Fix Health Care Policy

Court to DOJ: No More Stalling on Obamacare Lawsuit

Late yesterday, the U.S. 11th Circuit Court of Appeals handed the Obama DOJ yet another defeat in the Obamacare litigation—this time related to how quickly the appeal will proceed. Readers of this blog know that the Obama DOJ has been attempting to slow walk its appeal of Judge Vinson’s ruling. Judge Vinson stayed his decision striking down the whole of Obamacare, but only if the DOJ filed for expedited review in the 11th Circuit. The DOJ did file for expedited review on Wednesday, but as Todd Gaziano noted at the time, “the Administration’s motion to expedite the appellate briefing requests a timeline that is still too slow,” and the motion also claimed that if opposing counsel appealed any of the claims they lost below, then the Justice Department would need more time for briefing.

How slow was the proposed briefing schedule? As the lawyers for the states and the NFIB noted in their response, the DOJ’s “proposed briefing schedule is identical to the ordinary, non-expedited briefing periods” set forth in the federal rules. So much for expedition. (Read the rest at The Foundry…)

Tags: DOJ, expedited review, individual mandates, Judge Roger Vinson, ObamaCare, unconstitutional

VIDEO: Small Business Owners Fight Obamacare in Court

Research on the last seven recessions shows that small businesses generate about two out of every three new jobs during the recovery. But this time around the Obama administration has crippled the ability small businesses to lead the way in new hiring with their job killing Obamacare legislation.

Not only does the bill slap small businesses with an employment tax, new tax reporting requirements, and tons of new regulations, but it is also an unconstitutional extension of federal government power. (more…)

Tags: individual mandates, National Federation of Independent, ObamaCare, small business

The States Fight Back: Virginia Rejects Obamacare’s Individual Mandates

Yesterday the U.S. Constitution and federalism won a key battle. The Virginia Senate, which has a Democrat Majority, passed a bill prohibiting a requirement for Virginians to purchase health-care insurance. Five Democrats from swing districts joined all of the Senate Republicans in voting in favor of the measure. And with a Republican State House and Governor, this bill is expected to make it into law.

Some would argue that the legislative implications are negligible as the federal government, if it wants, can override state law and that an individual mandate could be authored in such a way to not run afoul of this Virginian measure. However, the practical implications of this effort are widespread. What are these?

The Constitution is Back in Vogue. Many of the elite politicians and media insiders ridicule anybody who questions health care federalism and the Constitution. The liberal leaders in Congress could not believe that the American people would value our nation’s Founding principles over their precious health care reforms. However, the fact of the matter is that these are serious issues that deserve deep thought and discussion. (more…)

Tags: individual mandates, ObamaCare, U.S. Constitution, Virginia

Law Suits Threatened Over Obamacare

The chorus of concern that an individual mandate forcing Americans to purchase health insurance is at a crescendo. The Attorney General of Florida, Bill McCollum, yesterday requested, in a letter, that other state Attorney Generals join him in “a full review of the individual mandate.” McCollum writes “serious doubts have been voiced whether the individual mandate is grounded in one of Congress’ enumerated powers. For example, if the individual mandate is treated as a fine on a person for conducting no activity at all, it may not fall within the scope of the U.S. Constitution’s Commerce Clause. If the individual mandate is treated as a tax, the nature of that tax may limit how the revenue provision is viewed under the U.S. Constitution’s Taxing Power.”

This is an indication that many States are concerned that the Federal Government is overreaching and violating the constitutional rights of citizens. The New York Times reports, “Mr. McCollum’s stance places him in line with the attorneys general of South Carolina and nearly a dozen other states who have also threatened to sue over the mandate.” The bill is yet to be signed into law and many Members of Congress are threatening to introduce legislation to repeal Obamacare and lawyers are lining up to challenge the constitutionality of the legislation. (more…)

Tags: Bill McCollum, Constitution, individual mandates, ObamaCare

Morning Bell: The Six Key Issues the House Must Cave On Before Obamacare Becomes Law

This morning at around 8 AM, the Senate passed, again on a straight party-line vote, Majority Leader Harry Reid’s (D-NV) manager’s amendment to the Senate’s version of Obamacare. This keeps the Senate on pace to pass the bill at 9 PM on Christmas Eve despite the fact that Americans overwhelmingly opposed the legislation. But even after the Senate gives President Barack Obama his $2.5 trillion Christmas present, the bill, assuming it is to be considered in regular order, still must go through a House and Senate conference.

President Barack Obama attempted to downplay differences between the House and Senate bills telling American Urban Radio Networks yesterday: “The Senate and the House bills are 95 percent identical. There’s five percent differences, and one of those differences is the public option. This is an area that has just become symbolic of a lot of ideological fights. As a practical matter, this is not the most important aspect to this bill.” We’ll let President Obama fight with his base abut how important a strong public option is to health reform, but a government run plan is just one of six key differences between the House and Senate bills:

Soak the Rich or Tax Everybody: The Senate bill relies heavily on a new excise tax on high cost health plans: a 40 percent tax on plan exceeding $8,500 for an individual and $23,000 for a family. The AFL-CIO and SEIU both call this a tax on working families. The Senate bill also includes a new premium tax on all insurers and the CBO confirms that the cost of this tax will be passed on to all Americans with private insurance. The House bill depends on a heavy new income tax targeted at top-earning taxpayers and small businesses. The 5.4 percent tax on individuals with incomes above $500,000, and on families with incomes above $1 million, is structured in a way that over time more and more Americans will be hit by this tax and small business owners would be particularly affected. (more…)

Tags: employer mandates, excise tax, individual mandates, Majority Leader Harry Reid, Medicaid Expansion, ObamaCare, public plan, senate health care bill, taxpayer funded abortion

Unconstitutional Mandate Attacked from the Left

The Left is starting to recognize some of the perils of health care legislation that would create a whole new way for government to control its citizens.

Democracy for America (run by Howard Dean’s brother) is now warning its left-wing allies, “The bill doesn’t actually “cover” 30-million more Americans – instead it makes them criminals if they don’t buy insurance.”

How true. Projections are that 8-million to 14-million Americans would pay billions of dollars for failing to buy insurance under the House bill.

To Democracy for America, this is wrong, but only because a government-run “public option” insurance plan is out of the Senate version of the bill. However, restoring a public option doesn’t fix the wrongness of having government dictate how you must spend your money. (more…)

Tags: Democracy for America, Howard Dean, individual mandates

Howard Dean: Obamacare Bigger Bailout for Insurance Companies Than AIG

On Good Morning America today, former-Vermont Governor and former-Democratic National Committee Chairman Howard Dean told host George Stephanopoulos:

“This is a bigger bailout for the insurance industry than AIG. A very small number of people are going to get any insurance at all, until 2014, if the bill works. … This is an insurance company’s dream, this bill. This is the Washington scramble, and I think it’s ill-advised. … We’ve gotten to this stage … in Washington where passing any bill is a victory, and that’s the problem. Decisions are being about the long-term future of this country for short-term political reasons, and that’s never a good sign.”

Dean is dead on. This is what we have been saying for months. Back in June we wrote under the header Stop the Health Care Bailout Before it Starts: (more…)

Tags: bailouts, individual mandates, Obama Health Care Plan

Putting Party and Vanity Above Country

Like a desperate last-minute Christmas shopper who will grab any gift and pay any price, Congress may rush through a hasty and ill-conceived rewrite of health care legislation. President Obama’s message to Senators seems focused more on party loyal and an appeal to desires for glory than on what Americans want or need.

With public support collapsing all about them (61% in opposition according to CNN’s December polling), Democrats may be motivated by a feeling that they’ve gone too far to turn back now, even if it’s in the wrong direction. They could invoke Benjamin Franklin’s aphorism that “We must all hang together, or assuredly we shall all hang separately.”

Franklin, however, had a much nobler purpose in mind—independence from government tyranny.

What’s in the final bill may become immaterial in this Christmas rush. That’s dangerous because the ultimate language remains a mystery after earlier efforts ran afoul of multitudes of objections. The 11th-hour rewrite of the bill will be major version Number Nine since varying editions began surfacing during the summer. With or without a co-called “public option,” it’s certain that the bill will displace millions of Americans from their current private insurance, put Washington in charge of all health care and insurance, and expand the number of people who depend on taxpayers to pay for their coverage. (more…)

Tags: employer mandates, Health Czar, individual mandates, Obama Health Care Plan

Morning Bell: Obamacare is Seriously Unconstitutional

On October 23rd, a reporter asked Speaker Nancy Pelosi (D-CA): “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” Speaker Pelosi shook her head and before moving on to another question replied: “Are you serious? Are you serious??” Pressed for a more substantive response later, Pelosi’s press spokesman admonished the reporter: “You can put this on the record. That is not a serious question. That is not a serious question.”

The Congressional Budget Office (CBO) disagrees. In 1994, the CBO said of an individual mandate to buy health insurance:

“A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.”

As much as Speaker Pelosi may wish otherwise, the CBO is dead on: the Supreme Court has never validated a federal power as intrusive as forcing all Americans to purchase a service due to their very existence. Sure, the Supreme Court has said that Congress may regulate a farmer’s production of wheat even if he never plans to distribute it off of his farm, and the Supreme Court has said Congress may ban the possession of Marijuana even if it is for personal use, but never before has the Supreme Court said the power to regulate commerce enabled Congress to force an individual to do something just because he existed.

In fact, the Supreme Court has always been clear that the Commerce clause must have some limits. In United States v. Lopez (1995), the Court struck down the Gun-Free School Zones Act, which attempted to reach the activity of possessing a gun within a thousand feet of a school. In United States v. Morrison, it invalidated part of the Violence Against Women Act, which regulated gender-motivated violence. In both cases, the Court found the regulated activity in each case to be noneconomic; it was outside the reach of Congress’s Commerce power, regardless of its effect on interstate commerce. The case for the constitutionality of the individual mandate is far weaker than either of these two cases. Congress was at least trying to regulate an individual’s activity in the cases above. But the mandate does not purport to regulate or prohibit activity of any kind, whether economic or noneconomic. To the contrary, it purports to “regulate” inactivity.

If the individual mandate is Constitutional, then Congress could do anything. They could: require us to buy a new Chevy Impala each year to support the government-supported auto industry; require us to buy war bonds to pay for the Iraq and Afghan wars; require us to grow wheat (10 bushels each), or pay someone else to grow your share; require us to buy whatever they want.

Many on the left immediately point to state mandates that drivers purchase car insurance as proof of a mandate that all Americans buy health insurance is not new. But car insurance mandates are distinguishable in at least four ways: 1) they are state requirements and states have broader constitutional authority than the federal government; 2) they apply to drivers only, not all Americans (e.g. passengers are not required to carry insurance); 3) drivers use public roads; 4) states only require drivers to insure against injury to other drivers, not to insure themselves against personal injury.

Yesterday The Heritage Foundation’s Center for Legal and Judicial Studies released a Legal Memorandum written in conjunction with Georgetown University Law Center Professor Randy Barnett and Nathaniel Stewart explaining: Why the Personal Mandate to Buy Health Insurance Is Unprecedented and Unconstitutional. Introducing the paper, Sen. Orrin Hatch noted:

“James Madison said that if men were angels, no government would be necessary and if angels governed men, no limits on government would be necessary. Because neither men nor the governments they create are angelic, government and limits on government are both necessary for ordered liberty. Politics may tell us what we want to do, but the Constitution tells us what we may do and we must keep those separate. The ends do not justify the means for one simple reason – liberty. Liberty requires limits on government power, it always has and it always will.”

Someone needs to explain this concept to Speaker Pelosi. Seriously.

Tags: CBO, Constitution, fines, House Speaker Nancy Pelosi, individual mandates, jail times