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Federal Judge to ObamaCare Defenders: Nope!

December 15, 2010 By: Scott Spiegel Category: Health Care

NOPE

On Monday a Virginia federal district court judge ruled that the primary enforcement mechanism of ObamaCare, the Minimum Essential Coverage Provision—also known as the individual mandate—was unconstitutional.

Justice Henry E. Hudson’s summary judgment did not rule on any other aspect of the Patient Protection and Affordable Care Act, and the Obama Justice Department will likely appeal the decision, but the individual mandate is key to making ObamaCare work, since requiring the purchase of health insurance by virtually all U.S. citizens is the only way the rest of the bill can be paid for.  Hudson’s ruling provides ammunition to those who argue that requiring people to purchase a product or service against their will is unconstitutional.

Health and Human Services Secretary Kathleen Sebelius took two primary lines of defense against the Commonwealth of Virginia, whose Attorney General Ken Cuccinelli filed the suit.

First, she argued that the purchase of health care insurance is an activity that affects interstate commerce, which the Constitution gives the federal government the power to regulate per the Commerce Clause and via the Necessary and Proper Clause.  She cited the cases of Wickard v. Filburn, which upheld the government’s ability to regulate farmers’ growing and consumption of wheat on their farms, and Gonzales v. Raich, which upheld the government’s ability to do the same for marijuana for medicinal purposes, as evidence that the government can regulate private individual economic activity due to its effect on interstate commerce.

Sebelius stated that the power to force people to buy health insurance “is well within the traditional bounds of Congress’s Article I power,” by which she meant of course that it’s not remotely within those bounds, but she’d throw in “well” to hedge against any doubt the court may have on that matter.

Hudson tore Sebelius’ argument apart by noting that, for starters, Wickard and Gonzales were widely recognized as being at the very outer limits of interpretation of the Commerce Clause, and that the individual mandate provision goes even further than these cases.  Hudson also pointed out a crucial difference between these two cases and the case of the individual mandate.  Namely, in Wickard and Gonzales, the federal government was regulating private economic decisions citizens had made, including purchasing a plot of land and growing wheat on it, and cultivating marijuana.

The individual mandate, in contrast, would be the first case in U.S. history in which the government was targeting a non-decision or non-action—not purchasing health insurance—as interstate “economic activity” subject to regulation.  As Justice Hudson writes, “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.”

Second, Sebelius argued that, even if the individual mandate couldn’t be regulated under the Commerce Clause, the Constitution gives the federal government broad power to tax citizens under the General Welfare Clause.  The penalty to be paid for noncompliance with the individual mandate could simply be considered a tax.

Not so fast, wrote Justice Hudson.  Taxes and penalties are different things, and calling a penalty a tax for convenience’s sake doesn’t make it one.  Taxes are used to generate revenue; penalties are used to enforce regulations.

When they were trying to sell their plan to the public, President Obama and Democratic legislators insisted to reporters that the fine was not a tax but a penalty.  An early version of the bill used the word “penalty” to refer to the fine, later versions used the word “tax,” and the final version reverted to “penalty.”  Hudson called the rebranding of the fine as a “tax” a “transparent afterthought.”

There are other revenue-generating mechanisms in the 2,700-page bill that are referred to as taxes, such as the tax on “Cadillac” insurance plans, so clearly the bill’s authors meant for there to be a distinction between its taxes and its penalties.  Finally, Hudson notes that the purpose of the fine couldn’t be primarily to generate revenue, because if the enforcement mechanism worked perfectly, the revenue collected from the fine would be zero dollars.

So kudos to Justice Hudson for yanking out the linchpin of ObamaCare, without which it cannot properly run and will fall to pieces.  Though two Democratic-appointed federal justices in unrelated lawsuits in Virginia and Michigan have found the bill constitutional, and further rulings on the bills will be handed down from the 4th U.S. Circuit Court of Appeals and the Supreme Court, this is an important victory in stopping the ObamaCare Express, even if we couldn’t catch it before it left the station.

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Top 10 Conservatives of 2010: Part 2

December 08, 2010 By: Scott Spiegel Category: Miscellaneous

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5. Ken Cuccinelli – Virginia’s Attorney General took office only in January of this year, after the November 2009 mini-wave election that brought us Republican governor Bob McDonnell. Cuccinelli was first out of the gate nationally to file a federal lawsuit challenging the constitutionality of the individual mandate provision of the worst piece of American legislation passed in a generation, the Patient Protection and Affordable Care Act. (ObamaCare, as it is known, is also the only significant piece of American legislation remaking large swaths of society that did not pass with bipartisan support.) Cuccinelli filed his suit on behalf of Virginia less than 48 hours after passage of the bill, and in August a district court judge ruled that the lawsuit may proceed, which most expect it to do all the way to the Supreme Court.

Cuccinelli earned his stripes for this act alone, but gets bonus points for spearheading an effort–now supported by almost 20 states–to curb the Environmental Protection Agency’s authority to regulate carbon dioxide emissions as a pollutant. He also scores for investigating former UVA professor Michael Mann’s role in last fall’s ClimateGate.

4. Jim DeMint – Like Sarah Palin, South Carolina Senator DeMint was both prescient and influential in hand-selecting Tea Party candidates to endorse in crucial races across the country for the 2010 midterm primaries. DeMint had a better record of picking true conservatives than Palin, including Chuck DeVore over Carly Fiorina in California and Ovide Lamontagne over Kelly Ayotte in New Hampshire.

After a six-year stint as a South Carolina Representative, DeMint was elected to the Senate and made a name for himself as one of the key Senators working to eliminate earmarks in Congress. He was a vocal opponent of the bank bailout President Bush supported and the stimulus bill Obama pushed. DeMint bucked Obama in 2009 and traveled to visit Honduran President-elect Roberto Micheletti in support of the leader’s arrest of leftist former president Manuel Zelaya. DeMint’s one downside is that he received only 33% more of the vote in his 2010 reelection bid than Alvin Greene.

3. Rand Paul – Arguably the most exciting winner in the 2010 midterms, Kentucky Senator-elect Rand Paul is both radically fiscally libertarian and less nutty and isolationist than his eccentric father, Texas Senator Ron Paul, including his opposition to closing Guantanamo Bay and his favoring military tribunals for suspected terrorists. Founder of Kentucky Taxpayers United and a self-described “constitutional conservative,” Paul weathered trivial criticisms over his ophthalmologist board certification, a college prank he played 27 years ago, and his reservations about one of the 10 titles of the Civil Rights Act. He crushed primary opponent Trey Grayson by 23% and general opponent Jack Conway by 12%.

Despite unjustified opposition to the PATRIOT Act, support for tax breaks to companies producing “alternative energy,” and other problems with his platform, Paul is unflinching in his desire to abolish the Federal Reserve, the federal income tax, and the National Department of Education. He also seeks to end federal bailouts and pass a balanced budget amendment, a moratorium on tax increases, and a “Read the Bills” Act.

2. Paul Ryan – In the dark days leading up to the passage of ObamaCare, Wisconsin Representative Paul Ryan proved himself to be, sadly, one of the few Republicans who could articulate the disastrous projected economic consequences of the legislation and reveal the sleight-of-hand Democratic legislators were using to pass the bill off as deficit-reducing. His efforts were most notable in his starring role in Obama’s embarrassing Blair House Summit in February.

Ryan also introduced the Roadmap for America’s Future, which outlined his plan for managing our country’s gargantuan deficits by addressing entitlement reform for Social Security, Medicare, and Medicaid, including privatizing these programs via vouchers with declining value over time. While most Republicans are still figuring out how to repeal or defund ObamaCare, Ryan is several steps ahead, plotting how to reverse similar debacles passed generations ago and on the verge of bankruptcy.

1. Chris Christie – After winning a surprise victory over incumbent John Corzine last November, New Jersey Governor Chris Christie has been the conservative politician in recent memory who has most lived up to expectations. Whether fearlessly standing up to teachers’ unions, telling off legislators or reporters who refused to face facts, slashing wasteful government programs with no concern for the self-righteous outcry from beneficiaries of this largesse, or refusing to fund unaffordable new boondoggles like the proposed Manhattan-New Jersey tunnel, Christie put his principles into action and remained surprisingly popular with voters while doing so.

Christie already had a stellar record of accomplishment as U.S. Attorney for the District of New Jersey, having won convictions for 130 public officials in corruption cases with a stunning 100% success rate. In an election year full of impressive candidates who ran and won on outstanding platforms of things they promised to do, Christie takes the top spot for actually doing them.

Honorable mentions: Andrew Breitbart, John Cornyn, Mitch Daniels, Bobby Jindal, Ron Johnson, John Kyl, Mike Lee, Ted Olson, Tim Scott, Pat Toomey

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Twelve Ways to Stop Obamacare

March 23, 2010 By: Scott Spiegel Category: Health Care

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History in the making, indeed.  The 100,000 constituents who signed the Senate Conservatives Fund’s Repeal ObamaCare Pledge in the first 48 hours since the House passed Obamacare suggest that historic efforts are about to be made to kill this bill before it can inflict its intended and unintended damage.

Here’s a roadmap of priorities for Obamacare opponents in and out of Washington, to get us from this dispiriting week to January 2013:

1. Challenge the constitutionality of H.R. 3962. Work to invalidate its requirement that all individuals purchase a good or service—in this case, health care—as a condition of being alive, something the federal government has never forced its citizens to do.  Contest the federal government’s ability to unload an unfunded mandate onto states, many of which are experiencing budgetary crises and couldn’t afford a new permanent entitlement even if they wanted one.

2. Encourage states to file lawsuits against the bill. Twelve states have already pledged to do so, including Virginia, Florida, South Carolina, Texas, Washington, Alabama, North Dakota, South Dakota, Pennsylvania, Utah, Oklahoma, and Nebraska.  H.R. 3962, unlike many other comprehensive bills previously passed by Congress, fortunately contains no severability clause that leaves the remainder of the bill intact if one part is struck down in court.  Thus, getting a court to nullify just one part of this bill would overturn the entire thing.  Take these court challenges all the way to the Supreme Court.

3. Encourage states to pass laws preventing residents from being required to buy insurance. Thirty-eight states are considering passing such legislation, and 33 have already introduced bills.  These 33 states include Washington, Minnesota, Michigan, New Jersey, and Pennsylvania—all large states that went for Obama in 2008, which disproves liberals’ inevitable charge that rebel states are just rural flyover country filled with racist rednecks.  Virginia (another Obama state) is the first state to have passed such legislation, through an effort led by Attorney General Ken Cuccinelli.  Idaho has also passed legislation protecting its residents from the federal mandate.

4. Encourage states to block enforcement of the bill. Refuse to fund it.  How can states that are millions of dollars in the red pay for a massive new program dumped on them by the Fed?

5. Give Congressmen an earful during their spring Congressional recess. Make last summer’s townhalls look like giddy autograph signings.  Jam Congressmen’s schedules with meetings; pressure Senators not to sign the House’s reconciliation measure; pressure House members not to sign any reconciliation measure revised by the Senate.

6. Challenge the reconciliation process. Get the Senate parliamentarian to rule (correctly) that the House’s Social Security-related provision is inappropriate for inclusion in a reconciliation bill, per the Byrd Rule, and must be removed.

7. Change the reconciliation bill. Force the Senate to make changes to the reconciliation bill before voting on it, so that the House has to vote again on the Senate’s version; then force the House to make changes so the Senate has to vote again; and back and forth.  Strip away enough dissatisfied votes from at least one chamber to prevent the reconciliation measure from being passed, thus letting the ugly Senate bill with its backroom deals and tax on costly union health plans stand intact and paving the way for repeal.

8. Hold up the reconciliation process. Encourage GOP Senators to tie up voting on the reconciliation bill in the Senate by proposing an indefinite number of amendments.  Although debate on a reconciliation bill is limited to 20 hours (about one second per 43,000 citizens affected by the legislation), there are no limitations on the number of amendments that may be proposed.

9. Take over the House, Senate, and Presidency. Vote Democrats out of Congress in 2010 and 2012, and Obama out of office in 2012, and elect conservative Republicans who promise to repeal Obamacare.  Support candidates who campaign on the promise to repeal Obamacare as their first act of the 113th Congress in January 2013.  In the same way that Scott Brown annihilated his opponent in Massachusetts by campaigning on one promise—to vote against the Senate health care bill—all Republican Congressional candidates in November 2010 and 2012 should campaign on the sole promise to repeal Obamacare.  Dozens of Representatives and Senators have already pledged to repeal the bill, as have hundreds of 2010 Congressional candidates, including Senate hopefuls Marco Rubio in Florida, Chuck DeVore in California, Michael Williams in Texas, and Pat Toomey in Pennsylvania.

10. Repeal H.R. 3962.

11. Amend the Constitution. If necessary, get three-quarters of the states—perhaps the same 38 considering legislation banning the mandate—to amend the U.S. Constitution to prohibit the federal mandate, thus invalidating the bill.

12. Encourage noncompliance with the bill as a form of civil disobedience. There may be 17,000 new IRS agents under H.R. 3962, but there are 170,000,000 of us who oppose the bill.

As Paul Ryan said in the House Sunday night: “If this passes, the quest to reclaim the American idea is not over.  The fight to reapply our founding principles is not finished; it’s just a steeper climb.  And it is a climb that we will make.”

Let’s give ourselves a boost on the backs of the complacent and wholly unprepared socialized health care supporters who think the fight is over and they have won.

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