What's New With Obamacare?

In case you haven't heard, some monster news came down on Obamacare a week or two ago. Here's the bottom line:

Obamacare was ruled unconstitutional.

Here's the heart of the matter:

Today’s decision by Judge Vinson is another stinging defeat for the administration in its defense of Obamacare. Defenders of the health care bill had tried to paint any legal challenge as “frivolous.” When then-Speaker Pelosi was asked by a reporter “where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate,” Pelosi responded incredulously, “Are you serious? Are you serious?” To wit, Judge Vinson offered a serious response, striking down not only the mandate, but the whole of the health care bill.

In a 78-page opinion, Judge Vinson dissects the two major claims at issue in this case: whether Obamacare violates the spending clause, particularly the coercion principles announced in South Dakota v. Dole, and whether the mandate to purchase health insurance violates the Commerce Clause.

On the first claim, Judge Vinson sided with the administration. In the second, he offered a detailed analysis of the law which reads like a treatise. Rather than picking and choosing his cases, as many proponents of Obamacare like to do, he went through all of the relevant case law at length before concluding that the mandate violated the Commerce Clause. He correctly observed that “it would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause.” He then concluded that “the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit. The individual mandate cannot be severed.” As such, he appropriately struck down the entire law.

And that there's the kicker. Apparently, there's a legal term called 'severability', which basically means that if any part of a law is ruled unconstitutional, the rest of it still stands. Without a severability clause, if any part of a law is ruled unconstitutional, the whole thing gets chucked. That's what happened here - no severability, so it all got chucked.

In addition to the 26 states suing to opt-out of Obamacare, ten states are attempting to outright nullify the law, which is considered by many to be the crown jewel of socialism.

Naturally, President Obama threw a most unPresidential snitfit, using the following as a defense:

History and the facts are on our side. Similar legal challenges to major new laws — including the Social Security Act, the Civil Rights Act, and the Voting Rights Act — were all filed and all failed. And contrary to what opponents argue the new law falls well within Congress’s power to regulate economic activity under the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause.

Except that, well...

Quick: name the private-sector goods and services that the federal government requires in the Civil Rights Act, the Voting Rights Act, or even the Social Security Act. Answer? None. Social Security is a tax system with defined benefits payouts from the government, and no one doubts that the federal government has the power to tax. The Civil Rights Act and the Voting Rights Act require the federal government to enforce the Constitution, not citizens to buy sample ballots or shop at certain stores. The entire response is a big non-sequitur — and if this is how they defended ObamaCare in Vinson’s court, small wonder they lost, and lost big.

Remember, the key argument here is the government's authority to regulate commerce, which is clearly outlined in the Constitution. Problem is, that authority only applies to commerce that is already taking place. What Obamacare would do -- or, more precisely, what the individual mandate requiring every American to purchase health insurance would do -- would force commerce to materialize where it did not exist before. That's an entirely different thing, and well outside the authority of the Constitution. In short, if the government can legally require all American citizens to initiate commerce for any reason whatsoever, then there is literally nothing that the government cannot require all American citizens to do (or not do).

This is why those who are fighting Obamacare are doing so partly on the basis of it being a line-in-the-sand issue for individual freedom in America.

But this ruling is just one of an increasing number of lower court decisions that will ultimately come down to one whopper of a judicial battle that will be one for the history books:

There’s no question that the Supreme Court will eventually take this matter up, and given how profound the constitutional objection to the mandate is, there’s no chance that they’ll let “deference” to lower-court rulings shape their opinion on the matter. What we’re doing with these district court rulings — which now stand evenly split on ObamaCare, two finding it constitutional and two not — is going through the procedural motions until the Supremes get down to business. The only bit of significance these decisions might have is that they may move the Overton window of possible outcomes in Anthony Kennedy’s mind. After O-Care was passed, I remember some constitutional law experts citing the Court’s liberal Commerce Clause jurisprudence and claiming that they’d probably uphold it on something like an 8-1 vote. That seems impossible now; I’d bet 6-3 at worst, with a very fair chance of a 5-4 win for conservatives. The more anti-ObamaCare lower court rulings there are, the more political cover Kennedy has to vote with the conservative wing of the Court if he’s so inclined. If.

Time will tell.

But the plot thickens even more. After the repeal easily passed the House, Senate Republicans managed to bring it to a vote despite the Democrats' pledge it wouldn't happen. Not surprisingly, all Reps voted for it and all Dems voted against it. That should provide a great club for 2012 campaign commercials. I hope the GOP keeps bringing it up and forcing the Dems to defend something that most Americans still don't want.

Oh, and remember those waivers that the Obama administration likes to hand out to its most favoritest unions and companies on account of how Obamacare would be prohibitively expensive and therefore would threaten the company's existence? At last count it was over 200...now it's spiked to over 700! And waivers are also being granted to soon-to-be victims of the Obama administration's environmental policies. More on that soon...

But, until then, let's examine a preview of Obamacare's practical reality:

For more than six months, breast cancer patients have been stuck in a horrible limbo, being forced to wait and watch the rationing battle over Avastin play out in a debate between government bureaucrats with little concern for their well being at the Food and Drug Administration (FDA). There has been an ongoing battle between victims rights groups, families of cancer victims and the FDA specific to the drug, and other life saving drugs. The stakes could not be higher when you are talking about a debate over a drug that has proven to extend the life of cancer patients. Expect this debate to expand to other drugs and services if ObamaCare is allowed to continue to exist.

Conservatives are against big government and the federal goverment spending your tax dollars on health care. It is wrong for the government to spend so much money on drugs and health care services that cause massive inflation for drugs and care for those paying with after tax dollars. Just try to fill a prescription without health care insurance and you will feel the sting of health care inflation. Things would be much better if the federal government just got out of the business of spending your tax dollars on health care services and drugs.

That being said, cancer patients should be left harmless from our dysfunctional health care system. Yes, these life saving drugs carry a high cost, yet they are extending life. These cancer patients did not set up our government heavy health care regime and they should not pay the price for a government run health care system experiencing massive inflation.

The FDA is forging forward to de-label the drug Avastin, which means that unless they change their mind in the appeals process, Medicare will soon refuse to pay for the cost of it. Furthermore, since private health insurance takes their cues from the government most private health insurance plans are likely to stop covering this drug as well. The drug has proven to work and the FDA is basically saying that costs is a factor in approving the life extending drug.

This is a preview to the world we shall live in under ObamaCare. If the law is not stricken from the law by the U.S. Supreme Court, expect this fact pattern to repeat over and over again. If the FDA stands by this move the drug will still be available to those who can afford it, but for those who can’t it’s a different, potentially tragic, story.

The Brits have the National Health Services program that openly rations care. The designers of Obamacare worship at the altar of the British health care system. One of those worshippers, President Obama’s head of Medicare and Medicaid services Donald Berwick has said the following:

The decision is not whether or not we will ration care–the decision is whether we will ration with our eyes open.

Take the case of Christie Turnage. She is a breast cancer survivor who is fighting a government rationing decision by the FDA. Expect more Christie Turnages if ObamaCare moves forward, because the government will ration care and drugs. The fight over full repeal of ObamaCare is a very important issue for those who are worried that the Avastin matter will be repeated on a mass level for every American seeking expensive care and products.

A death panel by another name is still a death panel. And that's exactly what we'll get if Obamacare isn't repealed.