Why ObamaCare Matters
It looks like the President’s health care law is getting the treatment it deserves. The 5 member conservative majority on the Supreme Court not only subjected the Patient Protection and Affordable Care Act (a.k.a. ObamaCare) to scrutiny but asked the necessary hard questions to the U.S. Solicitor General about the constitutionality not only of the penalty someone has to pay if they do not have health coverage but also the logic behind the individual mandate itself.
I got a big kick out of the weakness of Solicitor General Donald Verrilli’s stumbling and stammering throughout the entire cross examination. Justices Scalia, Roberts, Alito, and Kennedy literally made mince-meat out of his arguments while Court liberals tried to assist Verilli and simultaneoulsy talk him up in an attempt to defend him.
The issue at hand with the case is not necessarily the constitutionality of the individual mandate and other rules in the health care law or whether or not the penalty for non-converage is a tax but the essential point to the whole case is severability. Each of the 5 conservative justices seem to be in agreement that, in one way or another, the individual penalty and mandate is unconstitutional. When it comes to severability this is where things get interesting.
Usually when Congress passes a law in anticipation of a court challenge the legislative body inserts a severability provision in it asserting that if one section of the law is struck down other parts of it will stand. In the case of the President’s health care law, Congress neglected to put such a provision in it. This being the case my guess is the entire law itself will fall despite the court’s reluctance to do so. One attorney who reviewed Florida Federal Judge Roger Vinson’s opinion striking down Obamacare observed that in Section 1501 of the PPACA the individual mandate is deemed essential to the entire law’s ability to function.
Based on the court’s review today of the severability of the PPACA, I suspect that ultimately the Supreme Court will strike down the law in its entirety. For the court not to invalidate other provisions would mean an escalation in taxes and healthcare costs. I can only imagine the ballooning in insurance premiums if not the outright collapse of the private insurance market if the statute outlawing insurance companies from taking into account pre existing conditions remains.
What is remarkable is that the President has kept a low profile during the deliberations. The fact that the Administration has no back up plan should PPACA be struck down, the law was passed knowing conservatives made up the majority of Justices on the Supreme Court, the lack of a severability clause, and Verilli went into the case so poorly prepared and inarticulate leads me to conclude that the Obama Administration is not and never was serious. It’s obvious that the Democrats enacted this in the shadow of mid-term elections to give people a new entitlement in hopes of fending off Republicans taking over Congress, simultaneously making the case for one-party rule with the end goal to help ensure Obama’s re-election and not out of any conviction to (in their minds) help people who can’t afford health care.
Is it any wonder that Obama’s base is more than upset not only at Verrilli’s conduct but at the President’s overall performance? This goes to show that (rightly so) this Train Wreck will be (figuratively speaking) one more nail in his coffin come November 2012. Obama has done so much to alienate his base the Supreme Court striking down one of Obama’s signature efforts along with sagging economic and poll numbers will literally be a political death blow from which the President will never recover.
I also give an honorable mention for the demise of ObamaCare to libertarian lawyer Randy Barnett. Barnett blogged about PPACA and raised numerous legal problems and constitutional arguments against it on his blog as well as in internet chatrooms beginning before the ink from Obama’s signature on the Affordable Care Act was dry. In less than a year Barnett’s legal theories on the matter ended up in Judicial decisions.
With the demise of ObamaCare the Left will be down but not out. Fortunately, and as one columnist observed, the effects of a decision striking down PPACA will be as such that many other things enacted via the Commerce Clause could come under scrutiny too. The fact that the Justices noted on numerous occasions that the Federal Government is delegated enumerated powers granted by the Constitution I am optimistic that the idea that the laws of the land are limits on government power could make a comeback in a big way. With the demise of such a major piece of legislation the bar for Congress passing new laws citing the Commerce Clause will be much higher and many may not be able withstand court challenges as much as they used to.
However, if there is to be a debate about the future of American health care let it begin here. My mother was a nurse for over 30 years in which during her time in the field she was around before Medicare and Medicaid were enacted. Aside from the fact that insurance was much cheaper before the federal government took up health care for the elderly and poor, there were state and local programs along with private charity hospitals and clinics that gave good quality care to people who needed it and may not have had insurance. When Medicare and Medicaid were implemented, all of those clinics along with state and local programs disappeared. The mechanism used to help others prior to Medicare and Medicaid was perverted from an act of charity into force. This is something my mother would not ever admit and I think most Americans should come to realize that the care of others should be a true act of charity grounded in a personal choice rather than a political act.