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Opinion

Opinion

Health care case has Democrats reeling

April 7, 2012

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“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.”

— Barack Obama, on the constitutional challenge to his health care law, April 2

“Unprecedented”? Judicial review has been the centerpiece of the American constitutional system since Marbury v. Madison in 1803. “Strong majority”? The House has 435 members. In March 2010, Democrats held a 75-seat majority. Obamacare passed by seven votes.

In his next-day walk back, the president implied that he was merely talking about the normal “restraint and deference” the courts owe the legislative branch. This concern would be touching if it weren’t coming from the leader of a party so deeply devoted to the ultimate judicial usurpation  — Roe v. Wade, which struck down the abortion laws of 46 states — that fealty to it is the party’s litmus test for service on the Supreme Court.

With Obamacare remaking one-sixth of the economy, it would be unusual for the Supreme Court to overturn legislation so broad and sweeping. On the other hand, it is far more unusual to pass such a fundamentally transformative law on such a narrow, partisan basis.

Obamacare passed the Congress without a single vote from the opposition party — in contradistinction to Social Security, the Civil Rights Act, the Voting Rights Act, Medicare and Medicaid, similarly grand legislation, all of which enjoyed substantial bipartisan support. In the Senate, moreover, Obamacare squeaked by through a parliamentary maneuver called reconciliation that was never intended for anything so sweeping. The fundamental deviation from custom and practice is not the legal challenge to Obamacare but the very manner of its enactment.

The president’s pre-emptive attack on the court was in direct reaction to Obamacare’s three days of oral argument. It was a shock. After years of contemptuously dismissing the very idea of a legal challenge, Democrats suddenly realized there actually is a serious constitutional argument to be made against Obamacare — and they are losing it.

Here were highly sophisticated conservative thinkers — lawyers and justices — making the case for limited government, and liberals weren’t even prepared for the obvious constitutional question: If Congress can force the individual into a private contract by authority of the Commerce Clause, what can it not force the individual to do? Without a limiting principle, the central premise of our constitutional system — a government of enumerated powers — evaporates. What then is the limiting principle?

Liberals were quick to blame the administration’s bumbling solicitor general, Donald Verrilli, for blowing the answer. But Clarence Darrow couldn’t have given it. There is none.

Justice Stephen Breyer tried to rescue the hapless Verrilli by suggesting that by virtue of being born, one enters into the “market for health care.” To which plaintiffs’ lawyer Michael Carvin devastatingly replied: If birth means entering the market, the Congress is omnipotent, authorized by the Commerce Clause to regulate “every human activity from cradle to grave.”  

QED.

Having lost the argument, what to do? Bully. The New York Times loftily warned the Supreme Court that it would forfeit its legitimacy if it ruled against Obamacare because with the “five Republican-appointed justices supporting the challenge led by 26 Republican governors, the court will mark itself as driven by politics.”

Really? The administration’s case for the constitutionality of Obamacare was so thoroughly demolished in oral argument that one liberal observer called it “a train wreck.” It is perfectly natural, therefore, that a majority of the court should side with the argument that had so clearly prevailed on its merits. That’s not partisanship. That’s logic. Partisanship is four Democrat-appointed justices giving lockstep support to a law passed by a Democratic Congress and a Democratic president — after the case for its constitutionality had been reduced to rubble.

Democrats are reeling. Obama was so taken aback, he hasn’t even drawn up contingency plans should his cherished reform be struck down. Liberals still cannot grasp what’s happened — the mild revival of constitutionalism in a country they’ve grown so used to ordering about regardless. When asked about Obamacare’s constitutionality, Nancy Pelosi famously replied: “Are you serious?” She was genuinely puzzled.

As was Rep. Phil Hare, D-Ill. As Michael Barone notes, when Hare was similarly challenged at a 2010 town hall, he replied: “I don’t worry about the Constitution.” Hare is now retired, having been shortly thereafter defeated for re-election by the more constitutionally attuned owner of an East Moline pizza shop.

— Charles Krauthammer is a columnist for Washington Post Writers Group.

Comments

verity 2 years ago

If I recall correctly, when this bill was being written, a majority of Americans wanted the public option.

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beatrice 2 years ago

So what is the Republicansdon'tcare plan anyway?

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camper 2 years ago

I can understand if the bill is ruled unconstitutional.

If this is the case, President Obama should put another bill on the table (as others note above) to create a public option or expand Medicare to all. I personally would have preferred a public option. I really believe that President Obama wanted a public option, but as the process dragged on painfully and was politicized to the nth degree, he compromised. Even though I did not agree with the compromise, I strongly believe that President Obama is trying to do his best for us.

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Flap Doodle 2 years ago

Hey, there hasn't been an HR-676 post on this thread for hours. Somebody is slacking.

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Armstrong 2 years ago

When this debacle of a bill is found unconstitutional maybe the hopey changey crowd will start to wake up to the rest of this bogus bill of goods they have been sold.

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FalseHopeNoChange 2 years ago

Is The Flexible Obama's, who is 1/2 Kansan, "stash" digital?

Most people don’t believe cash will ever disappear.

But the truth is, it’s already happening.

According to The New York Times, billions of dollars are being shredded by the Government… far more than they replace.

And there’s a bill circulating through Congress – introduced by a powerful Texas lawmaker – that would remove legal tender status from U.S. coins and Federal Reserve Notes.

I can’t guarantee your wealth will survive a rapid switch to digital money.

But you’ll be a lot better off if you’re prepared for what’s coming.

(form a source)

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tomatogrower 2 years ago

The Democrats are going to be reeling with victory, Let's say the court throws out the whole act- all those people who couldn't get insurance because of pre-existing conditions, all those parents who will have to drop their children who can't get a job in today's market with insurance, all those insurance companies trying to keep most of the money for profits instead of medical care. Hmmm. I think there will be a lot of people ready to vote against those Tea Party liars, who said the law would bring on death panels and federal sales taxes on home sales.

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Cait McKnelly 2 years ago

"Health care case has Democrats reeling." Only in your little pea brained mind, Krautie. Wishful thinking much? I really want to know why Clarence Thomas hasn't recused himself from this.

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Liberty_One 2 years ago

What's hilarious is that some people actually think the US has a free-market health care system or at least something close to it. Apparently free market means regulated and funded by the government these days.

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Windemere 2 years ago

It's not persausive to simply repeat over and over again that healthcare is expensive and getting more so and that Republicans should be condemned because they "don't care." Just about every aspect of Obamacare involves shifting the expense from one person or group to another. The deep pockets are the tax payers -- middle class taxpayers. Many ways to address the problem exist but haven't been tried (at least not in the last 60 years) such as: reduce regulations that make the insurance market less open & free, tax credits to help people pay for insurance, enact policies that encourage insurance to NOT be tied to employment. My understanding is that the reason that it's tied to employment dates back to wage controls of WWII, which led to employers trying thinking up ways to compensate employees other than wages. So they began to tie insurance coverage with employment as a way to get around the interference of government. Market forces can and should help control health care costs. But they can't work if government continues to force top-down "solutions" as a way to redistribute income and benefits. It's a way to pander to the electorate, that's for sure.

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Cait McKnelly 2 years ago

Republicans care so much they have to sign their bills in secret so they don't get mobbed. http://www.huffingtonpost.com/2012/04/06/scott-walker-wisconsin-equal-pay-law_n_1407329.html?ref=tw "We will remember in November."

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Flap Doodle 2 years ago

HR-676, dead like fried chicken except in the copy/paste universe of a certain prolific poster on this award-winning website.

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beatrice 2 years ago

If "journalists" are going to insist on calling the Affordable Care Act "Obamacare," then can we start calling its opposition "Republicansdon'tcare"? That is their official platform, is it not? Under the Republicansdon'tcare plan, those without insurance get to stay without insurance. Those driven into bankruptcy by high medical costs are just proof that the free market works. Your child is out of high school but not in a job that provides insurance and you want them covered under your plan? -- don't ask Mitt, because the Republicansdon'tcare about you. They only care about themselves.

Remember, this November: Obama Cares, Republicans Don't.

This message paid for by the WeCareForAmericaPAC.

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FalseHopeNoChange 2 years ago

Yep, It is "too bad" there are so many that "need" The Flexible Obama's "stash".

My "plan" is to do like I have done since "inception". Pay for healthcare myself.

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just_another_bozo_on_this_bus 2 years ago

Yep, Obama made a mistake by dredging up the Republican idea of mandating the purchase of health insurance, which Republicans have now decided makes a better weapon in an election year.

Too bad he didn't just expand Medicare to cover everyone-- something that the Republican Supreme Court couldn't use as an election-year bludgeon.

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Richard Heckler 2 years ago

Medical insurance cannot get any better than this:

IMPROVED Medicare Single Payer Insurance for ALL would cover every person for all necessary medical care 24/7 to include:

  • Wellness
  • prescription drugs
  • hospital
  • surgical
  • outpatient services
  • primary and preventive care
  • emergency services
  • dental
  • mental health
  • home health
  • physical therapy
  • rehabilitation (including for substance abuse)
  • vision care
  • hearing services including hearing aids
  • chiropractic
  • durable
  • medical equipment
  • palliative care
  • long term care

No deductibles No Co-pays

Allow IMPROVED Medicare Single Payer Insurance for ALL to be available now to all taxpaying consumers and let them make the choice. The mechanism is in place as we speak.

Health care in and of itself will remain a private industry.

IMPROVED Medicare Single Payer Insurance for All leaves choice of doctors,clinics,hospital and services across the board to the consumer.

http://www.healthcare-now.org/

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Richard Heckler 2 years ago

Healthcare Reform Report Card

Let's Compare: Single-Payer (HR 676 and S 703) Expanded Medicare for All Vs. Proposed Healthcare “Private insurance with Public Option” http://www.healthcare-now.org/docs/spreport.pdf

http://www.pnhp.org/facts/single-payer-resources Physicians for a National Health Program

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Richard Heckler 2 years ago

Never Mind the Mandate We Still Need Medicare for All

The Supreme Court will rule on the constitutionality of the individual mandate portion of the Affordable Care Act, or Obamacare, in June.

Regardless of the Supreme Court's decision, we will still be left with an inadequate healthcare reform law.

Send an email to Congress and the President now saying: with or without the mandate, we still need Medicare for all.

We must act now. With the ruling on the constitutionality of the ACA, healthcare reform is once again on the minds of Congress, the President, and the general public.

http://www.healthcare-now.org/

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jhawkinsf 2 years ago

Let us suppose something. Suppose this health care plan was the best plan ever. Suppose it would reduce costs while at the the same time providing a much higher standard of care. Suppose everything good you could possibly imagine and attach it to this health care bill. With the one exception that it is unconstitutional. Now what?

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its_just_math 2 years ago

"Change" even the Supreme Court can not believe in. Powerful stuff. This has infuriated The Anointed One beyond comprehension. Shows what a joke he is even more. This may get him the "symapthy" vote though. His supporters are emotional creatures. His supporters need a helping hand.

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Michael LoBurgio 2 years ago

The gop teapublican health care plan?

If you get sick hurry up and die.

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Michael LoBurgio 2 years ago

            Affordable Care Act Repeal Would Have Immediate Consequences

Programs that help people file appeals and request external reviews.

Consumer Assistance Program The Affordable Care Act improves the services that some states provide to help people with insurance problems. Grants have allowed states to strengthen and grow programs that assist consumers with enrolling in a health insurance plan and with filing complaints and appeals.

More value for the insurance dollar A provision of the law called the 80/20 rule requires insurance companies to spend at least 80 percent of their premium dollars on medical care. If they don't, they must provide consumers with refunds starting this summer.

No insurance cancellations for honest mistakes Insurance companies are not allowed to rescind coverage when patients make honest mistakes on their insurance applications. Before the Affordable Care Act, insurance companies could retroactively cancel patients' policies because of unintentional paperwork errors with little medical bearing.

Expanded Medicare coverage The law gives elderly adults who face the Medicare coverage gap a 50 percent discount on prescription drugs covered by Medicare Part D. Seniors will receive additional prescription drug savings until the coverage gap is closed in 2020.

Indian Health Care Improvement Act reauthorized The law reinstates the Indian Health Care Improvement Act, which provides resources to curb the health care disparities faced by American Indians. Originally passed in 1976, the act was last reauthorized in 1992 and many of its provisions expired in 2000.

Tanning salon tax The Affordable Care Act imposes a 10 percent tax on tanning beds, and these proceeds help underwrite other provisions of the law.

Expanded coverage for young adults on their parents’ plans The law requires insurance plans that offer coverage of dependents to allow children to stay on their parents' plans until age 26. Adult children can be covered on their parents' plans even if they are married, eligible for work or student insurance, living away from home or financially independent.

http://www.huffingtonpost.com/2012/04/03/affordable-care-act-repeal_n_1400009.html?ncid=edlinkusaolp00000003

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Michael LoBurgio 2 years ago

           Affordable Care Act Repeal Would Have Immediate Consequences

Increased coverage of preventive services Many health insurance plans are now subject to new rules that require them to cover recommended preventive services without charging a co-payment. As a result, consumers pay nothing for services like routine screenings, vaccines, counseling, flu shots and well-baby and well-child visits from birth to age 21.

Birth control coverage One aspect of the preventive care coverage -- and among the most discussed provisions of the new health care law -- is the requirement that health insurance plans cover contraceptive services. After a widely publicized effort by religious leaders and Republican lawmakers to repeal this measure, the Obama administration announced a compromise that shifts the cost of contraceptive coverage from employers to insurance companies.

Restrictions on lifetime and annual limits The Affordable Care Act prohibits insurers from placing lifetime limits on most benefits that consumers receive and sets a minimum for annual dollar limits. By 2014 annual dollar limits are slated to be phased out entirely.

Coverage for children with pre-existing conditions Under the new law, insurance companies cannot deny coverage or limit benefits to children under age 19 because of a pre-existing condition or disability. Starting in 2014, people of all ages with pre-existing conditions will be protected.

Pre-Existing Condition Insurance Plan Adults who have been refused insurance coverage because of pre-existing conditions and who have remained uninsured for at least six months are eligible for the Pre-Existing Condition Insurance Plan. The program covers primary and specialty care, prescription drugs and hospital visits without requesting higher premiums for pre-existing conditions.

No health plan barriers for ob-gyn services Health plans cannot require women to get a referral from a primary care doctor before seeking ob-gyn services.

Access to out-of-network emergency room services The Affordable Care Act prohibits a health plan from charging higher co-payments for emergency room visits in hospitals outside of the plan's network. Patients are also exempt from needing a plan's approval before seeking out-of-network emergency care.

http://www.huffingtonpost.com/2012/04/03/affordable-care-act-repeal_n_1400009.html?ncid=edlinkusaolp00000003

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cato_the_elder 2 years ago

Obamacare is patently unconstitutional. Its brilliant drafters, including the Constitutional Law Professor-in-Chief himself, failed to observe that it contained no severability clause, which was discovered after it was passed because no one in charge had read the legislation before it was passed. Under those circumstances, Obamacare should be stricken in its entirety as unconstitutional.

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FalseHopeNoChange 2 years ago

The Flexible Obama is doing the best he can.

What did anyone expect from a "community organizer" who is half Kansan? Everybody and their brother know Kansas is "as bigoted as you get"

But, all that aside. He is "perfect" for New America. There are so many that need his "stash" and have been and are lost without it.

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BornAgainAmerican 2 years ago

One would think that a Harvard educated, constitional lawyer would understand the concepts of judicial review, separation of powers, and checks and balances. Is there a reason that Obama's scholastic records are closed?

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