GOP Lawsuit Attempts To Kill Obamacare (Season 8 Episode 1)

Congressional Republicans no longer seem to be talking about repeal or replacement or reform of Obamacare, but that doesn’t mean that the effort to rid the country of the onerous health insurance law is dead. The latest attempt on the life of Obamacare comes from Texas Attorney General Ken Paxton and early indications are that it may have a better chance at success than previously thought.

The lawsuit is based on the facts that Justice John Roberts’ majority decision preserved the Obamacare mandate as a tax and that Republicans later eliminated the tax penalty for not purchasing health insurance, essentially eliminating the mandate. The Republican plaintiffs argue that the Affordable Care Act is now unconstitutional because the law depended on the mandate to make the system work and the mandate has now been removed.

“There is no real true mandate because the tax is eliminated,” Darren McCarty, special counsel for the Texas Attorney General’s office, argued in federal district court. “The ACA is unconstitutional on its face.”

The Texas lawsuit has been joined by 20 states and the Trump Administration Department of Justice. While the state attorneys general are asking for the court to strike down the entire law, the DOJ is only seeking to invalidate certain portions of the law such as those that deal with coverage for people with pre-existing conditions and limits on how much insurers can charge people based on gender and age.

Defense of the law has been picked up by Democrats who argued that striking down the law would harm the millions of Americans with pre-existing conditions.

“The harm of striking down the ACA…would be devastating,” said Nimrod Elias, a California deputy attorney general defending the law.

The case hinges on whether Congress eliminated the mandate by removing the penalty. While the mandate is still technically part of the law, it will be unenforceable when the penalty expires.

Telltale signals from U.S. District Judge Reed O’Connor give opponents of the law hope for a friendly ruling. Observers said that O’Connor’s line of questioning often echoed the views of the Obamacare critics. The judge also asked questions about severability, whether other parts of the ACA could remain in force without the individual mandate.

O’Connor, who was appointed by George W. Bush, has ruled against the ACA in the past, issuing a temporary injunction against a regulation prohibiting price discrimination based on age and gender in 2016. Judge O’Connor said that he will deliver a ruling as quickly as possible, meaning that a decision before the midterm elections is likely.

Whether the decision strikes down all or part of the ACA or lets it stand, it could have an effect on the midterms. Democrats are using the threat to the law, which has become more popular since Donald Trump took office, to build support for midterm candidates. For their part, Republicans would use a decision against the law to show their base that they are making progress against government encroachment.

Conservatives shouldn’t get their hopes up. Lawsuits against Obamacare that looked more promising have all gone down to defeat and if O’Connor rules against the law, Democrats are certain to appeal. The case could eventually have the Supreme Court rule once again on the constitutionality of Obamacare.

In the meantime, a ruling against the law could not come at a worse time for Republicans. With GOP candidates already battered by association with an unpopular president, a ruling that allows Democrats to paint Republicans as hostile to people with pre-existing conditions would not help the party’s chances of holding Congress.

Originally published on The Resurgent

Taxation without representation: Why Roberts was wrong

Chief Justice John Roberts was wrong in his ruling on Obamacare. The ruling, which left the majority of the Patient Protection and Affordable Care Act in place, was based on Robert’s view that the much maligned individual mandate was a tax. His reasoning regarding the mandate is assailed by the conservative wing of the Court, but, even if he were correct on this issue, the entire law still should have been ruled unconstitutional.

If the mandate is actually a tax, then the Anti-Injunction Act should apply. This 1793 law provides that no one has standing to sue over a tax until they have actually paid the tax. Yet Chief Justice Roberts’ ruling holds that the Act does not apply because “Congress did not intend the payment to be treated as a ‘tax….’”

Roberts explicitly states that Congress did not intend for the individual mandate to be a tax, yet he found that it was constitutional because it was a tax. If Congress had passed a tax law, it would have been constitutional, but this is not what Congress did. Chief Justice Roberts had to rewrite the law, transforming a “penalty” into a “tax,” to find it constitutional. The ruling is an example of judicial activism.

Roberts explains his ruling by saying that the mandate does provide revenue for the government. He then explains that while Congress’ choice of wording, “penalty” vs. “tax,” controls the applicability of the Anti-Injunction Act, it does not affect the constitutional question of whether Congress may mandate the payment. In Roberts’ view, because the only consequence of failing to buy health insurance is a payment to the IRS, the payment is a tax regardless of how Congress labeled it.

Roberts did better on other points of the ruling. Liberals had pointed to Congress’ power to regulate interstate commerce as authority to regulate inactivity that affects commerce as well. The majority rejected this view: “The language of the Constitution reflects the natu­ral understanding that the power to regulate assumes there is already something to be regulated.”

Roberts continues, “The individual mandate, however, does not regulate existing commercial activity. It instead compels individ­uals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Con­gress to regulate individuals precisely because they are doing nothing would open a new and potentially vast do­main to congressional authority.”

Similarly, the Necessary and Proper Clause did not justify the mandate because it was not “consistent with the letter and spirit of the Constitution.” Congress must use means that are within its enumerated powers.

Finally, the majority also put the brakes on Congress’ use of federal money to coerce the states. The ruling notes that, “The Constitution simply does not give Congress the authority to require the States to regulate.” Congress must give the states a real choice without threatening to cut off other funding. Congress can attach conditions to funds, but not threaten to suspend other payments to states as a “means of pressuring the States to accept policy changes.” Roberts specifically states, “What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.”

Roberts took flack from both wings of the Court over his opinion. Justice Ginsburg’s dissenting concurrence is strongly worded. Her opinion boils down to one line: “Whatever one thinks of the policy decision Congress made, it was Congress’ prerogative to make it.” Unsurprisingly, Ginsburg (as well as the other three liberals on the Court) would have affirmed the law under the Commerce and Necessary and Proper Clauses. She writes, “We presume the statute under review is constitutional and may strike it down only on a ‘plain showing’ that Congress acted irrationally.” This view sets a very low standard by looking at not whether the law is allowed by the Constitution, she presumes it is, but whether Congress’ actions were reasonable in her eyes.

Ginsburg is particularly vehement in her rebuttal to the majority opinion that Congress may not regulate inactivity as a form of commerce. She explicitly states her support for “[t]he proposition that Congress may dictate the conduct of an individual today because of prophesied future activity” and that “Nothing in this language [the Commerce Clause] implies that Congress’ commerce power is limited to regulating those actively engaged in commercial transactions.” To Ginsburg and the liberals, the Commerce Clause is a blank check for Congress.

The four conservative justices, Anthony Kennedy, Clarence Thomas, Samuel Alito, and Antonin Scalia , jointly dissented against Roberts’ ruling. The four agreed that Congress could not mandate the creation of commerce in order to regulate it under the Commerce Clause. They also agreed that “the scope of the Necessary and Proper Clause is exceeded not only when the congressional action directly violates the sovereignty of the States but also when it violates the background principle of enumerated (and hence limited) federal power.” They agreed that the Medicare mandate was unconstitutionally coercive as well.

On the tax argument, however, the four disagree with Roberts, stating, “In all our cases the two [taxes and penalties] are mutually exclusive. The provi­sion challenged under the Constitution is either a penalty or else a tax.” The dissent continues, “We know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both.” According to the dissent, case law defines both terms: “A tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.”

Taking a strident tone, the dissent says, “We have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.” The most damning piece of evidence that the dissenters present, “the nail in the coffin,” is that the “mandate and pen­alty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s ‘Revenue Provisions.’”

Quoting more case law, the dissenters say, “’Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .’ or judicially rewriting it.” Yet the dissenters note that this is exactly what the Court does in the majority opinion:

The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax. And it changes the intentionally coercive sanc­tion of a total cut-off of Medicaid funds to a supposedly noncoercive cut-off of only the incremental funds that the Act makes available. The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions….

In the view of the four dissenters, since Congress did not write a severability clause into the law, the correct ruling would have been to strike down the entire law. This would be true even if the majority had only agreed that the coercive nature of the Medicare mandate to the states was unconstitutional. Severability clauses are usually inserted into legislation to stipulate that if one part of the law is found unconstitutional, the rest should remain in force.

Essentially Chief Justice Roberts has turned back the clock to 1765 and the Stamp Act. Our forefathers rejected this tax with the cry of “No taxation without representation!” Ironically, in 2012 we are again faced with taxation without representation. Chief Justice John Roberts, an appointed judge, has created a new tax that contravenes the will of Congress and the people. He also sets the disturbing precedent that under the taxing power of Congress almost anything, including inactivity, is subject to coercive taxes.

The Wall Street Journal quotes Justice Benjamin Cardozo who once said of judicial rulings that, “What is good in it endures. What is erroneous is pretty sure to perish.” In this week’s ruling, the new limits on federal power deserve to endure. The opinion of Justices Roberts and Ginsburg that Congress has the power to coerce its citizens through taxing practically anything, including inactivity, should perish. So should Obamacare.

 

Read this article on Examiner.com:

http://www.examiner.com/article/taxation-without-representation-why-roberts-ruling-was-wrong

SCOTUS ruling not the end for Obamacare opponents

President Obama finally got some good news today.

The Supreme Court, in a 5-4 decision, upheld most of the Affordable Care Act, including the individual mandate, today. In a stunning proof that judicial activism can cross ideological lines, Chief Justice John Roberts joined the Court’s liberals in finding that the individual mandate is constitutional under Congress’ authority to tax.

There was some good news for those who oppose Obamacare as well according to a Wall Street Journal analysis. The Court decided that the federal government could not expel states from Medicare if they refuse to comply with the law. The Court also limited abuse of Commerce Clause by stating that the Affordable Care Act was not permitted by Congress’ power to regulate interstate commerce.

Following the Battle of Bunker Hill, British General Sir Henry Clinton wrote that it was “A dear bought victory, another such would have ruined us." The same is likely true for President Obama of today’s victory.

Obamacare was not popular before it passed. It took parliamentary tricks and bribery to pass the law over strong public opposition, even with large Democratic majorities in both houses of Congress. The Cornhusker Compromise and the Louisiana Purchase will long be remembered with scorn. The deal that pro-life Democrats won from President Obama to keep federal money from funding abortion has already been forgotten as new mandates force all insurers to cover abortifacient drugs. Many Democrats who voted for the law are no longer in Congress due their violation of the public trust. Next January, there will be even fewer.

Obamacare is still not popular. Immediately after passage 55 percent of Americans favored its repeal according to Rasmussen. Forty-two percent were opposed. Last week, Americans still favored repeal by 54-39 percent. President Obama and the Democrats went to the wall to fight for a law that Americans oppose by a landslide.

In Georgia, a plaintiff in the lawsuit, Gov. Nathan Deal and Attorney General Sam Olens issued a joint statement on the ruling. Deal said, “Today, the highest court in the country let the American people down.”

Olens agreed, ““I disagree with this decision. Congress explicitly said this was not a tax. I call on Congress to act swiftly, repeal the law and replace it with real reform that respects the Constitution as written.”

Americans don’t like to be told what to do and they don’t like to be lied to. The Democrats have committed both sins. Most Americans know that the law was passed on lies. Americans were told that Obamacare would cut insurance premiums. Since the law was passed, premiums have risen even faster than before according to Forbes. Americans were told that Obamacare would decrease the deficit and be revenue neutral. A new study by the Mercatus Center says that the law will add more than a trillion dollars to the deficit. Americans were told they could keep their insurance and that everyone would have coverage. The Congressional Budget Office says that the law could cause 20 million Americans to lose their insurance. Barack Obama promised that there would be no tax increases for the middle class. In reality, the Heritage Foundation points out that the law includes $500 billion in tax increases, much of which will be borne by the middle and lower classes. While portraying themselves as anti-corporatists, the Democrats were secretly working with the health insurance companies to pass the law according to emails published in the Wall St. Journal.

Most glaringly, Americans were told that the individual mandate was not a tax. President Obama himself told CBS News that “I absolutely reject that notion” [that the individual mandate is a tax] when queried. "What it's saying is, is that we're not going to have other people carrying your burdens for you anymore," Obama continued. "Right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase."

Yet that is how the government presented its case in court. That is how the Court interpreted the law in order to find it constitutional, even though the law itself structured the mandate as a penalty, not a tax. It is obvious that President Obama and the Democrats lied.

Today’s defeat is not the end of the opposition to Obamacare. The law will ultimately be defeated. One effect of the ruling will be to fire up opponents of Obamacare for the November election. Mitt Romney will likely succeed President Obama and the Republicans will likely gain control of the senate. If the Republicans control both Congress and the White House, Obamacare’s days will be numbered.

Even if the Republicans are unable to repeal the law, it will almost certainly collapse under its own weight. Obamacare is too complex and unwieldy to succeed. It ignores market realities in exchange for centralized mandates and does nothing to control costs. The trillions that it adds to the deficit will add to the risk that the United States economy will collapse in the same manner of the European countries. Obamacare will not work any better than the stimulus or Obama’s other economic initiatives if it is allowed to take effect.

Even if repealed, the lasting legacy of Obamacare will be that it fundamentally and irrevocably changed the relationship between the American people and their government. Until today, the government had no power to coerce its citizens into engaging in commerce. Now, with the Supreme Court’s blessing, the federal government has no practical limits on its power as long as it can configure its mandates as a tax. Obamacare has left a gaping hole in America’s constitutional protections.

The Democrats will certainly expect to use that precedent to expand their power if the voters allow them to. After the arrogance, disregard for the law, and blatant lies of the Democrats and the Obama Administration, Americans should think long and hard before ever letting liberals near the levers of power again.

Obamacare ruling is election wild card

The Affordable Care Act finally gets its day at the Supreme Court this week. Although it may be several weeks before the Court publishes its ruling on the case, it is a sure thing that, whatever the ruling is it has the potential to have an explosive impact on the elections in November.

There are four likely outcomes for the Supreme Court ruling. First, the Court could rule that challengers to the law have no standing to sue since they have not had to pay the fine for not purchasing health insurance. This would delay a decision on the law for two to three years until after it takes full effect. Most observers consider this unlikely. Next, the Court could uphold the law in its entirety. Conversely, the Court could strike down the entire law. Finally, the Court could throw out part of the law, the individual mandate for example, and allow the remainder to stand.

The ruling will have an uncertain effect on the election. Hints at how the voters will view the ruling can be gleaned from two recent polls. According to Rasmussen, likely voters have never favored the health law. Immediately after passage in 2010, repeal was favored by a margin of 55-42 percent. In the most recent poll, taken on March 17-18, repeal was favored by 56-39 percent. Within those numbers are 46 percent who strongly favor repeal versus only 29 percent who strongly oppose it.

In a USA Today/Gallup poll of adults, Americans were split 45-44 percent on the question of whether passage of the ACA was good or bad, but the same poll shows that 38 percent believe that the law will make things worse for their family. Only 24 percent believe it will make things better. A strong majority of 72 percent believe that the individual mandate is unconstitutional. Only 20 percent believe that the requirement to purchase health insurance or pay a fine is legal under the Constitution.

Since Americans overwhelmingly oppose the ACA, Republicans have the most to gain from the Supreme Court’s decision. A victory for the administration or a muddled outcome, such as a decline to rule on the law or striking it down only in part, seems likely to aid Republicans because of the large number of Americans who strongly oppose the law. If the Court leaves the law largely intact, Republican candidates who promise to repeal the law if elected will tap into that voter anger. Anger at Democratic spending and the expansion of government fueled a landslide Republican victory in 2010 and if the Supreme Court upholds the ACA it could fuel a similar result this November.

Democrats have little to gain electorally from a Supreme Court victory. If the law is upheld, it may keep President Obama’s legacy from being tarnished as it would have been if it was found unconstitutional, but Obamacare is still a fundamentally unpopular law that was enacted without the support of the people. A reform that was supposed to have kept health insurance costs down has instead contributed to their increase at twice the normal rate of growth according to Kaiser and the cost of the law, which was touted as a plan that would reduce the deficit, is now projected cost almost double the initial estimates. If the law goes into effect, people may well find that there is even less to like about it than was previously thought.

Rep. Tom Price (R-Ga.), who is also an orthopedic surgeon, told Newsmax.com, “Both fiscally and for the sake of our health care system, Americans cannot afford the president’s healthcare law. The longer the president’s healthcare law remains on the books, the greater the threat it poses to our nation’s healthcare and our fiscal well-being.” He continued, “The CBO’s revised cost estimate indicates that this massive government intrusion into America’s health care system will be far more costly than was originally claimed. The law’s true cost to American taxpayers is part of a series of promises President Obama and Democrats in Congress made that will be broken.”

On the other hand, if the Supreme Court strikes down the law, it won’t necessarily help Republicans or hurt Democrats. A major source of contention will have been removed from the political landscape and voters who would have voted for Republicans because they opposed the ACA may move to other issues where they are more moderate. Similarly, the voters who favor the law, almost all of whom are probably Democratic voters anyway, are unlikely to be influenced by an unfavorable Supreme Court decision.

The biggest casualty of a decision sustaining Obamacare and the individual mandate would likely be the American people’s faith in government. Public opinion has been against the bill from the very beginning. Revelations of backroom deals like the “Cornhusker Compromise” and the “Louisiana Purchase” further hurt the law’s image even before it was passed. The abuse of parliamentary procedure to avoid a Republican filibuster further inflamed public opinion.

The United States has reached a point where trust in government is near 20-year lows. According to Gallup, only 19 percent trust the government most of the time. In a separate poll from Gallup last year, the federal government rated dead last in approval among a list of industries. The -46 percent net approval rating put the federal government at a historic low. Notably, respondents told Gallup that they rated state and local governments far higher than Congress or the president.

The Supreme Court is viewed more positively. Gallup’s approval rating for the Court is 46 percent versus 40 percent who disapprove. This can be compared to the approval rating for Congress at 12 percent. Sixty-three percent of Americans still trust the Supreme Court. However if the Supreme Court votes to uphold an unpopular law that was never wanted by a majority of the American people, a law that the majority of voters believes overwhelmingly to be unconstitutional, then the Supreme Court may face the same loss of trust and approval that the other branches of the federal government have experienced.

This is the great tragedy of the Obama era: that a president who once had the support and admiration of nearly all of the country, a president who pledged to eschew the “politics of cynicism” for the “politics of hope,” would become even more divisive than his predecessor; that a president who once preached the practicality of compromise and the need for national unity would use his position to short-circuit the democratic process, circumventing the will of the people and their elected representatives in Congress. The unpopularity of the Affordable Care Act and federal government itself is symbolic of the failure of President Obama to unite the people of the United States.

Originally published on Examiner.com:

http://www.examiner.com/elections-2012-in-atlanta/obamacare-ruling-is-election-wild-card

Supreme Court to hear Obamacare case this week

Next week the long awaited Supreme Court hearing on the Affordable Care Act, better known as Obamacare, will finally take place. The hearing comes just over two years after the law was passed. In a rare move, the Court is scheduling three days of oral arguments for the various aspects of the Affordable Care Act case. Typically, the Court hears two one-hour oral arguments each day that it is in session.

The Court has consolidated six lawsuits against the government about the Affordable Care Act. Four questions will be addressed. First, the Court will decide whether the Anti-Injunction Act means that the Court has no jurisdiction until the ACA goes into effect. The Tax Anti-Injunction Act of 1867 holds that a person protesting a tax in court must first pay the tax. The government’s position is that the fines that are levied as part of the individual mandate is a tax and therefore the court cannot hear the lawsuit against the tax until it is assessed. The individual mandate does not go into effect until 2014. The flaw in this defense is that President Obama and the Democrats specifically denied that the fine was a tax before the bill passed.

Second, the Court will address the question of the individual mandate, called the “minimum coverage provision” in court filings. The government holds that the Constitution’s Commerce Clause gives it the right to regulate the health insurance industry. Opponents argue that the failure to purchase health insurance is not commerce and therefore cannot legally be regulated by the federal government.

The government also argues that the mandate is also permissible under the Necessary and Proper Clause. Opponents argue that the Necessary and Proper Clause does not give the federal government the power to enact legislation that is otherwise unconstitutional because it is not among the powers granted to the government by the Constitution.

Next, the Court will determine whether the individual mandate is severable from the rest of the law. Generally, laws contain a severability clause that says that if any part of the law is found unconstitutional, the remainder shall remain in force. The ACA, for whatever reason, does not contain such a clause. Therefore, opponents argue that if the mandate is deemed unconstitutional then the entire law must be struck down. The government will argue that the rest of the law should stand even if the mandate is struck down.

Finally, the Court will hear whether ACA’s expansion of Medicaid places an unconstitutional burden on the states. Under the ACA, the states are required to expand Medicaid eligibility to an estimated 16 million people according to Yahoo. States that refuse will lose matching federal funds for their Medicaid programs. Twenty-six states have filed suit claiming that the Medicaid expansion is an unconstitutional violation of the Tenth Amendment, which states that powers not delegated to the federal government are reserved to the states and the people. Georgia is a party to this lawsuit.

Proponents of the law argue that courts have supported Congress’ ability to mandate that the states carry out programs that are paid for by federal money. They also note that the Medicaid expansion is paid for by federal funds for the first ten years.

Americans remain split on the Affordable Care Act. According to a recent USA Today/Gallup poll, 45 percent believe that it was a good thing that Congress passed the law versus 44 who believe it was bad. However, most believe that the law will make things worse for their family by a margin of 38-24 percent. An astonishing 72 percent Americans believe that the individual mandate is unconstitutional.

Public opinion notwithstanding, the decision is likely to be 5-4 in one direction or the other. The Court’s four liberals, Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, are almost certain to vote in favor of the health care law. The Court’s four conservatives, John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito, are just as likely to vote to overturn it. That leaves Anthony Kennedy, appointed by President Reagan but often a swing vote, as the likely deciding vote.

Regardless of the outcome, the decision will affect almost all Americans. The public will have to wait for the outcome, however. Even though the Court will hear arguments in the first three days of next week, a decision on the case may not be published for several months. Most decisions are not issued until the last months of the term: May, June and July.

 

Originally published on Examiner.com:

http://www.examiner.com/conservative-in-atlanta/supreme-court-to-hear-obamacare-arguments-this-week

Obamacare repeal update

The deciding vote on Obamacare?

There have been several important developments in the struggle to repeal President Obama’s health care reform law.  The Republican electoral tide that swept the Democrats out of power in a landslide victory last November was based in large part on the promise of Republicans to roll back the law that is already driving up health insurance costs.  They are attempting to make good on that promise. 

You have likely already heard that the Senate killed the Republicans’ first direct attempt at repeal.  HR 2, The Repealing the Job-Killing Health Care Law Act, passed the House of Representatives on January 19 by a vote of 245 to 189.  Georgia Democrats Sanford Bishop (D-2), Hank Johnson (D-4), John Lewis (D-5), John Barrow (D-12), and David Scott (D-13) all voted against repeal.  All of Georgia’s Republican representatives voted for repeal.  Three Democrats from other states did join the Republican majority in voting for repeal.

The drive stalled in the Senate, however.  As expected, the Democratic majority voted against the repeal.  All 47 Republicans voted for repeal, but 60 votes were needed to move the bill forward.  Both of Georgia’s senators, Saxby Chambliss and Johnny Isakson, voted with the Republican minority.  The chances were slim that the bill could pass the Senate at this point, but the vote was important to get the Democrats on record. 

The second development was that a second federal judge ruled Obamacare unconstitutional.  Just before Christmas federal judge Henry Hudson ruled that the individual mandate that is central to Obamacare was a violation of the Constitution’s commerce clause and did not constitute a tax as the president claimed.  This suit was brought by the state of Virginia.

The most recent ruling was in Florida on a lawsuit brought by twenty-six states against the new health care law.  Georgia is a party to the lawsuit as well.  The ruling was delivered by Judge Roger Vinson and generally can be boiled down to the fact that the federal government does not have the right to force Americans to engage in private commerce.  As Judge Vinson made clear, the case was not about health care, but about the federal government usurping its constitutional authority.

Some leftists make the claim that Judge Vinson (as well as Judge Hudson) is a judicial activist.  Appropriating conservative terms does not mean that they appropriate conservative truths as well.  The duty of the judicial branch is to strike down laws that do not conform to the Constitution.  Obamacare clearly does not meet that test.  Judicial activists do the reverse.  They twist the Constitution to match their own beliefs and opinions. 

The likely next step for Obamacare is the Supreme Court.  The Supreme Court is often reluctant to overturn popular legislation, especially since FDR tried to pack it with friendly justices after too many of his New Deal programs were overturned.  Obamacare is not popular, however.  It never has been.  And more than half of the states have signed on to lawsuits opposing it. 

Still, the makeup of the Court means that striking down the health care law is not a sure thing.  There are typically four justices who are considered strict constructionists, meaning they use a literal interpretation of the Constitution.  These are Chief Justice John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito.  The liberal wing of the Court is made up of judicial activists who don’t believe that the Constitution necessarily means what it says.  These justices include Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.  The one remaining justice is Anthony Kennedy.  Kennedy is a swing vote who could go either way.

The final development was the passage of HR 4, the Small Business Paperwork Mandate Elimination Act of 2011, by both the House and Senate.  This bill to repeal Obamacare’s 1099 reporting mandate for businesses had bipartisan support.  In the House, the vote was 245 to 89, exactly the same as for the repeal of the entire Obamacare law.  The Georgia delegation once against voted along party lines.

In the Senate, it was a different story.  The measure sailed through the Senate on a veto proof 81 to 17 vote.  This means that 34 Democrats joined with all 47 Republicans in voting for the bill.  The 17 no votes were all Democrats.  Georgia’s Republican senators supported the bill.

The large defection is probably due to the fact that 23 Senate Democrats will be defending their seats in 2012 (while only 10 Republicans are up for re-election).  Many of these Democrats who were elected in the Democratic sweep of 2006 face tough re-election campaigns, especially those who are from otherwise conservative states.  If current trends prevail, it is likely that the Republicans will take control of the Senate in 2012.

The repeal of the 1099 provision signals the beginning of Obamacare’s death by a thousand cuts.  If the Supreme Court does not strike it down first, the Republicans will hack it apart piece by piece.  The likely targets will be the most onerous provisions and those slated to go into effect first.  As long as conservatives and Republicans don’t waver and keep presenting the truth to the American people, Obamacare’s days are numbered.

http://www.examiner.com/conservative-in-atlanta/georgia-fights-obamacare-on-two-fronts"> 

Obamacare ruled unconstitutional

Obamacare is in legal trouble (Maverick2003)

In a welcome Christmas present to the majority of Americans who oppose President Obama’s health care reform law, a federal judge ruled the individual mandate to purchase health insurance unconstitutional this week.  US District Judge Henry Hudson declined to overturn the whole law, but said that requiring Americans to purchase health insurance “would invite unbridled exercise of federal police powers” as part of his 42-page ruling.

This is the third time that the health care law has had its day in court.  In October, a federal judge in Michigan ruled that a decision not to purchase health insurance was an activity that could “substantially affect interstate commerce” and could be regulated under the Constitution’s commerce clause.  In November, another judge in Virginia similarly found that the mandate was constitutional on the grounds that “Far from ‘inactivity,’ by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance.”  This meant that the commerce clause could be applied.

In contrast, Judge Hudson pointed out that the Democratic interpretation of the commerce clause was too broad.  “…  The same reasoning could apply to transportation, housing, or nutritional decisions.”  In other words, the government could solve the auto industry crisis by requiring everyone to buy a car, the homeless problem by requiring everyone to buy a house, and the obesity problem by requiring that everyone buy only healthy food.  If the government can force you to buy one product or service, there is no limit to what it can force you to do.

Additionally, Judge Hudson pointed out that requiring to Americans to engage in a private business transaction is unprecedented.  States require that drivers buy car insurance, but the health care mandate is different in several key points.  Auto insurance is not required for everyone; it is only required for people who want to operate vehicles on roads that are owned by the state.  Additionally, states are bound by their own constitutions and many of these do not have the same limitations of the US Constitution.

Judge Hudson also addressed the Administration’s claim that the individual mandate is constitutional under the government’s power to tax.  The mandate’s fine was clearly intended to be a punishment for not purchasing health insurance.  President Obama and other Democrats claimed before passage of the law that the fine was not a tax.  These claims were made in part because of President Obama’s promise not to raise taxes on middle and lower-income Americans.  Judge Hudson noted that the fine “lacks a bona fide intention to raise revenue” and therefore was not a tax.

There is yet another lawsuit winding its way through the courts as well.  In addition to Virginia’s suit, twenty states led by Florida are suing to overturn the law as well.  A federal judge in Florida had refused to throw out the case in October.  A hearing is scheduled for December 16.

Georgia is a party to the Florida lawsuit.  After (outgoing) Democratic Attorney-General Thurbert Baker refused to join the lawsuit, Republican Governor (also outgoing) Sonny Perdue was forced to appoint a Special AG to fight the law.

If the individual mandate is thrown out, then Obamacare will become unworkable.  The law’s mandates, such as not allowing insurance companies to turn away people who are already sick, would mean that health insurance would become either prohibitively expensive or unprofitable for insurance companies.  In the first case, people couldn’t afford it and there would be more uninsured.  In the second, there would soon be no insurance companies left to write policies.  Obamacare is already causing shortages of health insurance and rising health insurance premiums.  The government is already granting more and more exemptions from the health care law’s provisions.  It is becoming apparent that the law is an unpopular failure and a ruling against the mandate would speed its demise.

It is extremely likely that the case will eventually find its way to the Supreme Court.  A ruling there against Obamacare, while not assured, seems likely given the current makeup of the Court.  Interestingly, the recent rulings against Obamacare reflect a partisan bias by judges.  Both judges (George Steeh and Norman Moon) who upheld the law were appointed by President Clinton.  Both judges who ruled in favor of the challengers to the law were appointed by Republicans.  Roger Vinson was appointed by President Reagan and Judge Hudson was appointed by President George W. Bush.

This partisan divide underscores the key difference in judicial philosophy between Republicans and Democrats.  Democratic appointees typically favor activist judges who often rule the way they believe the law ought to be rather than how it is written.  In contrast, Republican appointees usually favor strict constructionists who rule based on actual wording of the law and the intent of Congress.  This means that Democratic appointees usually grant the government much more latitude to expand its control into American life.  It is yet another reason to consider party affiliation when voting.

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