“This change works well as part of an incrementalist strategy to destroy the private insurance market–especially patient-driven healthcare. I realize that may sound cynical. But the far left has made no secrets about its desire to create a single-payer system and to use a strategy of patient trench warfare (no pun) to create it. Obamacare was a major advance towards that end and, tactically, the eventual destruction of HSAs must figure in to said strategy.”
“Aerospace giant Boeing is joining the list of companies that say the new health care law could have a potential downside for their workers. In a letter mailed to employees late last week, the company cited the overhaul as part of the reason it is asking some 90,000 nonunion workers to pay significantly more for their health plan next year.”
This morning, Judge Henry E. Hudson of the Eastern District of Virginia presided over a summary judgment hearing for Virginia v. Sebelius. This case is the Constitutional challenge filed by Virginia Attorney General Ken Cuccinelli against ObamaCare, and shouldn’t be confused with the multi-state suit filed in Florida by over 20 Attorneys General. Both sides squared-off for just under three hours, and OCW was lucky enough to get a seat in the crowded courtroom.
Virginia’s case was argued by its Solicitor General, Duncan Getchell, Jr., who concentrated on two major arguments, both on the main theme that the individual mandate is a power grab by the federal government that is not authorized by the Constitution’s enumeration of powers. First, that the mandate is an “unprecedented’ and “unlimited” expansion of the Commerce Clause. Second, that the mandate cannot be justified as part of Congress’s taxing authority. Given the judge’s previous rulings and his questions and reactions at today’s hearing, it’s warranted to be cautiously optimistic that Judge Hudson is favorably disposed to the argument.
According to Getchell, the most unprecedented aspect of the mandate is that it regulates an economic status, not an economic activity. Previous federal precedent holds that Congress may regulate economic activities that influence interstate commerce, but there are no previous precedents which support ObamaCare’s mandate which forces people to pay a fine if they are uninsured. This argument was rebutted by Deputy Assistant US Attorney General Ian Gershegorn, who spoke on behalf of Secretary Sebelius. His position is that everyone uses health care, and the mandate forces people to buy insurance, which is just a commodity that changes the way individuals pay for their health care. Therefore, it is an activity and thus consistent with legal precedents.
On the issue of whether the mandate is a tax, the plaintiff’s argument was very strong. President Obama and other supporters of the law consistently and vigorously denied that the mandate was a tax. The law’s text itself insists that it is not a tax. When Gershegorn argued the opposite, Judge Hudson repeatedly interrupted him to ask whether ObamaCare supporters in Congress and the Administration were deliberately misleading the American people when they said the mandate wasn’t a tax. For a video of the President getting angry with George Stephanopolous about this issue, watch this interview.
The final issue was a very technical one, which involves the “severability” of the individual mandate. If the mandate is “severable,” then the law will withstand the striking down of the mandate. If not, then once one section of the bill is declared unconstitutional, then the whole law is unconstitutional. Laws typically have a severability clause, so this is not an issue, but ObamaCare was passed in such a rushed and reckless manner that it was overlooked. If the mandate is upheld, this point will be moot, but if it isn’t then this issue is crucial.
As the judge concluded the hearing, he said that he plans to make his decision by the end of the year, so keep watching the “Legal Challenges” section of ObamaCare Watch for the latest updates. For more information about this issue, visit our primer, which has material on the mandates, taxes, and legal challenges.
“In his ruling, Vinson criticized Democrats for seeking to have it both ways when it comes to defending the mandate to buy insurance. During the legislative debate, Republicans chastised the proposal as a new tax on the middle class. Obama defended the payment as a penalty and not a tax, but the Justice Department has argued that legally, it’s a tax.”
“A federal judge in Florida on Thursday ruled that challenges to the healthcare reform law’s individual mandate and its Medicaid expansion can proceed. The widely expected ruling does not mean that Florida Northern District Senior Judge Roger Vinson agrees that the law is unconstitutional, only that the arguments against it can’t be dismissed out of hand as the Obama administration had requested.”
“A federal judge on Thursday ruled that a lawsuit against the new health care law brought by 20 states led by Florida can go forward. In a 65-page ruling, the judge rejected the Obama administration’s attempt to have the suit thrown out, arguing that the states had a ‘plausible claim’ to challenge the law’s constitutionality. While U.S. District Court Judge Roger Vinson dismissed some of the states’ claims, he sided with them when it came to the central challenge to the law — that forcing individuals to purchase health insurance exceeds the government’s authority under the Commerce Clause.”
“ObamaCare was not about fixing the insurance market. It was about seizing control of it. Thus it shouldn’t be surprising that a new analysis by the Congressional Research Service says that states can use ObamaCare to erect a de facto single-payer system by simply excluding from their exchanges every plan but a state-run ‘public’ plan. ‘There is no specific language in [the president’s health plan] that would prohibit an exchange from denying certification to every private plan that applies,’ the analysis finds.”
“This paper estimates PPACA will impose an additional, hidden cost of $157 billion to $494 billion in the form of reduced economic output. Related provisions (such as the so-called ‘doc fix’) could drive the economic losses to $550 billion, or more than half of the bill’s official cost estimates. Failing to account for this hidden tax multiplier biases legislative decisions toward more costly policies.”
“A Medicare official concedes that seniors may have to dig deeper into their wallets next year thanks to the health care law. The new analysis obtained by POLITICO finds the health care overhaul will result in increased out-of-pocket costs for seniors on Medicare Advantage plans. Richard Foster, the actuary for the Centers for Medicare and Medicaid, also tells Senate Republicans that the overhaul will result in ‘less generous benefit packages’ for Medicare Advantage plans next year. Foster is independent from the administration and non-partisan.”
The Administration has a high-level staffer responsible for pitching ObamaCare who took to the White House blog and made demonstrably false statements. She claimed that ObamaCare would absolutely not tax insurance benefits, while the law specifically as a tax on “Cadillac” health insurance plans.