Why Obamacare Will be Struck Down

[Rockinghorse Winner]

Why the Supreme Court Will Strike Down All of Obamacare

By Peter Ferrara

Barack Obama made a national laughingstock out of himself with his recent
comments on the Obamacare law now before the Supreme Court. Obama said on
Monday, I'm confident that the Supreme Court will not take what would
be an unprecedented, extraordinary step of overturning a law that was passed
by a strong majority of a democratically elected Congress. (emphasis
added).

President Obama is not stupid. But he thinks you are. He knows the Obamacare
health care takeover was not passed by a strong majority. But he figures
you’re so dumb he can rewrite recent history in plain sight. The law
passed a House with a huge Democrat majority at the time by only 219-212. It
did not get a single Republican vote, but the opposition was bipartisan.

The law also barely squeaked past a Senate filibuster despite an
overwhelming 60 Senate Democrats, and even then humiliating buyoffs were
necessary. Public opposition was so strong that the ultraliberal Democrat
controlled Massachusetts, the only state to go for George McGovern in 1972,
elected a Republican in a special election for Sen. Ted Kennedy’s seat, to
terminate the Democrats’ filibuster-proof majority. That required final
passage of the law improperly in violation of Congressional rules as a
reconciliation measure, which is only to be used to clean up the budget and
so cannot be filibustered.

And given that Obama is so certain you can’t remember what happened just
two years ago, he is more than certain that you have never heard of the
ancient history of Marbury v. Madison, where the 14-year old Supreme Court
in 1803 took the then unprecedented step of overturning a provision of law
adopted by a strong majority of a democratically elected Congress, in the
Judiciary Act of 1789. That case was where the Supreme Court first
recognized its power of judicial review, under which it is empowered to
strike down laws found unconstitutional. As the Wall Street Journal observed
on Tuesday:

“In the 209 years since, the Supreme Court has invalidated part or all of
countless laws on grounds that they violated the Constitution. All of these
laws were passed by a ‘democratically elected’ legislature of some kind,
either Congress or in one of the states. And no doubt many of them were
passed by ‘strong’ majorities….probably stronger majorities than
passed the Affordable Care Act.â€

As a former constitutional law professor and President of the Harvard Law
Review, Obama no doubt knows all about Marbury v. Madison and judicial
review. But he figures he can safely assume a majority of you know nothing
about it, and his party controlled media will not tell you anything
concerning it at this inopportune moment. Hence, another classic example of
what I have called Calculated Deception.

President Obama further assailed any Supreme Court decision ruling his
Obamacare health care takeover unconstitutional as “judicial activism, or
a lack of judicial restraint, that an unelected group of people would
somehow overturn a duly constituted and passed law.†Alexander Hamilton
disagreed over 200 years ago in Federalist 78, writing, “There is no
position which depends on clearer principles, than that every act of a
delegated authority, contrary to the tenor of the commission under which it
is exercised, is void. No legislative act, therefore, contrary to the
Constitution, can be valid. . . .â€

Or, as the Wall Street Journal explained on Monday:

“Judicial activism is not something that happens every time the Supreme
Court overturns a statute. The Justices owe deference to Congress and the
executive, but only to the extent that the political branches stay within
the boundaries of the Constitution. Improper activism is when the Court
itself strays beyond the founding document to find new rights or enhance its
own authority without proper constitutional grounding.â€

The Journal added, “Far from seeking an activist ruling, the Obamacare
plaintiffs aren’t asking the Court to overturn even a single commerce
clause precedent.â€

In my role as General Counsel of the American Civil Rights Union, I filed 3
amicus curiae briefs with the Supreme Court in the Obamacare litigation. I
also filed amicus briefs in the lower federal courts in the cases in
Virginia and Florida.

The power to compel the purchase of health insurance for the public good, as
in Obamacare’s individual mandate, is a function of the police power
reserved to the states, and denied to the federal government by the
Constitution and Supreme Court precedents. If the federal government is now
to hold a national police power, then the constitutional framework of
federalism, with limited, enumerated powers delegated to the federal
government, and the remaining powers of government retained by the states,
would be obliterated.

That is why the Supreme Court held in United States v. Morrison, 529 U.S.
598 (2000), “We always have rejected readings of the Commerce Clause and
the scope of federal power that would permit Congress to exercise a police
power.†The Court added, “the principle that the Constitution created a
Federal Government of limited powers, while reserving a generalized police
power to the States, is deeply ingrained in our constitutional history.â€
The Court explained in New York v. United States, 505 U.S. 144 (1992) that
Congress may not exercise its enumerated powers in a way that “infring[es]
upon th[at] core of state sovereignty.†The Court in Morrison rejected the
argument that women who are sexually assaulted would need medical care
provides a sufficient interstate commerce connection under the Commerce
Clause.

As Justice Kennedy explained in United States v. Comstock, 130 S. Ct. 1949
(2010), “the precepts of federalism embodied in the Constitution inform
which powers are properly exercised by the National Government in the first
place.†The Court added in Gregory v. Ashcroft, 501 U.S. 452, 457 (1991),
“[t]he Constitution created a Federal Government of limited powers [and]
withhold[s] from Congress a plenary police power that would authorize
enactment of every type of legislation.â€

The Obama Administration tried to shoe horn the individual mandate into the
federal enumerated power of the Commerce Clause, which grants Congress the
power to regulate interstate commerce. Their argument boiled down to the
claim that millions of people choosing to not buy health insurance
substantially affects interstate commerce. But every economic decision, when
aggregated across the whole market, substantially affects interstate
commerce in this way, including decisions not to do something. So that would
leave the Commerce Clause eating up the whole Constitution and its most
fundamental doctrine that the federal government is an authority of limited,
enumerated, delegated powers. Federal power would then be without limit,
contrary to the whole concept of the federal government in the Constitution.

That is why the Court kept asking the government for a principle that would
limit its interpretation of the Commerce Clause, and its failure to come up
with one is fatal to the government’s case. All prior cases under the
Commerce Clause were based on the principle that some action had been taken
that the federal government could then regulate as interstate commerce. To
hold that inaction could be regulated as well as itself substantially
affecting interstate commerce would break through any limitation on the
power, and so was not what was intended. That would also again tear down the
Constitution’s fundamental federalism architecture and any distinction
between limited federal and plenary state power.

That is why the Supreme Court in United States v. Lopez, 514 U.S. 549 (1995)
rejected the notion of unlimited Commerce Clause power, holding that it will
strike down regulation under the Commerce Clause which leaves no principled
limit to federal power under the Clause. The Court said, “the
Constitution’s enumeration of powers does not presuppose something not
enumerated and that there will never be a distinction between what is truly
national and what is truly local.†Justice Kennedy added, “[T]he federal
balance is too essential a part of our constitutional structure and plays
too vital a role in securing freedom for us to admit inability to intervene
when one or another level of Government has tipped the scales too far.â€

Once the Court finds the individual mandate unconstitutional on these
grounds, as it will, the question becomes whether the whole Obamacare Act
must be struck down as unconstitutional as a result. The law does not
include a traditional severability clause providing that if one of provision
of the Act is found unconstitutional, the rest of the law should stand.

Consequently, the question becomes whether the remaining parts of the
Obamacare law can still remain fully operative and function as Congress
intended, and whether Congress would have passed the Act without the
individual mandate. The answer in both cases is indisputably no.

Obama’s lawyers themselves have repeatedly argued in courts all over the
country that the Obamacare law cannot function without the individual
mandate. That is because of the Act’s regulatory requirements for
guaranteed issue and community rating. The Act requires all insurers to
cover all pre-existing conditions and issue health insurance to everyone
that applies, no matter how sick they are when they first apply or how
costly they may be to cover. Moreover, the insurers can only charge them the
same, standard, market rates as everyone else.

Under these regulatory requirements, younger and healthier people delay
buying insurance, knowing they are guaranteed coverage at standard rates
after they become sick. Sick people show up applying for an insurer’s
health coverage for the first time with very costly illnesses such as cancer
and heart disease, which the insurer must then cover and pay for, out of the
same standard premiums as everyone else pays. This means the insurer’s
covered risk pool includes more costly sick people and fewer less costly
healthy people, so the costs per person covered soar. The insurer then has
to raise rates sharply for everyone just to be sure to have enough money to
pay all of the policy’s benefits.

Those higher rates encourage even more healthy people to drop their
insurance, leaving the remaining pool even sicker and more costly on
average, which requires even higher premiums, resulting in a financial death
spiral for the insurers and the insurance market.

If regulation required fire insurers to issue policies to people whose
houses were already on fire at standard rates, the fire insurance pool would
include only all burned down houses, which would obviously be dysfunctional.

The Obamacare law tries to counter this problem by adopting the individual
and employer mandates, seeking to require everyone to be covered and
contributing to the pool at all times. Without these mandates, the
government itself has repeatedly argued, those who would remain uninsured
would substantially affect the interstate market for health insurance, by
allowing the remaining regulatory requirements to cause soaring health
insurance premiums through the above process and ultimately a financial
death spiral.

That financial death spiral would cause the costs of other provisions of
Obamacare to soar, such as the subsidies for purchase of health insurance on
the Exchanges, which would be even more costly than expected, and the costs
for the Medicaid expansion, where more people would qualify given the
decline of private insurance.

Indeed, Obamacare itself in its very statutory language recognized the
essential role of the individual mandate in the statute’s overall
framework, saying in Section 1501(a)(2)(I):

“[I]f there were no [individual mandate], many individuals would wait to
purchase health insurance until they needed care….The [individual mandate]
is essential to creating effective health insurance markets in which
improved health insurance products that are guaranteed issue and do not
exclude coverage of pre-existing conditions can be sold.â€

As the court said in Alaska Airlines v. Brock, 480 U.S. 678 (1987),
“Congress could not have intended a constitutionally flawed provision to
be severed from the remainder of the statute if the balance of the
legislation is incapable of functioning independently….†Moreover, the
Court also recognized that in the absence of a statutory severance clause
the entire statute must be struck down if Congress would not have enacted
the statute without the unconstitutional provision.

Consequently, the loss of the individual mandate so centrally affects the
entire structure of the Act that without it the entire structure must fall.
Trying to determine what could be salvaged would embroil the Court in
rewriting the statutory policy and framework to govern one-sixth of the
entire U.S. economy, which is obviously not a judicial function.

The only other foreseeable outcome is for the liberals on the Court to agree
to go along with a ruling declaring the mandate unconstitutional if the
Court will just decide to hold back on deciding severability to give
Congress the chance to figure out how it wants to fix it. But Congress could
just pass a whole new law in any event if the Court just strikes down the
whole thing, which based on its precedents is exactly what it should do.

But liberals should not despair. There is broad bipartisan agreement on
alternative means of covering the uninsured with a health care safety net,
which would not be expensive if done right, and addressing health costs
through market competition and incentives, which altogether could well
actually reduce federal spending sharply. The end result would be a much
better bill that satisfies all desirable social goals. But that would still
require a different President, because Obama’s anti-market, left wing,
ideology would not allow him to accept that desirable result.

Forbes.Com

--
"There are two means of refuge from the miseries of life: music and cats."
-Albert Schweitzer

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