Sunday, April 15, 2012

Obamacare at the Supreme Court.

* There were some memorable lines from the Supreme Court hearings on the Patient Protection and Affordable Care Act, aka Obamacare. (The law will neither protect patients nor make health care affordable, but that is another matter.) Justice Kennedy had what may be the best line, indicating that the mandate "changes the relationship of the federal government to the individual in a very fundamental way." Indeed, for the first time the feds would be ordering everyone to purchase a product from a private company or state run exchange. Yes, I know the States require the purchase of various things: car insurance, motorcycle helmets, and on and on. But if you do not drive a car or motorcycle, you need not make those purchases. And it goes to the very nature of our republic as to whether or not the constitution limits the federal government to enumerated powers, with plenary power reserved to the states; and whether the power of the states and the rights of the individual are superseded by an all powerful central government.

Solicitor General Donald Verrilli Jr.: "Virtually everybody in society is in this market," explaining why ordering people to buy insurance is different than other products. But there were so many assumptions made in these hearings. Even if virtually everyone does enter the market at some point in their lives, there are studies that have suggested that about 20% of the population uses about 80% of the healthcare services. If so, should this unequal distribution be a factor in assessing costs?

Justice Ruth Bader Ginsburg: "The people who don't participate in this market are making it much more expensive for the people who do...and the result is that everybody else's premiums get raised." Even if she is right, do we confer constitutionality on a statute just because it might control costs? Can Congress pass laws limiting what any product can cost, or order the purchase of products by all, to keep the prices down? And is the Justice right, or is it just another assumption? Mark Levin a couple of weeks ago was discussing how government interference in the healthcare market is what is keeping prices high. States, and now the feds with Obamacare, have had certain requirements of what every health insurance policy must provide, regardless of whether the purchaser wants or will ever use that service. The insurance companies then pass along the costs of those services. And what about Medicaid (Medi-Cal in California) and Medicare? Doctors and hospitals are limited in what they are paid by those two programs, regardless of the doctor's or hospital's actual cost. So the rest of us get to make up the difference in higher prices.

Justice Antonin Scalia: "Everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli." Maybe, maybe not. But does anyone have any doubt that once the door is opened to the feds to allow them to order you to buy one thing, it is now wide open for whatever a future Congress and President see fit to order you to purchase or to do? And why not broccoli, if it can be shown that the beneficial health effects help cut down on the use of healthcare services?

* The LA Times. In their 3/26/12 editorial they say that the mandate "is a key piece of a broad effort to fix a healthcare system that is too expensive, inefficient and inaccessible to too many Americans." For this reason, they say, the mandate should be upheld. This does not address the constitutionality issue at all. Rather, it reflects typical leftist thinking that the ends justify the means. They believe Obamacare is a good idea and therefore it should be upheld. They do argue that government orders the purchase of car insurance and motorcylce helmets - but see the discussion in the first paragraph explaining the nature of our Republic, which the Times does not seem to get.

* The New York Times. In their 4/1/12 editorial they say, in reference to the Roberts Court: "There has been no court less restrained in signaling its willingness to replace law made by Congress with law made by justices." Except they don't really mean it - it's a lie. They would be fine with the court overturning The Defense of Marriage Act, as well as numerous other laws passed by Congress. And they would not call it "replacing law made by Congress with law made by justices." Rather, they would be lauding the justices for their "courage." In any event, their basic supposition about the Roberts Court is a lie. Roe vs. Wade found a right to abortion based on a right to privacy. Except that the Constitution mentions neither privacy nor abortion. Was the court deciding Roe engaging in "law made by justices?" Did the Roe court feel itself constrained by laws duly made by legislative bodies?

* The Investor's Business Daily. In their 3/28/12 editorial, the IBD notes that Obama ridiculed Hillary Clinton in the 2008 primaries when she argued for a healthcare "mandate." Said candidate Obama, if a mandate was a solution then "we could try that to solve homelessness by mandating everybody buy a house..." Except, the mandate became imperative for him a year later, so which time was he lying? The IBD cites a report by two professors concluding that Obamacare's "combination of high taxes, large subsidies and extensive mandatory contractual terms seems likely to eventually drive most private insurance plans out of business." I always thought that the goal of Obamacare was to destroy the private health insurance market, thereby making it mandatory for Congress to put in a "public option." Only by then, it would not be an option - it would be the only coverage available.

* The Investor's Business Daily. In their 4/3/12 editorial, the paper discusses the costs of Obamacare. Originally, it was projected to cost $940 billion dollars in its first ten years. Except, the first two years had virtually no costs; so the CBO now projects costs for the next ten years to be $1.76 trillion dollars. Almost double. There's a shocker - a government program that costs far more than original projections. Are your insurance rates up? Obama originally said that families would save $2500. per year. But a Kaiser Family Foundation study has found that average costs are already up $2200. per year. Notes the IBD: "Increased health insurance coverage is not the same as better health, nor does wider coverage guarantee lower medical costs."

* President Obama. "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." Wow. Not bad - Obama managed two lies in one sentence. Congress barely passed Obamacare; 219 to 212 in the House, with quite a few democrats voting against it. It passed in the Senate when Harry Reid bribed certain senators in order to get their vote. Not a single Republican in either house voted for it. So, no, it did not pass by a "strong majority." And "an unprecedented, extraordinary step" if the Court overturns the law? Not only incorrect, but as Obama taught constitutional law, he knew full well it was an untruth. For 209 years, since Chief Justice John Marshall wrote in Marbury vs. Madison, the Court has the inherent power of "judicial review." Were it otherwise, then any Congress could pass any law contrary to the Constitution and that law would stand, effectively negating the Constitution as the supreme law of the land. The Constitution would just be the first "law" passed, and could be superseded any time Congress passed a contrary law. No need for Amendments.

* My take. Sadly missing from much commentary favoring Obamacare, even by lawyers and law professors, is whether or not the use of the Commerce Clause to justify this legislation is good for the country. Those on the left point to the use of the Commerce Clause for at least seven decades (if not ten or more) to justify expansion of federal power. In 1942 the case of Wickard vs. Filburn came before the U.S. Supreme Court. Filburn was a farmer in Ohio who grew wheat for himself and his family and his farm animals. But the Department of Agriculture fined him for growing more wheat than he was allowed by the Agricultural Adjustment Act of 1938. Congress said the act was authorized by their power under the Commerce Clause. The Supreme Court upheld the fine saying that Filburn's use of his own wheat meant he did not have to purchase wheat in commerce - thereby affecting commerce. Also, he "might" decide to sell the wheat in commerce. This was an awful decision. The Court was allowing the feds to fine a citizen for growing wheat on his own farm. It was a sad day for the rights of property owners, and for individual liberty. So without questioning whether or not this was a wise decision, the left uses this as a basis for arguing for almost any expansion of federal power under the Commerce Clause.

And the left is right in that regard. If the Court believes Filburn was rightly decided, they could easily then uphold Obamacare. After all, healthcare affects interstate commerce. And not buying insurance can affect the market like not buying wheat (because Filburn grew his own). If Obamacare is ruled unconstitutional, it will be by a 5-4 vote, as the four liberal justices believe as the LA Times (see above) and those on the left often do - that the ends justify the means. If Obamacare is upheld, it could by a 5-4 vote (with Kennedy being the swing vote either way), but it could also be a 6-3 vote. The Chief Justice votes last. If he sees that Kennedy is siding with the four liberals he could decide to go with the majority. The reason would be that when the Chief Justice is in the majority he can assign the writing of the majority opinion to whomever he wants to, including himself. Therefore, the decision can be as broad or as limited as the Chief wants.

So what's with Obama? How could he make such a bold statement about the Court's power that was so wrong? He taught constitutional law, after all. Lots of excuses and explanations were made by the White House and Obama's supporters in the mainstream media. Of course, all the explanations were nonsensical because, again, Obama taught constitutional law. The criticisms from the right mostly suggested that Obama was trying to bully the Court into upholding the law. But missing from the analysis is a simple explanation: as someone on the left Obama believes that the ends justify the means. Looked at from this perspective it explains why it would be a non-issue for Obama to so blatantly lie about the size of the majority vote, and the Court's power to overturn the law. It explains why, in my opinion, Obama lies far more often than other Presidents have, and feels comfortable doing it. Even when the lies are so obviously and transparently wrong, he "knows" he is defending a "just" cause. That is why he can go out there and say what he does with a straight face, and undoubtedly sound convincing to the uninformed. And given that the mainstream media will never call him on any of his lies (remember "Bush lied, people died") Obama knows he is safe in continuing with his intellectual dishonesty.