The Healthcare Law and you – Demystified
A source forwards this copy of a 20-page Obama Administration PowerPoint presentation, circulated by the Department of Health and Human Services to allies. The aim: Making the unpopular law more politically saleable. Read the whole thing here.
ObamaCare and the Limits of Government
When asked if the health law was constitutional, then-Speaker Nancy Pelosi sneered, ‘Are you serious?’ Now the Supreme Court has decided it’s a worthy question.
By David B. Rivkin Jr. & Lee A. Casey
The Supreme Court has agreed to decide whether ObamaCare is constitutional, granting certiorari in a case brought by 26 states shortly after that law was enacted in March of last year. In so doing, it will be ruling upon the very nature of our federal union.
The Constitution limits federal power by granting Congress authority in certain defined areas, such as the regulation of interstate and foreign commerce. Those powers not specifically vested in the federal government by the Constitution or, as stated in the 10th Amendment, “prohibited by it to the States, are reserved to the states respectively, or to the people.” The court will now determine whether those words still have meaning.
The President’s health-care law faces a Constitutional reckoning, Daniel Henninger discusses on Opinion Journal.
As we argued two years ago in these pages, the Patient Protection and Affordable Health Care Act (aka ObamaCare) is unconstitutional. First and foremost, the law requires virtually every American to have health insurance. Congress purported to impose this unprecedented “individual mandate” pursuant to its constitutional power to regulate interstate commerce, but the requirement is not limited to those who engage in any particular commercial or economic activity (or any activity at all). Rather, the mandate applies to everyone lawfully present in the United States who does not fall within one of the law’s narrow exclusions.
Under our Constitution’s system of dual sovereignty, only states have the authority to impose health and safety regulations on individuals simply because they are present. The Supreme Court has ruled many times that the Constitution denies to the federal government this type of “general police power.” Federal legislation must be grounded in one of the “enumerated” powers the Constitution grants to Congress—such as the power to regulate interstate commerce. Although the Supreme Court has interpreted that power broadly (especially since the 1940s), it has consistently held that the Commerce Clause has limits.
If Congress can require individuals to buy or otherwise obtain and maintain health insurance simply because they may be said to impact commerce by their very existence, without regard to any particular activity in which they have chosen to engage, then there is no limit on federal power. For example, if Congress can require you to buy health insurance because your lack of insurance may, at some point in the future, impose costs on the wider economy, then on the same theory it can require the purchase (or sale) of virtually any good or service, since the failure to have or use the relevant product can always be said to have some economic impact.
Both the trial judge and Court of Appeals in Florida et al. v. U.S. Department of Health and Human Services duly struck down the mandate as outside the scope of Congress’s legitimate authority. It is highly unlikely that the Supreme Court will overturn that decision. To do so would require it to junk nearly 200 years of its own jurisprudence and create a federal government of unprecedented and uncontrolled power.
There are, however, a number of other critical questions the Supreme Court will now resolve. In addition to imposing the individual mandate, ObamaCare revolutionizes the Medicaid program. For more than 40 years, Medicaid has been a cooperative federal/state program to fund medical care for the poor. The states also contribute funds and have enjoyed wide discretion in designing and implementing their own programs. Now, as a means of ensuring the universal coverage ObamaCare set out to achieve, Medicaid has been transformed into a massive new health-insurance program for many in the middle class. The states must accept new, detailed federal requirements or lose all federal Medicaid funding—leaving their neediest citizens without any safety net.
Although there is always an element of choice in accepting federal money, the Supreme Court has clearly stated that if federal funding conditions and threats become coercive, they also violate the Constitution’s fundamental federalism principles. Here, both the trial and appellate judges acknowledged this rule—based on a 1987 case called South Dakota v. Dole—but felt constrained to uphold ObamaCare’s Medicaid provisions because they found no direct and controlling Supreme Court precedent on the point. By accepting certiorari on this question, the Supreme Court has signaled its willingness to determine where that all-important line of federal versus state coercion may be, and whether ObamaCare has crossed it.
The Supreme Court will also consider the question of “severability”—whether the entire statute must be struck down because one or two of its provisions are unconstitutional. The test here is whether Congress would have still enacted the law without the unconstitutional provisions. As the trial judge correctly concluded, there is little question that without the individual mandate Congress would not have enacted ObamaCare’s other provisions, many of which make little sense without that critical requirement.
Finally, the Supreme Court has also agreed to consider one of the highly technical arguments raised in the case, whether the federal Anti-Injunction Act (AIA) prohibits a challenge to the individual mandate before the requirement actually takes effect in 2014. This issue has always been a red herring, arising because the government tried to argue that the individual mandate can be justified under Congress’s power to tax, even if it is insupportable under the power to regulate interstate commerce.
Virtually every lower court to consider ObamaCare—both those that have struck down the law as unconstitutional and those that have upheld it—has agreed that the AIA does not apply here. There is every reason to believe that the Supreme Court will do the same. The AIA was designed to protect federal tax-collection activities, generally requiring that a tax be paid before its legality can be challenged in court. The mandate, of course, is not a tax—but an affirmative regulatory requirement. It is enforced by a penalty. The only connection with the federal tax apparatus is that the penalty will be collected by the Internal Revenue Service from tax refunds otherwise due to violators, and its application here would only postpone challenges to the individual mandate to 2014.
Overall, the Supreme Court’s agreement to review ObamaCare’s constitutionality probably sounds that law’s death knell. When asked about these constitutional issues before the law was enacted, then-House Speaker Nancy Pelosi simply sneered, “Are you serious?” At this point it is safe to say, yes we are.
Messrs. Rivkin and Casey are lawyers who served in the Justice Department during the Reagan and George H.W. Bush administrations. They represented the 26 states in their challenge to ObamaCare before the trial and appellate courts.
Think you’ve heard the last word on ObamaCare?
Ed Meese and David Rivkin to lead ObamaCare panel at Heritage Foundation
Published October 4, 2011
By Staff
(OfficialWire)
Former White House lawyer and leading conservative commentator, David Rivkin, was the first to outline the constitutional challenge to ObamaCare that will soon go before the Supreme Court.
ObamaCare, officially called the Patient Protection and Affordable Care Act, marks the first time in history that the federal government has required every person to purchase a commercial product or service.
As part of its “Preserve the Constitution” series, the Heritage Foundation is presenting an expert panel, headlined by David Rivkin, to discuss the case on Nov. 3 at Lehrman Auditorium in D.C. from noon to 1 p.m.
Other speakers include: Todd Gaziano, director of the Center for Legal & Judicial Studies; Michael Carvin, partner at Jones Day and lawyer for the National Federation of Independent Business; and Andrew Grossman, a visiting fellow and moderator with the Heritage Foundation.
The panel will be hosted by Edwin Meese III, Ronald Reagan Distinguished Fellow in Public Policy and Chairman of the Center for Legal and Judicial Studies.
Among the questions that will be discussed: Is there any limit to what Congress can require? Does the Commerce Clause, which some argue has already been stretched beyond recognition, grant Congress the power to force citizens to purchase broccoli? What do the text of the Constitution and Supreme Court precedent suggest? When is the Supreme Court likely to review the case? Will the Supreme Court strike down the individual mandate, but leave the rest of ObamaCare standing?
David Rivkin is highly regarded for his award-winning legal writing in major publications such as The Wall Street Journal. Most recently, he was awarded the prestigious 2011 Burton Award for Legal Achievement for his writing in The Washington Post.
For more information on how to attend or watch online, visit: http://www.heritage.org/Events/2011/11/Is-ObamaCare-Constitutional
David Rivkin’s ObamaCare articles, such as The Wall Street Journal’s “Is government health care unconstitutional?”, and other writings can be found at www.DavidRivkin.com.
Source: http://officialwire.com/main.php?action=posted_news&rid=254247
Contact
The Hardwicke Group
Jason Yu
Tel: 8883647771
Website / Twitter / Facebook
MEDIA CONTACT
David Explains 11th Circuit Ruling: Video & Transcript from Wall Street Journal
Host: Wow, right in the middle of the presidential primaries. Should be exciting.
From The Wall Street Journal
Opinion Journal: “Obama v. the Constitution”
August 15, 2011
Host: My next guest here is David Rivkin. David is joining us to talk about the 11th Circuit’s decision last week overturning the individual mandate in the Obama healthcare law . . . I should point out that David and his colleague Lee Casey argued this case at a lower court level . . . so what is the significance of this decision?
David Rivkin: Well, it’s the first time the Court of Appeals has done it, point number one. Point number two, you have a bipartisan panel, I hate to engage in these types of observations, but it’s very important that you had a Republican judge and a Democrat nominee, if you will, come together. But most importantly to me, it is a meticulously crafted opinion. It’s long, 207 pages, and it debunks every single argument the government has made. And it has done it in a very measured, low-key fashion.
In my opinion, it sets it up perfectly for the Supreme Court review, and it will be the most influential Circuit Court opinion to set the stage, if you will, for the next phase.
Host: What is the key reason they gave for finding this individual mandate unconstitutional?
Rivkin: Interesting, because we’re ending up at this phase exactly where we started from the beginning. The argument is very simple. There is no meaningful, judicially enforceable limiting principle that attaches to this exercise of Congressional power.
If government can require you to spend your money, and the court emphasizes by the way, spending your money to purchase a product from another private party.
If the government can do that, the totality of your disposable income after taxes can be commanded by the government. That is a classical exercise of police power. Not a very good exercise policy-wise, but in terms of its legal pedigree, it’s what you call general police power; impacting people because they exist.
In our constitutional system, police power is vested in the states. Federal government is a government of limited, enumerated powers. And the court basically says, quite correctly, that if the government can do this here, it can do a variety of other mandates. State sovereignty is gone. But most importantly, individual liberty suffers.
Host: There was a line in the decision that jumped out at me, it’s really quite graphic, they said that never before in the history of the country, not in World War II, not during the Cold War, not during the depths of any recession, has the government ever decided that it is required to force people to take an action like this. Why now? Why does the Obama administration feel that it is possible to get this through the courts right now?
Rivkin: Dan, that’s an excellent point. By the way, its not just a rhetorical point, because there’s Supreme Court precedent that stands for the proposition that 200 plus years in a Republic, if a government has not used a particular power in a particular way, that is very significant. It doesn’t finish analysis, but it is very significant.
Their point is, by the way, not only was it never used, people were not forced to buy bonds, people were not forced to buy fuel-efficient cars. But the entirety of our exercise of governmental power in the commerce clause area is always necessarily incomplete and is always rooted in some activity, in some product.
My favorite example: They say look at the flood insurance policy, which is a flop. Most Americans don’t buy it. Why? It’s not mandated that they buy it. Instead the way the statute works, with regard to flood insurance, if you’re going to get a loan from a federally chartered bank, a federally insured bank . . . So all the previous exercise of governmental power is inherently spotty, because they’re pivoting off some activity, some product, some channel of commerce.
Host: But this is not just any activity. The administration’s lawyers, and many liberal academics, argue that healthcare is inherently different. They are going to argue before the Supreme Court when the case gets there, that health care is a special case.
Rivkin: And I believe it will fail. And the court does a marvelous job in looking at the government’s so-called ‘five factors’ . . . First of all, it’s not true. You can make the same observations: Inevitability of consumption. Are you and I not inevitably consuming food and some hydration? Housing. But more important, there’s no constitutional significance.
These have to be meaningful, judicially enforceable factors.
It’s a very important point: What liberals are really saying here, the difference in a good mandate and a bad mandate is to be done more or less by the political branches.
In effect it takes the judiciary out of the loop. And that is fundamentally inconsistent with our constitutional architecture.
Host: Well, people think of the judiciary as protecting individual liberty. What is the role of individual liberty at the center of this case and in terms of their argument?
Rivkin: Individual liberty, and the court makes it very clear, is at the heart of this case. The best way, the primary way of protecting individual liberty in our system is through diffusion of power. You do it horizontally among the three branches of the federal government, and vertically between the states and the federal government. The Bill of Rights, as important as it is, is a secondary line of defense.
If a federal government is able to completely destroy state sovereignty by exercising general police power, than individual liberty would greatly suffer. That is something that animates this opinion.
I think the problem with liberals is they don’t understand how the separation of powers relates to individual liberty. They think about individual liberty exclusively in terms of the Bill of Rights, and even then, for a lot of them, it’s about the rights of criminal defendants. And as important as that set of rights is, that is not the totality of individual liberty that the Constitution meant to protect.
Host: David, you’ve argued this case once, and its transfixed the country in many ways. What do you think the prospects are, or the schedule going forward, for when it hits the Supreme Court–Is this going to be decided before the presidential election next year?
Rivkin: Very much so. We now have a split between the two circuits. The Sixth Circuit ruled one way, the 11th Circuit ruled another way on the individual mandate. The Fourth Circuit is going to rule soon. This case would go to the Supreme Court during the coming term, I believe it would be briefed in January-February, with oral argument coming up in March. And my prediction is the decision would come out the last week in June, right before the Court goes to recess. So, it will be very close to elections.
By the way, that’s not something that the Supreme Court would ordinarily enjoy. But there’s no other choice. There’s no way to postpone it. The costs are huge. Billions of dollars are being spent by the states and individuals and businesses. It’s very important to get it resolved.
Cost of challenging ObamaCare in court: $300
South Dakota AG Marty Jackley
South Dakota Attorney General Marty Jackley budgeted $25,000 for the state’s part in the multi-state lawsuit against ObamaCare. To date, Jackley says, the state has spent a mere $300. An itemization of expenses is not currently available.
South Dakota has spent even less money than Virginia, where Attorney General Ken Cuccinelli has said the only incurred cost of his lawsuit has been a $350 court filing fee.
Source: The Argus Leader
Another ObamaCare lawsuit dismissed
Missouri Lt. Gov. Peter Kinder
U.S. District Judge Rodney W. Sippel yesterday dismissed Missouri Lieutenant Governor Peter Kinder’s lawsuit challenging ObamaCare. Sippel ruled that the plaintiffs (individual citizens rather than the state of Missouri as a whole) lacked standing and that their claims were not ripe for judicial review.
Kinder, a Republican, filed the suit last July. In his complaint, he alleged that the Affordable Care Act violates the First, Fifth, 10th, and 14th Amendments, the Commerce Clause, and the Due Process Clause.
(Source: STLtoday.com)
Kagan refuses to recuse herself
Stacey Singer of the Palm Beach Post correctly points out that yesterday’s order issued by the Supreme Court not to expedite the Virginia ObamaCare lawsuit was “as significant for what it did not say as for what it did.”
The court’s order simply stated “The petition for a writ of certiorari before judgment is denied.” Reading between the lines, the order implies that all nine Supreme Court Justices will hear the case.
Associate Supreme Court Justice Elena Kagan
Many had called — and still call — for Justice Elena Kagan to recuse herself. Until May 17, 2010, Kagan served as United States Solicitor General, whose primary role (as stated on the Office of the Solicitor General website) is to “supervise and conduct government litigation in the United States Supreme Court. Virtually all such litigation is channeled through the Office of the Solicitor General and is actively conducted by the Office.” Because of her work as Solicitor General, Kagan has recused herself from 11 cases, but she will not do so from challenges to ObamaCare. She should, for two reasons.
According to federal law (28 U.S.C. § 455), “Any justice, judge, or magistrate judge of the United States shall disqualify himself… [if] he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” We know from documents obtained through CNS News’ FOIA request that the Office of the Solicitor General (OSG) had been preparing for legal challenges to ObamaCare in January 2010, two months before Obama signed the Affordable Care Act into law. There is no way she did not serve as “counsel” or “advisor” concerning the constitutionality of ObamaCare.
28 U.S.C. § 455 also declares that a Kagan must recuse herself because she has expressed “a personal bias or prejudice” regarding ObamaCare’s constitutionality. At her Senate hearings, Kagan revealed that she believes the Commerce Clause is almost infinitely elastic: it can be “applied to anything that would substantially affect interstate commerce.”
The Commerce Clause lies at the heart of the constitutional challenge to ObamaCare. The government defends its right to impose the individual mandate (that everyone must buy health insurance) by citing the Commerce Clause, which states that the federal government can govern interstate commerce.
The essence of 28 U.S.C. § 455 is a judge must recuse him- or herself if that judge’s “impartiality might reasonably be questioned.” Kagan’s impartiality has been reasonably (and thoroughly) questioned, and yet she remains.
(Sources: The Palm Beach Post and The Wall Street Journal)
SCOTUS denies expedited review of Cuccinelli’s ObamaCare case
The Supreme Court this morning announced that it will not expedite Virginia Attorney General Ken Cuccinelli’s ObamaCare lawsuit.
Virginia AG Ken Cuccinelli
The court’s rejection was entirely expected. In a statement released this morning, Cuccinelli admitted that “[t]he Supreme Court rarely expedites cases under its Rule 11. Expediting our case would have been the exception and so, although disappointing, this is not surprising.”
In his petition to the court, Cuccinelli wrote that “[g]iven the importance of the issues at stake to the States and to the economy as a whole, this Court should grant certiorari to resolve a matter of imperative public importance.”
Doug Kendall of the left-leaning Constitutional Accountability Center mocked the lawsuit and its supporters. “Today’s entirely predictable ruling should be the first of many that denies Supreme Court review,” wrote Kendall. “Proponents of this lawsuit have tried to frame it as a hugely important constitutional challenge steamrolling to the Supreme Court. It is, in fact, a nothingburger.”
The case will proceed as scheduled to the 4th Circuit Court of Appeals in Richmond, Virginia, where oral arguments will be heard May 10.
NJ judge dismisses ObamaCare lawsuit
U.S. District Judge Freda Wolfson
Yesterday in Trenton, New Jersey, U.S. District Judge Freda Wolfson threw out a little-known lawsuit challenging the constitutionality of the Affordable Care Act. Wolfson ruled that the two plaintiffs, Nicholas E. Purpura and Donald R. Laster, lacked legal standing.
“[I]t is clear that these allegations fail to establish Plaintiffs’ standing to challenge any of the provisions of the act,” wrote Wolfson.
Purpura, 68, feared that he would lose access to Medicare Advantage, while Laster, who is disabled, argued that he would be taxed on medical devices that cross state lines, and that he would have less access to certain drugs.
Purpura and Laster, who represented themselves in the case, made other, more unusual allegations. They argued that Obama was not born in the United States, making him ineligible to be president, and therefore voiding the Act that he signed into law. They also asserted that the Act is unconstitutional because it violated both the First Amendment (by exempting Muslims and the Amish) and the Fourteenth Amendment (because it funds “historically black and minority serving colleges and taxes tanning salons”).
Unlike other judges who have thrown out ObamaCare lawsuits, Judge Wolfson was appointed by a Republican: George W. Bush in 2002.
(Source: Bloomberg.com)
BREAKING: Idaho Governor Bans ObamaCare
Idaho Governor "Butch" Otter
Idaho Governor C.L. “Butch” Otter vetoed a bill passed by the Idaho State Legislature that would have made ObamaCare illegal in the state. Then, Gov. Otter issued an executive order doing the exact same thing.
The Idaho Senate passed the nullification bill (H.B. 298) on April 5, but Otter says that the bill went too far and would have backfired. In his letter to Idaho Secretary of State Ben Ysursa explaining his reason to veto, Otter wrote that H.B. 298 not only would have banned the implementation of ObamaCare, but also would have prevented the state from setting up its own insurance exchanges, which every state must do under ObamaCare or else the federal government will do it for them. Otter’s reason to veto was to keep federal bureaucrats out of Idaho’s business.
Otherwise, Otter’s executive order is quite similar to H.B. 298. At its core, the order states that “[n]o executive branch department, agency, institution or employee of the state shall establish or amend any program or promulgate any rule to implement any provisions” of the Affordable Care Act.
(Source: Fox News)
