Florida Decision Likely to Accelerate Higher Court Rulings

The legal challenges to the health overhaul law have gone from quixotic to indisputably serious with U.S. District Judge Roger Vinson’s blockbuster decision on Monday declaring the entire law unconstitutional.

The White House reportedly was caught off guard, but quickly “went into a full convulsive rage” at Vinson, Jonathan Turley of George Washington University writes in USA Today.

Turley writes that the administration was ultimately to blame. He says the White House “played a game of chicken over health care with the court and lost a critical battle in Florida. Instead of inserting a ‘severability clause’ designed to protect an act from this type of global rejection, the legislation was rammed through a divided Congress with diminishing public support.”

“Even for some of us who support national health care, the bill unnecessarily triggered the constitutional fight that led to its rejection in two federal courts … Even if one accepts that the removal of the clause was just some colossal, inexplicable blunder, it was the blunder of the White House and Congress — not the courts,” Turley, a supporter of the health overhaul effort, writes.

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So what’s next? Florida and Wisconsin, two of the 26 states that were plaintiffs in the Florida case, have said they believe it means they don’t have to implement the law, although at least Wisconsin seems to be backing off that position today. The Florida decision likely means that the higher Circuit Courts of Appeals and ultimately the U.S. Supreme Court will be asked to accelerate their rulings.

White House “rage” and partisan attacks aside, Judge Vinson’s decision is gaining widespread respect for his “exhaustive and erudite opinion [that] is an important moment for American liberty,” according to an excellent Wall Street Journal editorial.

We have argued for the entire 15 year history of the Galen Institute that the struggle over control of our health sector is THE fight for freedom of our generation. And the individual mandate is the apex of that battle because it goes to such a fundamental question of control over our life and liberty.

The main defense from the other side, so far as I can tell, is this: Our nation has a health care crisis. The only way to solve it is with a centralized, government micromanaged overhaul. For this Rube Goldberg apparatus to work, the government must force everyone to buy health insurance. Therefore, because we need health reform, it is “necessary and proper” ? and therefore constitutional ? for the government to force us all to buy health insurance.

The court didn’t buy it. “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void,” Vinson concluded.

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Senate repeal effort: The Senate debated an amendment to repeal ObamaCare that Republican Leader Mitch McConnell brought to the floor this week. Every Republican voted for repeal (47) and all 51 Democrats present voted to keep the law in place. (Sens. Lieberman and Warner were absent.) This is going to make for some very uncomfortable ads for the 22 Democratic senators up for re-election next year.

During the debate, defenders of the law talked about people losing early benefits of the law as a way of justifying upholding the whole thing. But people just aren’t buying it. Congress can enact any useful and helpful provisions separately without the avalanche of spending and mandates barreling down at us.

And it could certainly better spend $5 billion to help the uninsured with pre-existing conditions than through ObamaCare’s program that is helping just 8,000 people (of the estimated 375,000 that were expected to enroll as of December).

My calculations show that, at this rate, we would be paying more than $625,000 each for these 8,000 people to get health insurance for four years when the program expires. There clearly is a better way.

And as to the 25-year-olds on their parent’s policies, insurers could still write those policies, but people would pay for them. That would be better than having tens of thousands of people lose coverage because their employers drop dependent coverage altogether, as many are doing.

The Senate did vote on Wednesday to repeal the despised 1099 mandate that would hit approximately 40 million businesses with an avalanche of paperwork. The House will act on this, but since it doesn’t take effect until 2012, it has time.

This is the first crack in ObamaCare’s armor. Many more will come as people learn more about what really is in this law.

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Political fallout: Several experts I’ve spoken with expect the Supreme Court to take up this case in its 2011-2012 term. If it were to issue a ruling saying ObamaCare is unconstitutional, this would likely diminish its impact as a hot political issue in the 2012 elections.

But if the Supreme Court were to declare the law constitutional, then it could light a fire under the political impetus to elect a new president and a Republican Senate to overturn it legislatively.

So perversely, the Obama administration could have a vested interest politically that the Supreme Court rule ObamaCare unconstitutional.

Am I missing something here?

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CLIP OF THE WEEK

As Health Reform Challenges Proceed, States Face Big Decisions

In this clip from PBS NewsHour, Thomas Miller of the American Enterprise Institute discusses the recent court rulings on the health law with host Ray Suarez and Neera Tanden of the Center for American Progress. The discussion begins five minutes into the clip.
Watch now >>

 

GALEN IN THE NEWS

Administration Playing Politics with Health Care

Grace-Marie Turner
The Sacramento Bee, 02/02/11

Is the Obama administration playing favorites in granting friendly corporations and unions waivers for health care reform mandates? It’s hard to reach any other conclusion in watching the health overhaul unfold: If you have political connections, you can be protected from some of the most onerous and costly mandates in the legislation. The latest example is the 700-plus waivers that the administration has granted to companies, labor unions, and a few states so they can escape, at least temporarily, some of the new law’s requirements to provide comprehensive health benefits to workers. A disproportionate number of those receiving waivers were labor unions that worked hard and spent millions of dollars to get the law passed. None of this sits well with the American people. They didn’t like the special deal making to pass the law, they are frightened about the costs and mandates that are barreling down at them, and they really don’t like seeing the law being unevenly applied so that some get special favors and others don’t.
Read More »

Florida Ruling Goes Further than Any Obamacare Court Decision to Date

Grace-Marie Turner
National Review Online: Critical Condition, 01/31/11

Passage of ObamaCare violated the will of the American people, and Florida District Judge Roger Vinson concluded this week that it also violates the U.S. Constitution. In a carefully documented decision, Judge Vinson ruled that the “individual mandate” — the federal requirement to purchase government-prescribed health insurance — violates the Constitution, and he furthermore said that since the individual mandate is central to the workings of the health overhaul law, it is not severable from the whole and therefore the whole law is unconstitutional. “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void,” Vinson concluded. The case will surely be appealed by the Obama administration. Meanwhile, Congress will have even more reason to investigate the processes by which the wheels of the bureaucracy continue to churn out thousands of pages of regulations to implement the law.
Read More »

HEALTH REFORM

The Nuts and Bolts of the ObamaCare Ruling
Randy Barnett and Elizabeth Price Foley, The Wall Street Journal, 02/02/11

Turning Citizens Into Subjects: Why the Health Insurance Mandate Is Unconstitutional
Randy Barnett, Testimony before the Senate Committee on the Judiciary, 02/02/11

Scorekeeping Doesn’t Work if Policymakers Aren’t Serious
Joseph Antos, The Fiscal Times, 01/31/11

The PPACA — Labor Market Incentives Economic Growth and Budgetary Impacts
Douglas Holtz-Eakin, Testimony before the Ways and Means Committee, 01/26/11

It’s Okay to Spike the Football, but Get Ready for the Next Kickoff in Higher Courts
Thomas P. Miller, National Review Online: Critical Condition, 02/02/11

ObamaCare: Down, But By No Means Out
Dean Clancy, The Daily Caller, 02/01/11

Upcoming Rules Pursuant to the Patient Protection and Affordable Care Act
Curtis W. Copeland and Maeve P. Carey, Congressional Research Service, 01/13/11

The Healthcare Debate is Far From Over
Hal C. Scherz, M.D., Physicians News, 02/01/11

How to Limit the Damage from ObamaCare — Pulling It Out Weed by Weed
Ernest Istook, The Heritage Foundation, 01/27/11

The Hot Spotters: Can we lower medical costs by giving the neediest patients better care?
Atul Gawande, The New Yorker, 01/24/11

‘Hoist with His Own Petard’ — The Individual Mandate Blows Up ObamaCare
Thomas P. Miller, The Enterprise Blog, 02/02/11

Health Reform’s Political Fallout
Patrick H. Caddell and Douglas E. Schoen, Politico, 01/28/11

PTSD’s Diagnostic Trap
Sally Satel, Policy Review, 02/01/11

How Democrats Learned to Love the Health Insurance Mandate
Merrill Matthews, Forbes: Right Directions, 02/01/11

CONSUMER CHOICE MATTERS NEWS®

Concierge Medical Care With a Smaller Price Tag
Katie Hafner, The New York Times, 01/31/11

Events

Health Care Prognosis and Prognostications
Georgia Public Policy Foundation Luncheon
Friday, February 4, 2011
12:00pm
Atlanta, GA
Grace-Marie Turner will join Rep. Tom Price, MD, for this policy briefing.

Would a Soda Tax Help Fight Obesity?
American Enterprise Institute Event
Monday, February 7, 2011
10:00am – 11:30am
Washington, DC

Opportunities for Long-Term Services and Supports in the Health Reform Law
Kaiser Family Foundation Policy Briefing
Monday, February 7, 2011
10:00am – 11:45am
Washington, DC

Drugs, DNA and You: Personalized Medicine and Genomics in the 21st Century
American University Washington College of Law Event
Tuesday, February 15, 2011
10:00am – 3:00pm
Washington, DC

Reforming Medicare at Last
American Enterprise Institute Event
Friday, February 18, 2011
9:15am – 11:30am
Washington, DC

Deciphering the Marketing Impact of Health Care Reform
University of St. Thomas Event
Thursday, February 24, 2011
7:30am – 9:00am
Minneapolis, MN

Next Steps in Health Reform
KaiserEDU Essay Contest
Monday, February 28, 2011

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