Legal Challenge Could Derail Health Care Law

[Guest]

Fairfax, Va. --

When 21 states and several private groups initiated lawsuits challenging the constitutionality of the Obama health care law earlier this year, critics denounced the suits as frivolous political grandstanding. But it is increasingly clear that the plaintiffs have a serious case with a real chance of victory.

The suits focus primarily on challenges to the new law's "individual mandate," which requires most American citizens to purchase a government-approved health insurance plan by 2014 or pay a fine. One of the cases was filed by 20 state governments and the National Federation of Independent Business in a federal court in Florida. Another was initiated by the Commonwealth of Virginia in a federal court in this state, and a third by the Thomas More Law Center in Michigan.

The judges considering the Florida and Virginia cases have both issued rulings rejecting the federal government's motions to dismiss the suits and indicating that the mandate can't be upheld based on current Supreme Court precedent. By contrast, Michigan district Judge George Caram Steeh wrote a decision concluding that the mandate is constitutional. But even he agreed that the case raises an "issue of first impression."

In the most recent of the three rulings, Florida federal District Court Judge Roger Vinson wrote that the government's claim that the mandate is clearly authorized by existing Supreme Court precedent is "not even a close call." He points out that "[t]he power that the individual mandate seeks to harness is simply without prior precedent," because no previous Supreme Court decision ever authorized Congress to force ordinary citizens to buy products they did not want.

An August ruling in the Virginia case by federal District Judge Henry Hudson reached the same conclusion. As Judge Hudson points out, "[n]o reported case from any federal appellate court" has ever ruled that Congress' powers "include the regulation of a person's decision not to purchase a product."

The federal government claims that Congress has the power to impose the mandate under the Commerce Clause, the Necessary and Proper Clause, and the Tax Clause of the Constitution. On the first two claims, Judge Vinson ruled that Supreme Court precedent doesn't clearly support the government, thereby enabling the plaintiffs' lawsuit to go forward. He outright rejected the government's claim that the mandate is constitutional because it is a "tax." It is instead a financial penalty for refusing to comply with a federal regulation. As Judge Vinson pointed out, congressional leaders consistently emphasized before the law's enactment that it was not a tax.

In September 2009, President Obama himself noted that "for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase." He was right. If the mandate qualifies as a tax merely because it punishes violators with a fine, then Congress could require Americans to do almost anything on pain of having to pay a fine if they refuse. It could, for example, force citizens to buy virtually any product, such as purchasing General Motors cars for the purpose of helping the struggling auto industry.

The government's Commerce Clause argument is equally dubious. The Clause gives Congress authority to regulate "Commerce . . . among the several states." But the individual mandate regulates that which is neither commercial nor interstate.

Virtually all purchases of health insurance are intrastate because a combination of state and federal law makes it illegal to purchase health insurance across state lines. Moreover, the object of the mandate isn't even commerce at all. Instead of regulating pre-existing commerce, the bill forces people to engage in commercial transactions they would have otherwise avoided.

A series of flawed Supreme Court decisions have expanded Congress' Commerce Clause authority well beyond what the text of the Constitution permits. These rulings allow the federal government to regulate almost any "economic activ ity." But, as Judge Vinson emphasized, even they do not give Congress the power to regulate people "based solely on citizenship and on being alive." Far from engaging in "economic activity," people who decide not to purchase health insurance are actually refraining from doing so.

In his decision in the Michigan case, Judge Steeh argued that the mandate is constitutional under the Commerce Clause because deciding not to purchase health insurance is an "economic decision."

"Economic decisions," he reasoned, include decisions not to engage in economic activity. This approach would allow the Commerce Clause to cover virtually any choice of any kind. Any decision to do anything is necessarily a decision not to use the same time and effort to engage in "economic activity."

If I choose to spend an hour sleeping, I necessarily choose not to spend that time working or buying products. Under Judge Steeh's logic, the Commerce Clause authorizes Congress to force workers to get up earlier in the morning so that they would spend more time on the job.

Some defenders of the law claim that the individual mandate is similar to federal laws banning racial discrimination against customers by businesses such as motels and restaurants. But federal antidiscrimination laws apply only to existing businesses already engaged in commercial activity in the regulated industry. By contrast, uninsured individuals are not businesses and, by definition, are not participating in the insurance industry.

The federal government also argues that the mandate is authorized by the Necessary and Proper Clause, which gives Congress the power to "make all Laws which shall be necessary and proper for carrying into Execution" other powers Congress is granted by the Constitution.

Even if the mandate is "necessary," it is not "proper" under our constitutional system of limited federal authority. If the Clause allows Congress to adopt the individual mandate, the same logic would justify almost any other requirement Congress might impose on individuals, thereby gutting the principle of limited federal power.

The legal battle over the mandate is far from over. The Florida and Virginia rulings are not final decisions. Both cases, as well as the Michigan decision, are sure to be appealed to the federal courts of appeals and, ultimately, the Supreme Court.

The anti-mandate plaintiffs still face an uphill struggle. Courts are rarely willing to strike down a law that is a centerpiece of the political agenda of the president and his party. Nonetheless, it is increasingly clear that lawsuits are far from "frivolous" and have a real chance to prevail.

http://www2.timesdispatch.com/news/rtd-opinion/2010/nov/07/ed-somi07-ar-634809/

[Bravus]

Of course, real socialized medicine that covers absolutely everyone and is paid out of tax revenues (remember, while taxes would go up, private health care costs would vanish - if managed right net costs would actually go down through economies of scale and reduction of duplication) would completely solve that particular constitutional problem.

[Dr. Shane]

The irony too is that government, universal health-care would most likely be constitutional. It would be paid for with an increase in taxes which Congress has a right to do. However mandating everyone to buy private health-care insurance or face a fine is much more questionable.

[phkrause]

The irony too is that government, universal health-care would most likely be constitutional. It would be paid for with an increase in taxes which Congress has a right to do. However mandating everyone to buy private health-care insurance or face a fine is much more questionable.

But than what do you do about those that don't want HI but go to the ERs and pay nothing, and than the rest of us have to pay for? Those that do choose not to have HI and than pay out of there own pockets are very few and far apart. Here in MA our costs have gone way up because of this, but from what I've heard this year costs have not gone up as high because we have had mandatory HI now for 2 or 3 years. But HC costs still continue to go up each year regardless. I do agree that forcing people to have HI is a tough one, but obviously many Americans have asked for this. But think Universal HC would have been a good way to go.

[Dr. Shane]

Do the ends justify the means?

Is it ok to torture a terrorist because he won't talk?

Mandating individuals to buy a product from a private company is simply not right. If 90% of the country is employed, the employer mandates will get 90% of the people covered. So the government only needs to come up with a type of insurance to cover the other 10% which is covered by the tax payers.

[rudywoofs (Pam)]

I don't like the fact that the new bill would require people who don't have health insurance to be fined for not participating. They don't have health insurance because they can't afford it. What sense does it make for the govt to force people who don't have the money in the first place, to then have to *pay* for the right not to spend money they don't have, on health insurance??? That's crazy to penalize those people. imho

[Tom Wetmore]

Most states mandate that you must buy car insurance. Help me see that as any different than mandating you buy health care insurance?

As for the "legal challenge", this sort of litigation seldom accomplishes anything accept to waste the resources of an already over burdened legal system. And it could go on for years.

[bonnie]

Do the ends justify the means?

Is it ok to torture a terrorist because he won't talk?

Mandating individuals to buy a product from a private company is simply not right. If 90% of the country is employed, the employer mandates will get 90% of the people covered. So the government only needs to come up with a type of insurance to cover the other 10% which is covered by the tax payers.

It will not be 90% employers paying for employee insurance.They will op out and pay the fine.Then will come one payer government insurance

[bonnie]

I don't like the fact that the new bill would require people who don't have health insurance to be fined for not participating. They don't have health insurance because they can't afford it. What sense does it make for the govt to force people who don't have the money in the first place, to then have to *pay* for the right not to spend money they don't have, on health insurance??? That's crazy to penalize those people. imho

There are many people that deliberately opt not to have insurance and pay in cash.We did for several years with four active boys.It actually saved us money even tho there were two surgeries to pay for out of pocket.

It is not crazy from Obama's view.He wants and has said as much a single payer.He acknowledged it would not happen over night but within 10-15 years he expected and wanted to see a governm,ent single payer

[bonnie]

Most states mandate that you must buy car insurance. Help me see that as any different than mandating you buy health care insurance?

As for the "legal challenge", this sort of litigation seldom accomplishes anything accept to waste the resources of an already over burdened legal system. And it could go on for years.

If this is not repealed you may soon see the difference.

I had a total knee replacement this week,I also need to have a hip replacement.

My Dr advised me to do so as soon as possible because no one knows what is coming down the pike and they believe it will be a much longer waiting line for these types of surgeries. I think I will believe my Dr over Obama anyday.The way it is now surgeries like mine will soon be a low priority.It is not life threatening Reducing medicare as much a 500 billion dollars and adding millions more to medicare and medicid does not wash.Something has to give and it will have to be medical care.Dr's like mine are not sure how much more of medicare reduction they can handle and still keep their medicare patient load.

[phkrause]

If this is not repealed you may soon see the difference.

My Dr advised me to do so as soon as possible because no one knows what is coming down the pike and they believe it will be a much longer waiting line for these types of surgeries.

When you say waiting period, how long are we talking about? 2 weeks, 3, 4 or more. My Mom had her knee replaced in '04, she lives in Deltona, FL, she waited about 6 months! A church member here in MA needed both knees replaced, he waited about a week or two, he had this done this past year. It seems it depends more on where you live than anything else, or how many are on the list.

[phkrause]

My Dr advised me to do so as soon as possible because no one knows what is coming down the pike

Not disagreeing with you, but our Doctors here in Mass, especially down in the Hospital that we go to in Worcester, MA have pretty much all said they are very happy about the new HC bill. There are small parts they don't like but over all they think its the best thing since sliced bread. Again there are those that are happy about it and those that are not. That's always going to be the case.

[Guest]

Most states mandate that you must buy car insurance. Help me see that as any different than mandating you buy health care insurance?

When you get sick it doesn't tear up your neighbor's car.

[bonnie]

Originally Posted By: bonnie

If this is not repealed you may soon see the difference.

My Dr advised me to do so as soon as possible because no one knows what is coming down the pike and they believe it will be a much longer waiting line for these types of surgeries.

When you say waiting period, how long are we talking about? 2 weeks, 3, 4 or more. My Mom had her knee replaced in '04, she lives in Deltona, FL, she waited about 6 months! A church member here in MA needed both knees replaced, he waited about a week or two, he had this done this past year. It seems it depends more on where you live than anything else, or how many are on the list.

My Dr is about a month ahead on scheduling surgeries.He is extremely popular and most don't want to settle for other Dr's who can schedule sooner.

If there is a wait with a Dr that you consider to long you do have options with orthe Dr's.A friend of mine just went with one that scheduuled her within a week versus a very busy Dr that was booked four weeks ahead.

You have a choice.My Dr is talking of when those choices have been taken away.

Many things in the so called health care bill relate to new taxes and not health. You will even be paying a additional tax on your home if it sells for a certain amount.The amount is not that great either.

Math and common sense should tell anyone something or someone has to be sacrificed when millions are added to a already broke org.In addition to removing 500 billion from that which you are adding millions of recipients.

Employers will only go so far and then the employee,that poor person so many claim to be worried about will suffer. You don't become a successful business man by being financially stupid.

To many employer's have alread had the numbers crunced by their advisors and know it is going to crush some businessess and others will refuse to work more for the government greed.

It is not as simple as passing on to consumer,this is beyond that which the consumer will bear.

One local business man has scaled hours of his emplyee's way back and hired more part time. At a additional 15,000.00 per month in premiums he could not afford Obama's medical savings plan. They have a better grasp than Obama or any of his advisors who most have never worked a day at a regular job. One where they had to compete and make that profit Obama so abhores. As he tells the business man this is no time to make a profitI wonder if he has rejected his salary as president.He has millions and vitually no expenses,so let the great man put his money where his mouth is

[Dr. Shane]

Most states mandate that you must buy car insurance. Help me see that as any different than mandating you buy health care insurance?

This kind of question comes from those born with a silver spoon in their mouth that are completely unfamiliar with what means to be poor.

No state mandates everyone to buy car insurance. Only people that own cars and drive them on public streets must buy car insurance. When I was a child, we didn't have a car and consequently, we didn't have to have car insurance either. We lived in a metropolitan area (Seattle, Washington) and used the bus or our bicycles. No insurance was required. A few years ago my wife and I went to visit her sisters in New York City. The sister we stayed with doesn't have a car. Consequently, she doesn't have car insurance either. She uses the bus and subway to get around.

[bonnie]

Originally Posted By: bonnie

My Dr advised me to do so as soon as possible because no one knows what is coming down the pike

Not disagreeing with you, but our Doctors here in Mass, especially down in the Hospital that we go to in Worcester, MA have pretty much all said they are very happy about the new HC bill. There are small parts they don't like but over all they think its the best thing since sliced bread. Again there are those that are happy about it and those that are not. That's always going to be the case.

Well over half this nation now seem to realize what this will mean.When my Dr does not know how long he can keep all his medicare patients and is not accepting new ones it tells me far more than I would believe coming from Obama's mouth.I believe it is Jan 1st that another 21% is scheduled to be deducted from medicare patients.

[Dr. Shane]

It will not be 90% employers paying for employee insurance.They will op out and pay the fine.Then will come one payer government insurance

That is one of the problems with Obama-care. The employer mandate needs to be a real mandate like worker's compensation is. No fine option. Provide the insurance or get out of business and make room for another that will.

[bonnie]

Originally Posted By: bonnie

It will not be 90% employers paying for employee insurance.They will op out and pay the fine.Then will come one payer government insurance

That is one of the problems with Obama-care. The employer mandate needs to be a real mandate like worker's compensation is. No fine option. Provide the insurance or get out of business and make room for another that will.

No,Obama has to quit screwing up the perfectly good insurance most employee's demand.

My neighbor is a good example.He had a cadillac policy.No deductible previously,he now has a 1500.00 deductible,no co-pays on Obama's mandates so now co-pays on services not previously requiring them or higher co-pays on those allowed.

Most that have to live with Obama's version of saving money don't like it.Those that still have not read and understood all that is in it get the part about "free" and are all in favor

[Dr. Shane]

As bad as Obama-care is, something had to be done. The do-nothing Republicans ignored the issue while premiums sky-rocketed, coverage dropped and more and more people lost coverage all together. Americans finally had enough and tossed those do-nothing Republicans out. Obama came to town and did the job. God bless that man. Now at lease the ball is in motion. I am confident that with the division of power we will get something good in the end.

[Guest]

Originally Posted By: Tom Wetmore

Most states mandate that you must buy car insurance. Help me see that as any different than mandating you buy health care insurance?

This kind of question comes from those born with a silver spoon in their mouth that are completely unfamiliar with what means to be poor.

I agree. Also you can choose to drive a car or not. You cannot choose to exist or not. That is why it is unconstitutional to force people to buy a product against their will. It is wrong on many levels.

And again, your getting sick doesn't damage your neighbor's car.

[Dr. Shane]

The whole car insurance issue comes back to the fact that driving is a privilege - not a right. Not only does one have to have insurance, they have to maintain their car. Many states require safety inspections. Even states that do not force people to keep all their lights working, a specified amount of tread on the tires, a working muffler and numerous other issues. Driving is a privilege so the state can mandate that several requirements for them. BUT WE DON'T HAVE TO BE DRIVERS! We drive by choice. Public transportation is available in major cities and most smaller ones too.

[bonnie]

As bad as Obama-care is, something had to be done. The do-nothing Republicans ignored the issue while premiums sky-rocketed, coverage dropped and more and more people lost coverage all together. Americans finally had enough and tossed those do-nothing Republicans out. Obama came to town and did the job. God bless that man. Now at lease the ball is in motion. I am confident that with the division of power we will get something good in the end.

How foolish a statement.Bad Obama care does not really kick in till 2014,so tell me what has been done except to drive up the costs you appear to worry about.

All over the country people are having their premiums raised.That is how dear compassionate Obama helped the little man.All businesses cannot to pay thousands extra a month for what they were paying a lot less.

Compassionate Shane wants those that cannot meet Obaba's mandates out of business.Obama the non business man,a man that has never worked at a competative business now thinks he actually knows something.What he knows is that higher cost insurance and higher and higher taxes to employer and employee will shut down businesses and make is dream of single option a reality

[Dr. Shane]

What Obama has done is level the playing field. The businessman that cannot compete on a level playing field needs to go to work for someone else who can. The message is clear, if you can't run a business that provides health-care coverage for its employees, step aside and let someone else run it that can. It is just like providing worker's compensation. It is a ethical part of doing business in the modern era.

[bonnie]

What Obama has done is level the playing field. The businessman that cannot compete on a level playing field needs to go to work for someone else who can. The message is clear, if you can't run a business that provides health-care coverage for its employees, step aside and let someone else run it that can. It is just like providing worker's compensation. It is a ethical part of doing business in the modern era.

There is a cost of doing business and then insanity Obama style. Businesses that are providing adequete insurance now will be priced out by many more thousands a month.Only a Obama idolizer or Obama himself could look at that as a savings.

Kind of curious if this is going to effect denominations.It would be kind of fun to watch those like yourself that feel thousands more a month is less expensive if it effects our denomination.Do you think our denomination could weather many,many thousands of dollars per month more? If they can they should probably stop asking for more and spend what they have

[Dr. Shane]

I have always said there are a lot of things wrong with Obama-care. I favor medical saving accounts. These typically allow employees to set aside a portion of their pre-tax income for medical expenses and the employer can match that. In addition there is a major medical policy attached that has a $5,000 or $10,000 deductible. Even with an employer match, these policies are a lot less expensive than other policies. Of course, Obama doesn't like the medical savings accounts.