Last month, having watched in frustration as his Solicitor General got his clock cleaned during the Supreme Court's Obamacare hearings, the President made matters worse by publicly braying about how "unprecedented" it would be for an "unelected group of people" to overturn a law passed by a "strong majority" in Congress. This idiotic assertion provoked a tsunami of scorn from constitutional experts of all stripes, and angered the judges of the Fifth Circuit Court of Appeals so much that they humiliated the lawyers of the Justice Department by giving them a homework assignment on judicial review. If, however, you thought that embarrassing episode was enough to stop the Obama administration from trying to bully the Court, you were mistaken.
In a new attempt to influence the justices as they deliberate over the ultimate fate of Obamacare, the White House has told them that striking down the "reform" law would wreck the Medicare program: "Medicare's payment system… could freeze if President Barack Obama's health care law is summarily overturned, the administration quietly informed the courts." This bizarre claim is, according to former CMS administrator Thomas A. Scully, nonsense: "If you look at the way the law was financed, it was a combination of higher taxes and lower Medicare payments. That's what you would be rolling back." In other words, by striking down the law, the Court would forestall $500 billion in Medicare cuts called for by Obamacare as well as deep slashes in Medicare Advantage.
The claim that Medicare payments might stop if the Court ignores the administration's intimidation tactics is much like a threat the President made during the 2011 battle over the debt ceiling. At that time, Obama averred that Social Security checks might not be mailed if the GOP refused to roll over: "I cannot guarantee that those checks will go out … there may simply not be the money in the coffers to do it." That was a lie, of course, as is the threat that Medicare payments might halt. But that hasn't stopped Donald Berwick, the recess-appointed CMS head who resigned when he became an election year embarrassment for Obama, from repeating the whopper: "Medicare cannot turn on a dime… I would not be surprised if there are delays and problems with payment flow."
By reiterating the preposterous claim that Medicare payments might be delayed if Obamacare is struck down, Berwick is participating in a predictable election year strategy that goes beyond meddling with the Court. The threat is also meant to frighten seniors. Like the perennial Democrat claim that the GOP is secretly planning to destroy Social Security, this strategy seeks to exploit the insecurities of the elderly. Obama and his creatures want the nation's seniors to be so afraid of losing their retirement benefits and medical coverage that they will go to the polls and vote Democrat notwithstanding the President's pathetic record and the failure of his party's congressional leaders to produce a single piece of useful legislation since they returned to power in 2007.
Ironically, it is the prospect that the Court might preserve Obamacare that should frighten seniors. The health care "reform" law contains two primary features that should worry all Medicare beneficiaries. First, it will raid Medicare's coffers to the tune of $500 billion and use that money to pay for the health care of young, healthy Americans. Many of the 30 million people whom Obamacare will allegedly lift from the ranks of the uninsured will receive coverage subsidized by money siphoned from Medicare. Much of this money will come from cuts in the Medicare Advantage program, which means that the benefits now enjoyed by 25 percent of Medicare beneficiaries will be dramatically reduced.
The second, and even scarier, prospect that seniors face if the Supremes allow Obamacare to stand will involve the Independent Payment Advisory Board (IPAB). This committee of fifteen unelected apparatchiks will begin rationing care to the elderly shortly after Obama's reelection. IPAB's mission is closely modeled on that of Britain's National Institute for Health and Clinical Excellence (NICE). NICE has been rationing care to elderly Brits for many years, and it routinely denies British patients access to drugs and treatment regimens taken for granted in most developed countries. In fact, it recently declined to approve the first new drug developed in half a century for the treatment of lupus because it was too expensive.
And yet, in a typically Orwellian submission, the Obama administration has told the Court that overturning Obamacare will create "extraordinary disruption" to the Medicare program. And it would no doubt be inconvenient for the government bureaucrats at the Centers for Medicare and Medicaid Services. As tragic as it would be for these apparatchiks to earn their paychecks for once, there is no honest basis for the claim that it would somehow freeze Medicare payments. As the Washington Post points out, "Even if the law were completely overturned, the government still would have authority under previous legislation to pay hospitals, doctors, insurance plans, nursing homes and other providers."
The people who run the Obama administration understand this, of course, but they are evidently betting that the justices of the Supreme Court do not. This is the kind of forlorn hope to which desperate people cling. The palpable fear at the White House that the law may be struck down is causing them to do stupid things. A month ago, the President tried to intimidate the Court, and succeeded only in making a fool of himself. Now his minions have produced this latest lame attempt to influence the Court. As objective as the justices try to be, they must by now be growing weary of these amateurish attempts to meddle in their deliberations. The justices expect the executive branch of our government to treat them with the respect due a coequal branch. This deference has been glaringly absent since Obama's 2010 State of the Union address.
During that speech, you will recall, the President contemptuously rebuked them before Congress and the American people for possessing the temerity to rule in favor of the First Amendment in their Citizens United decision. Such presumption, combined with the pettifoggery to which the Obama Justice Department has subjected them in the Obamacare case, is unlikely to have endeared the administration to the Court. Indeed, it has probably angered more than one of the justices. This is not the kind of mood you want them in when they are considering the constitutionality of your most "significant domestic achievement."
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