to specialists in London, Ont., who’ve examined him. “
Bottom line, the child is dying. It is now to the point where the baby can’t swallow or breath on his own. The parents know and understand that. They know the child will die. They’re not asking the state to try and save their baby. Instead, what they are asking – what they have to ask, apparently – is permission of the state to take their child home and let the baby die among "friends and loved ones".
Pretty outrageous request, isn’t it? And yet they don’t have the final say.
The parents had petitioned the regional medical board for a tracheotomy to be performed on the child to facilitate their ability to take him home with them. That would have opened up a direct airway which would have made it possible to take the baby home and let it die there.
Oh, too much to ask apparently. Remember, the baby is dying. It’s going to die. There’s no question about that – everyone involved knows it will be dead in a matter of hours if not days. The parents are not asking for heroic or extended (and expensive) treatment be continued. Just a tracheotomy.
The reason given for the refusal?
But doctors refused to perform the procedure, citing serious risks of infection, pneumonia and other possible complications.
It’s a bit like refusing a lung cancer patient with stage 4 cancer a final cigarette because it might kill them. The reason is absurd on its face. But apparently enough that a judge decided for the state and not the parents. So instead of risking infection or pneumonia and letting the parents take their child home to die, the state insists on removing the breathing tube in the hospital and letting the child smother to death there.
Maraachli and Nader went before the Consent and Capacity Board of Ontario, an independent body that deals with matters under the Health Care Consent Act, which sided with the doctors in late January and agreed that it was in Joseph’s best interest to have the breathing tube removed.
Don’t you love it when something called the “Consent and Capacity Board” has the final say on what is in the “best interest” of a child, rather than the parents?
Given the structure and effect of this monstrosity called ObamaCare, that is the probable end state we’ll eventually see here – an insurance industry which will collapse and in answer to the “problem” which government created, a single-payer system will be implemented. And you can bet that something along the line of the “Consent and Capacity Board” will eventually take all such decisions out of your hands and make them exclusively the decision of the state.
(HT: All American Blogger)
When is a penalty not a penalty? Ask Rep Shelia Jackson-Lee (D-TX). Yesterday she told the House Judiciary Committee that the requirement imposed on individuals to buy health insurance doesn’t really constitute a penalty for non-compliance:’
“I would make the argument, one, that instead it is an incentive to do right–that it is not penalizing because penalty is punishment,” Jackson-Lee told the Judiciary Committee.
“You’re not punished if you have health insurance, in fact. And so you are, in fact, incentivized to have health insurance, rather than take the negative which is to suggest that because we have a penalty you are being punished,” Rep. Jackson-Lee said.
“I am helping you. I am helping you not to have 26 percent un-insurance in the state of Texas. I’m helping children be insured. I’m helping diverse minorities be insured,” said Rep. Jackson-Lee. “And I know during the civil rights argument–even though we were arguing under the Constitution–there were many policy statements being made: Do we want to live in a nation that discriminates against a person because of the color of their skin? In addition to the constitutional argument, do we want to live in a nation where there are people being uninsured causing catastrophic costs unto the nation and others have to pay. I think that is the question that needs to be considered by the courts.”
Unfortunately for Rep. Jackson-Lee, who may have never actually read the bill, the law is quite specific about non-compliance.
“If an applicable individual fails to meet the requirement of subsection (a) [having a government-approved health-insurance policy]… there is hereby imposed a penalty with respect to the individual.”
Elsewhere, in a section entitled “Payment of Penalty,” it says that individuals failing to carry a government-approved health insurance policy must pay a maximum penalty of $750.
Meanwhile back in the runaway logic train of Ms. Jackson-Lee:
“But I also need to say whether or not it is more an incentive than it is a punishment,” said Rep. Jackson-Lee. “I am more inspired by incentive. And I welcome it being a parking ticket. We get parking tickets all the time, and no one complains about being required to do the right thing.”
One of those bright stars – because of the level of intrusion we’re allowed this government to make – who are making decisions about your life.
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.