Monday, January 31, 2011

The Florida Health Care Decision - Not Surprising

“But we will have to pass the bill so that you can find out, uh, what’s in it, away from the fog of the controversy.” Nancy Pelosi on Obamacare

Well, long before we are finding out much about what is in it, a US District Court Judge in Florida is making us question if it is even worth reading.

Today, Judge Roger Vinson, a Republican appointee, ruled the contentious “mandate” provision of the sweeping health care legislation known to folks on the street as Obamacare to be unconstitutional. Is this the end of the battle? No. Vinson is the second of two judges who have ruled in this manner, while two other judges have ruled the clause is constitutional. The issue will make it’s way to the US Supreme Court where it will be heard and decided. It appears to me that the Feds are going to lose on this one. And while I wouldn’t bet my house on it, I would bet my golf clubs. Here’s why.

The short explanation of the “mandate” in question is that it requires people to buy health insurance. The feds have attempted to claim the “Commerce Clause” allows the federal government to have the authority over the states to require this mandate. In order to find in favor of the Feds, the high court will have to agree with the Fed’s argument that whether someone wants to use the health care industry or not, they eventually will - thus, in reality, making everyone a user at some point or another, and therefore subject to the Commerce Clause. This is a greatly abbreviated explanation, but is description enough for this piece.

Even though the Commerce Clause has been stretched beyond recognition by previous courts, this is a step that finally appears to have gone too far. The more liberal judges on the court will tend, as liberals do, to rule according to what they feel is the right thing to do. The more conservative judges will rule, as they usually do, on the letter of the law and how it is written. In other words, should we do what the law says, or do what we feel is just in our opinion? This is probably a four-four split. Anthony Kennedy, the 9th judge on the court and the frequent swing vote, is generally acknowledged to be center-right. Will he go with the conservative members? Maybe. On this issue alone, the odds are somewhat better than even he will do so. But certainly not a given.

There are other issues that are sure to influence the court. Even though the court is supposed to stay removed from public sentiment, it is not totally immune. Undoubtedly the justices know what the polls and the last election indicated - that a majority of Americans are decidedly against the bill. They know a preponderance of states - over half - are involved in the fight to stop it. They also know the bill was pushed through using legal but devious practices. While this knowledge will not guide their vote, it will, subconsciously help them decide in favor of the states should they basically agree with them.

So even though the Republicans in Congress are attempting to defund and/or destroy Obamacare, the courts may solve the problem first. If they do, however, it raises some other issues. Many lawyers who have analyzed the bill say if the mandate in question is found to be unconstitutional, the whole bill is nullified because there is no clause in the bill to the contrary. This is unusual. In fact, such a clause was in the original draft and then removed, which indicates it was removed on purpose. Concurring, Judge Vinson in today’s ruling specifically stated that without the mandate, the whole bill is invalidated. Some others, however, believe it is within the Supreme Court’s power to declare the clause unconstitutional without invalidating the entire piece of legislation.

If the entire bill is not struck down, it will lead to even more interesting discussion and political maneuvering. The Administration and leftist democrats may try to keep the rest of the bill intact, which is financially impossible. However, it will give them more leverage in the eventual re-structuring that will take place.

Anti Obamacare entities aren’t only resting their hopes with the courts. There is also hope Republicans will increase their hold in the Senate to a filibuster-proof 60 members, keeping the House, and winning the presidency in 2012. If this happens, they will have the power to repeal Obamacare in it’s entirety. With 23 Democratically occupied seats up for grabs in 2012 (mostly in more conservative districts) and only 13 Republican seats, the Republicans are poised to make some big gains - probably a majority. But to get 60 seats, they need to win 23 of the 36 seats in the game. That won’t be easy.

Whatever happens with future elections and the courts concerning the existence of Obamacare, one thing is certain - the battle will go on. Republicans are not waiting for the courts or the 2012 elections to act. Indeed, they will be attacking the bill’s parts, and do their best to limit funding of the bill, hoping to slow it down or destroy it piece by piece. And if the bill is ultimately struck down, the pressure will be with Republicans to come up with something to adequately replace it. That will be a daunting task.

If there is one lessen to be learned from this it is that no legislation should be passed without some bi-partisan support. In his presidential campaign Obama stated more than a few times that for legislation to be good and effective, it has to have bi-partisan support. The Democrats’ arrogant and greedy power grab over the health care issue is, ultimately, leading to their demise, and puts the future of Obamacare in question. A few palatable compromises with Republicans, such as meaningful tort reform, increased competition from insurance companies by allowing policies to be sold across state lines and allowing more palatable benefit limits might have produced a bill that would muster enough public and cross-party support to keep the Republicans and the courts from overturning it.

Hnag on, the battle still rages on. And it reminds us of something else:

Absolute power corrupts absolutely. The health care bill is yet another example..

Mercer Tyson

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