A Different Take On The Constitutionality Of ObamaCare

The Daily Caller posted an article today about changes made to ObamaCare by Congress. The article reminds us that in 2017, the Republican-majority Congress did not have the votes to repeal the ACA, but did set the individual mandate penalty at zero. They didn’t repeal it, but they took the teeth out of it.

The article then reminds of the Supreme Court’s decision on ObamaCare:

In 2012, the five conservative justices on the United States Supreme Court (including Chief justice John Roberts) held that key portions of the Affordable Care Act (ACA) exceeded Congress’s constitutional authority under the Commerce Clause. But, Chief Justice Roberts then joined the four liberal justices on the Court in upholding the ACA as a tax under Congress’s taxing power because it generated revenue for the federal government.

The question then becomes, “If ObamaCare is no longer generating revenue, is it still a tax?’ If it is no longer a tax, does it still fall under the Commerce Clause?”

The article states:

A recent op-ed at The Federalist claims that striking down the ACA would be “judicial activism.” The article doesn’t defend the ACA as constitutional, but argues that conservatives shouldn’t ask “unelected judges to do what elected members of Congress took great pains to avoid.”

Such a broad view of “judicial activism” would render virtually any judicial review out of bounds. More importantly, it is contrary to the very system of checks and balances set up by the Founders in the Constitution. There is no Constitutional duty to persuade a majority of Congress to stop violating the Constitution—that’s what makes it a written constitution in the first place.

The article concludes:

And there is the rub. Judicial activism, rightly understood, is when a court tries to exercise the legislative function — i.e., when a court writes laws instead of saying what the law is. But asking courts to carve out the unconstitutional provisions from laws is exactly that. Advocating for severability asks the judicial branch to judge the law Congress should have written, not the one it did. A more restrained approach would be to strike down the whole law and let Congress decide whether it wants to pass the law again without the unconstitutional provisions included.

An old saying goes something like: “When you mix a cup of sewage in a barrel of wine, you end up with a barrel of sewage and have to throw the whole thing out.” To extend the metaphor, courts shouldn’t be in the business of sifting through a law to pick the sewage out of the wine, they should throw the whole thing out. Striking down unconstitutional laws is not judicial activism, and it is well within the role of the judiciary to strike the entire ACA as such.

It is definitely time to get rid of the barrel of sewage!

Can The Republicans Stop Fighting Themselves Long Enough To Pass A Tax Bill?

One American News posted an article today about Senate plans to pass a tax bill. The Senate is expected to vote on their version of the tax bill next week. Speculation is that Mitch McConnell will bring the bill to the floor on Thursday.

The article reports:

The senate plan includes a repeal of the Obamacare individual mandate, which penalizes Americans for not buying into the failed health care system.

Only a handful of republican senators have expressed concerns with the bill, but none have indicated they will not vote in favor of the plan.

If the bill passes, the Senate and the House will have to hammer out the final details before sending the finalized legislation to President Trump.

I can almost guarantee it will not be a perfect bill, but hopefully it will provide the tax relief that the middle class and businesses need.

Another Reason Your Votes Matter

On Friday, The Federalist posted an article about ObamaCare explaining where we are and where President Obama would like to go next in American healthcare. It really isn’t good news.

The article reports:

President Obama recently published an overview of the results of ObamaCare in the Journal of the American Medical Association.

It’s a pretty extraordinary article, because in important ways it acknowledges that ObamaCare has basically failed—and it lays the cards on the table for what we always knew was going to be his next step.

…Forcing insurers to cover people who are already sick and to charge them the same rates as healthy people has jacked up insurance premiums for everyone else. So because the law didn’t make insurance affordable, Congress has to make it affordable by heavily subsidizing it with even more of the taxpayers’ money.

Obama also somewhat vaguely acknowledges the problem of rising deductibles. One way of staunching the rise in premiums has been to offer plans with very high deductibles—the amount a person has to pay upfront before his insurance kicks in to cover the rest. This keeps the premiums affordable at the cost of making the actual care less affordable by whacking you with huge payments if you actually get sick. Last year, the New York Times acknowledged that under ObamaCare, “sky-high deductibles…are leaving some newly insured feeling nearly as vulnerable as they were before they had coverage…. ‘We have insurance, but can’t afford to use it.’”

Obviously ObamaCare is not working in a way that is helpful to the American people. So what happens next? Don’t say you weren’t warned–you were.

The article explains the next step:

Like I said, this was predictable and predicted from the very beginning, but now it’s all out in the open. ObamaCare was always just an exercise in planned obsolescence, cobbling together a system nobody really thought was going to work, just so they could exploit its failures to push for the socialized medicine they really wanted all along. It’s telling that in this article, Obama boasts that the Affordable Care Act has increased the number of people who are insured, but his own data shows that the biggest driver of that is an expansion of Medicaid, which is not insurance but welfare—the system he wants for everyone.

As I noted back in 2009, a decade-long exercise in deliberately wrecking private health insurance is the most callous and destructive way to pursue that goal.

If that surprises you, look at Venezuela. When has the Left ever shied away from smashing everything to pieces in pursuit of government power? So we shouldn’t expect anything different here.

If we are going to stop this runaway train, and it is not assured that we can, the only possible solution is to elect people in November who do not support socialized medicine. How do you find this people? You look at the voting records of anyone who was in Congress when ObamaCare was passed. You listen to the statements of the candidates.

I have one final note. ObamaCare was passed through a budget reconciliation process rather than as a standard bill. This was because that type of bill could not be filibustered in the Senate. No Republicans voted for HB3590, the predecessor to ObamaCare, or the reconciliation. Senator Scott Brown of Massachusetts (who was voted in after Ted Kennedy’s death) never got a chance to vote on ObamaCare because the Attorney General of Massachusetts delayed the certification of the election until after any Senate vote would be taken. The shenanigans involved in passing ObamaCare in the first place were disgraceful. It is also disgraceful that the Republican House of Representatives has not made a serious effort to defund ObamaCare. We need to elect people who will end ObamaCare and bring the free market into healthcare. Then America will have a strong healthcare system that serves all Americans.

Some Thoughts On The Supreme Court Debate On The Affordable Care Act This Week

Jennifer Rubin at the Washington Post posted an article yesterday summing up her feelings about the Supreme Court debate this week.

Ms. Rubin wrote that Obamcare suffered a severability trainwreck at the Supreme Court. The argument for striking down the entire law if the individual mandate is found unconstitutional is that without the individual mandate to herd customers to insurance companies and provide financial support for the other provisions of the law, the goal of universal access would be thwarted. The individual mandate is the only way that Obamacare can provide insurance coverage for everyone. Because Obamacare goes against basic business principles (as well as the U. S. Constitution), it will not work.

The article reports:

It was that kind of day for the government. The argument today was another instance in which the challengers rolled up their sleeves, got into the text of the statute and made a convincing case. The government never sufficiently spelled out how the mandate could be severed from the rest of the bill without upsetting the intricate system of subsidies and the goal of expanded access. In hiding the ball from the public by virtue of an overly intricate fog of misdirection, and in disguising the essence of the scheme — healthy, young people who might not otherwise want insurance are compelled to buy it to ameliorate the costs of others — Congress sent the Supreme Court a legal knot that will be hard to undo.

Part of the arguments for Obamacare come from people who do not understand how insurance works. There does need to be some protection for people who develop serious medical problems so that their insurance companies cannot abandon them–however, we can use a fly swatter instead of a nuclear weapon to deal with this issue and still get the job done.

If the free market were allowed to operate in health insurance, we would be able to find our way out of any current insurance problems without doing things that will not work and are unconstitutional. A few basic suggestions–tort reform, portability of health insurance from one job to another, tax breaks to help people afford health insurance, selling health insurance across state lines. These ideas are all constitutional and might actually help solve the problem of the high cost of health insurance.

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Yesterday At The Supreme Court

Paul Clement was the lawyer arguing at the Supreme Court on behalf of Florida and the other states who are challenging Obamacare.

I have listened to a large part of his argument against the idea that the Commerce Clause allows the government to force people into commerce in order the regulate them rather than to regulate the people who are already engaging in commerce. I believe that Obamacare as it is written is not constitutional, but we shall see what the court decides.

The discussion I have heard is that if Obamacare is found constitutional, the idea that our government is a government of enumerated limited powers is over. If the individual mandate part of Obamacare is found constitutional, be ready to have the government require you to join a gym, eat certain foods, purchase a car, etc.

We will have to wait until June to know what the outcome of this case will be, but hopefully Obamacare will die with the individual mandate.

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