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Republicans Rock the Airwaves
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A Further Perspective
Obamacare’s Final Chapter
Overturning Judge Vinson’s ruling would expand Congress’s power to politically unacceptable heights.
Judge Roger Vinson’s summary judgment declaring the Patient Protection and Affordable Care Act unconstitutional goes beyond providing legal basis for overturning the requirement to buy healthcare. He demonstrates that the individual mandate is merely a means to solve a political problem created by the faulty drafting of Obamacare. In doing so, he forces the administration and the Supreme Court to overturn his decision by expanding the power of Congress in capricious ways neither the Founders intended or voters will be happy with.
The first part of Vinson’s brief rejects the complaint made by the 26 states opposing Obamacare that the required expansion of Medicaid is coercive because it forces hard choices on states it did not agree to. Vinson (citing another court opinion) notes, “The difficulty if not the impropriety of making judicial judgments regarding a state’s financial capabilities renders the coercion theory highly suspect as a method for resolving disputes between federal and state governments.” Governments cannot use the Constitution to solve a problem created by bad policy.
In making this argument Vinson invokes the original Tea Party. He notes: “It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”
This is more than a rhetorical flourish. Vinson is setting the stage for shredding the constitutionality and reasoning behind the individual mandate: The American Revolution was started in part by outrage against the tea tax. How greater would that reaction be if citizens were also forced by any government not only buy tea but also to purchase a specific kind of tea from specific companies or risk a penalty.
Under Obamacare, not only is a decision not to buy healthcare against the law, so too is the voluntary purchase of a product other than that specified under Obamacare would trigger a penalty.
Stephanie Cutter, Obama’s health care advisor, blogged: “People who make an economic decision to forgo health insurance do not opt out of the healthcare market. As Congress found, every year millions of people without insurance obtain healthcare they cannot pay for, shifting tens of billions of dollars in added cost onto those who have insurance and onto taxpayers.” The White House goes further and argues that because other parts of Obamacare might encourage people to postpone getting insurance until they need to, the individual mandate is “necessary and proper.” Without it, the healthcare market would collapse.
Which leads Vinson to his second argument: The administration’s claim that without the mandate costs and taxes would rise is no better a reason for judicial intervention than the claims of states that Obamacare is forcing them into a lousy financial position. It would be a huge overreach of judicial power to compel people to buy a specific product to rectify a situation created by previous policies. Congress enacted laws requiring hospitals that receive Medicaid dollars to treat all individuals and ask about cost later.
Congress has many options to address the “free-rider” problem just as the states have a range of choices in addressing rising Medicaid costs. (It could impose a healthcare tax on everyone to pay for insurance for the uninsured or bailout states. Or it could change laws to eliminate uncompensated care.)
Hence, Vinson notes: “it should be emphasized that while the individual mandate was clearly ‘necessary and essential’ to the Act as drafted, it is not ‘necessary and essential’ to health care reform in general.” In fact, the mandate and penalties a prescribed actually reward businesses and individuals for dropping coverage and enrolling in Medicaid. That would — in Cutter’s words — shift tens of billions of dollars in added cost onto those who have insurance and onto taxpayers.
If Congress can compel purchase of specific products from only government-approved health plans under the Commerce Clause to deal with financial challenges in the healthcare market created by previous policies or compensate with Obamacare’s imperfections, nothing can stop it from dictating the terms and conditions of other economic decisions that have a fiscal consequence to a particular market.
Vinson has done more than overturn Obamacare. He’s raised the political stakes for Obamacare supporters. Overturning his ruling would force the Supreme Court to “authorize Congress to reach and regulate far beyond the currently established ‘outer limits’ of the Commerce Clause and effectively remove all limits on federal power.” The political response would lead to Obama’s defeat or congressional action eliminating the individual mandate. Either way, it is increasingly unlikely Obamacare will be enacted.
About the Author
Robert M. Goldberg is vice president of the Center for Medicine in the Public Interest and founder of Hands Off My H ealth, a grass roots health care empowerment network. His is new book, Tabloid Medicine: How the Internet is Being Used To Hijack Medical Science For Fear and Profit, was published last month by Kaplan.
Letter to the Editor View all comments (37) | Leave a comment
More Articles by Robert M. Goldberg
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MikeD| 2.1.11 @ 7:53AM
I'm concerned that Mr. Goldberg is using "Cause and Effect" to substantiate his, and our, hopes that this abomination called 'Obamacare' will disappear either through a lawful SCOTUS decision or the voter's reaction to an unlawful, or even unconstitutional decision by the Court.
Remember, this is generally the same court that upheld the Second Amendment by a 5-4 vote! That four liberal justices could ever find that the Second Amendment does not specifically protect the right of the citizen to bear arms is proof that liberalism is truly a mental disorder.
This court is not beyond the same kind of sophistry regarding Obamacare. We are now to the point that the democrats, media, and other assorted lunatics have no fundamental problem with a Supreme Court that has been reduced to just another arm of the democratic party; and, regardless of its' makeup, is expected to do as it is told. The final vote is so preordained that the 4-5 or 5-4 vote can already be predicted with confidence.
There is then, part two. Obama and his fellow thugs have proven time and time again that their demented vision of the United States of America will continue to be constructed regardless of what the courts or the congress says or does. Obama will just find a regulatory solution he can proclaim to us poor peasants through another executive order or an end run around the law. Just how many laws does a president have to break (With a certain glee and arrogance!) before the impeachment process begins? (Answer? As many as he can get away with until the democratic party actually 'gets it' that he will be the last democrat president before the party is cast in its' rightful place on the ash heap of history.)
MikeD| 2.1.11 @ 1:46PM
Barry has already expressed his defiance through one of his minions at the white House by telling the whole country that "...implementation of the healthcare act and process will continue unabated." This sounds to me like CONTEMPT OF COURT. If Richard Nixon had defied a federal judge this way, he'd have been burned in effigy by the lapdogs in the media before congress impeached him.
Actually, this is the second time barry has defied a federal judge and placed himself above the law. He did the same thing through bill richardson with his defiance in his exec. order stopping drilling during the oil spill that barry conveniently managed to let grow to crisis proportions while he dithered, played golf, and 'spent family time' with the "Big Butt in Chief".
If a Republican had done any of this he'd have been tarred and feathered by the media and instantly impeached by any dem majority in
congress. How about it GOP? Do you have the 'spherical gonads' to go after the 'narcissist in chief?
How about it media? Do you have the 'cojones' to do YOUR job, or will you continue to sink into insignificance and unemployment as your audience and circulation slowly disappear?
Barry has, once again, crossed the line. The GOP should DEMAND that all steps toward implementation of 'barrycare' cease and desist immediately! Unless, and until a higher court overturns, or affirms Judge Vinson's ruling, IT IS THE LAW OF THE LAND! Either enforce the law or resign, barry! Remember; contempt of a federal court is a felony and, in the case of POTUS, it IS an impeachable offense.
MTB| 2.1.11 @ 4:51PM
Didn't the administration also ignore a district court judge who told the FCC that they would not implement Net Neutrality, but they went ahead and did it (or are planning to do it) anyway?
Alan Brooks| 2.1.11 @ 8:30AM
I've been wrong all along.
Brian Mc| 2.1.11 @ 11:04AM
I am unsure as to which is more ominous, the final paragraph of this article or your remark, Alan. All three branches of the Federal government must be very careful over the course of the next few months. The pressure cooker is rattling on the stove and the meter is off the scale.
Kishego| 2.1.11 @ 3:00PM
Would those three branches be "the House, the Senate and the White House" Ya gotta love those Bidenisms !
Kishego| 2.1.11 @ 3:01PM
Ooops!! those would be Schumer-isms. Not that good ol' Joe doesn't offer up enough of his own.
Grzmlyk| 2.1.11 @ 12:24PM
Alan, don't be so modest.
You've also been vain, ideologically blinkered, sophomoric, foolish and a preening poseur to boot.
But as good little liberal cog # 934,677,641, I'm sure you dare not stand out among the other 934,677,640 fools.
I mean, what would Bill Maher say?
MikeD| 2.1.11 @ 1:49PM
Mr. Brooks,
I'm not sure which Alan Brooks you are, or what you actually mean; but, regardless, I hope it means the light has gone on in your head so you can see the lies and double standards the left is using to chip away at everything we cherish that has made our country the light of the world.
I choose to give you the benefit of the doubt and welcome your epiphany.
Brian Mc| 2.1.11 @ 2:31PM
If it truly is an epiphany, I welcome Alan to the club...one I joined thirty years ago when I heard Ronald Reagan's Inauguration Address. I felt as if I'd been struck by a bolt of lightning!
MacDaddy| 2.1.11 @ 8:57AM
How deliciously ironic is it that a Reagan-appointed judge quashes Obama-care in the very week that Obama and his PR team fall over themselves trying to cozy up to Reagan's legacy? I thank God for Judge Vinson, and pray he watches his back. Hell hath no fury like Obamites rebuffed. His Honor might find liberal minions crawling into every body cavity and historical archive looking for smearage. I pray he finds the strength to withstand the savagery which no doubt will come.
bill carson| 2.1.11 @ 9:31AM
"Overturning his ruling would force the Supreme Court to "authorize Congress to reach and regulate far beyond the currently established 'outer limits' of the Commerce Clause and effectively remove all limits on federal power."
*****************************************
Ha! Who would think for a moment that the Liberals on the Supreme Court would have the slightest problem with that? The fact is that Obama goes into this deal with four Supreme votes in his pocket. He only has to sweat our Kennedy.
Lois C| 2.1.11 @ 9:37AM
Thank GOD for a sane, constitution respecting judge. The predictable reaction from the White house is to scoff at Judge Vinson dismissing his ruling as "judicial activism?" Are you kidding? In who's crack smoking induced hallucination is this ruling judicial activism? Here we finally have a sane, logical ruling even liberals should be able to comprehend but they will dismiss it and claim it to be radical when it is really the Socialists Obama, Reid and Pelosi who are the radicals seeking to destroy everything that has made America and her people the most successful, productive, free and caring country in the world. The only thing holding America down is the politicians we elect. For some reason we seem to choose the most morally and ethically bankrupt among us to make our laws and guide our country, this I don't understand.
MikeD| 2.1.11 @ 10:02AM
We elect this kind of people for two reasons, although I suspect there are so many it would take forever to examine them.
First, voters can only vote on the information they get about the candidates. With the morally bankrupt lefties in charge of the old media outlets, what makes it out to the masses was tightly controlled by the media. The internet and rise of digital TV has begun to 'level that playing field'.
Second; we have a generally ignorant electorate, not just because of the corrupt media, but also because of the corrupt educational establishment. The teacher's union is completely dedicated to getting as many democrats elected as possible so they can continue to ride the taxpayer's gravytrain. While invoking my usual disclaimer that yes, "...there are some very good teachers, they are outnumbered by the drones and the incompetent"; the average teacher is about as useful as mammaries on a python.
Combine these two factors with the moral bankruptcy of the democratic party that gleefully steals elections through voter fraud, intimidation, and outright vote creation, the future is bleak.
We need to destroy EVERY current votor data base and make everybody re-register to vote using a tamper proof picture ID like a driver's license; and verify every person's identity with address checks and the same kinds of security practices used by credit card companies. Any close election in a state with a democratic governor or secretary of state is automatically won by the dem. Without an honest, legitimate vote count, we are finished. Stalin, one of Franklin Roosevelt's favorite people once said: "It doesn't matter who gets the most votes, but who counts the votes." If anybody doubts that, think of that complete moron al franken who was the beneficiary of a blatant stolen election engineered by Minnesota democrats and their thug friends in Hollywood led by a man who formerly had a modicum of respect, but has been unmasked as just another vote stealing liberal thug: Ron Howard. Even the loveable "Opie" has turned into a miserable vote thief.
Brian Mc| 2.1.11 @ 11:10AM
"Mammaries on a python"...talk about a perfect analogy of the state of the mindset inherent with Democrats, liberals, socialists ad nauseum. I will draw on that mental picture quite often in the future, MikeD; thanks a ton! And the python said, "Come on over and have a taste."
LuvntheBIGsites| 2.1.11 @ 9:56AM
Anyone out there in Amspec land know if the speed to which this decision will make it to the SCOTUS can be controlled? Right around the Hawkeye Caulkeye would be fine with me… (or the TV debates Obama will refuse to attend). Imagine having to defend “Your Signature Legislation” a 2500 page boondoggle that the house has Repealed, the Dem majority senate is hiding from, the SCOTUS has rejected and the American people hate. It’s gonna suck to be you Mr. President. Even if NBC lets you set up the teleprompter for the debates there is nothing that anyone can write to save from that one big boy… And I’m looking forward watching you squirm.
—luvntheBIGsites
PJ| 2.1.11 @ 10:41AM
"Anyone out there in Amspec land know if the speed to which this decision will make it to the SCOTUS can be controlled?"
I think your answer is in this video:http://tv.nationalreview.com/uncommonknowledge/post/?q=ODg0ODM1ZWEwY2U5MGIzYjZlYjA1MDBiYzhkNmU1ZGQ=.
scythe| 2.1.11 @ 10:19AM
Nevertheless, without a moment to lose our Pharaonic President told reporters that this decision will not obstruct his implementation of the bill. In other words, he plans to defy the judge. Got that folks? Should that occur let's have another massive protest in DC and bring signs demanding he be impeached. He is out of control and more suited to lead a banana republic. This will be a constitutional crisis should he decide to give the Constitution and the judge's decision the middle finger as he is wont to do in everything . And I hope the rest of the us who understand the parameters of the revolution that we are resisting push back. Big time.
Stan Redmond| 2.1.11 @ 10:28AM
"Can we still keep all the taxes and power?" ---Obama's brain
Paevo| 2.1.11 @ 11:40AM
What if Justice Kennedy is replaced before the case is heard by the SCOTUS?... My bete noir...
Lit Parapluie | 2.1.11 @ 12:32PM
The White House, Democrats, and MoveOn liberals are spreading health care sob stories to sell a government takeover. But there’s one health care policy nightmare you won’t hear the Obamas hyping. It’s a tale of poor, minority patient-dumping in Chicago — with First Lady Michelle Obama’s fingerprints all over it.
Wayne | 2.1.11 @ 12:56PM
Maybe we can't assume either way. For all we know one or more justices may die before it goes before the court. In fact the court is not even required to take it up.
George| 2.1.11 @ 1:02PM
I'm a few pounds overweight. I wonder if sometime in the future the federal government can force fatties like me -- and everyone else -- to join a government approved health club.
Al Adab| 2.1.11 @ 1:43PM
George:
That is absolutely the goal. In order to maintain your required government coverage you will be forced to participate in any and all "wellness" programs they so designate. Behavior modification, diet, and weight control being just the tip of the iceberg.
Oldefarte| 2.1.11 @ 1:12PM
I'm a skeptic concerning the eventual outcome of these legal actions, as lawyers/judges/the legal system is traditionally liberalistic and exclusively of the Democrat Party. However, these fantastic decisions cannot hurt psychologically. My belief is that the one and only solution for this montrosity [and for all other governmental mandates] will have to come from the will of the people, and through legislation and elections. November of 2012 cannot get here soon enough for some of us!!!!!!!!!!!!!!!!!!!!!!!
Tex Expatriate| 2.1.11 @ 1:38PM
I sincerely hope it is unlikely that Obamacare will ever be enacted, but we can never underestimate the dishonesty and chicanery of Socialists and other types of statist autocrats.
Cato| 2.1.11 @ 1:49PM
Nullification of Obamacare by the legislatures of the several states will ensure that we do not have to rely on the whims, emanations, and penumbras of SCOTUS.
Al Adab| 2.1.11 @ 2:10PM
The 27 states currently suing represent a majority of the US Senate. Make them vote the right way. If the number reaches 33 states, they can adopt a Constitutional amendment without Congressional action. A little coordinated effort here is what is required.
Consertive View| 2.1.11 @ 7:42PM
Adad, I believe you are absolutely right, and there in lies the reason that SCOTUS may well reject Obama Care out of hand. The Court may believe that the anger of the voters is so great that Constitutional steps may be taken to limit its' power. I suspect that few things would frighten the Court more. The more that such an idea is discussed the more frightened of just that outcome they may become.
The failure to reject Obama Care might lead to frightful unintended results for the Court. These results might well fall out side their power of control. Indeed, they might well fall outside the power of Obama to control. For this reason, if for no other, I am behind you completely. We need to discuss a Constitutional amendment to limit the power of the Court. You are absolutely right, a little coordinated effort here is what is required.
Jake| 2.1.11 @ 8:53PM
Lawyers write briefs. Judges write opinions. If Mr. Goldberg, who is not a lawyer, is wrong about such an elementary fact about courts, why should any reader trust his constitutional law analysis?
BackToBasics| 2.2.11 @ 12:26AM
If he has ruled it unconstitutional, is there a move to stop it's implementation. I've read that the judge did not give a green light to it's continued implmentation during the ongoing judicial processes such as an appeal or the Senate asking for a stay on the ruling until furhter litigation determines the final outcome.
This is interesting to see in light of the fact that liberals have gotten so much policy implemented over the last 75 or even more years (FDR packed court) not through the legislative process but through what amounts to judicial fiat.
And yet now, after this judge rules, it looks as though Oabm and the Senate are going to proceed in implementing this as though nothing happened.
So, the mighty rule of lawthrough judicial fiat that gave us nationwide abortion, forced desegregation, hiring quotas and so many other unconstitutionla rulings is not not taken seriously by the left. They may have to deal with this through the judicial process but they will do so kicking and screaming all the way and they will also ignore rulings against them as much as they can.
FREE tea| 2.2.11 @ 12:50AM
At least as troubling as industry-scripted 'Obama-care' ---is this ongoing, stealth-eugenics forced
injections issue.
From the same 'caring' folks who managed to
denounce the idea of universal testing for HIV
during the heyday of AIDS in the 80's as 'fascist'--to the
same crowd who've, through crafty funding and
'social engineering' (covert brainwashing via
media and 'culture creation') made the unthinkable (as in extermination of one's unborn,
elderly and unfit) ----''reasonable' ---this sudden
'concern' with viruses?
NOW, CATCH THIS:
Informed, scholarly opinion continues to gather
on the subject of not just the TRUE origins of
some famous viruses. It seems the 'arts' of biological warfare and eugenics is FAR older than suspected.
NOW looking like even the ultra deadly Spanish Flu of 1917 which took 40 MILLION worldwide
has been traced to the boys in the trenches
---who'd been injected 'for smallpox'.
Far older indeed...
"Understand, the Globalists, in the upper reaches,
are inbred, interbred, intergenerational, global
psychopaths with
NO morality ------ABSOLUTELY NONE
---beyond the implementation of their agenda for TOTAL world control and 'population reduction'."
-Alan Watt
Cuttin Through the Matrix
(online NOW)
---Begining to understand---
Reebok | 8.11.11 @ 4:18AM
is good
العاب بنات | 4.11.12 @ 4:13PM
is good
thank you