Wednesday, February 2, 2011

What is really going on with the latest Health Care ruling?

For months, progressives smugly labeled the legal challenges to ObamaCare as "silly" or even "frivolous." Today their confidence must be severely shaken.

Late Monday afternoon in Pensacola, Fla., U.S. District Court Judge Roger Vinson delivered the second major judgment that the centerpiece of the Patient Protection and Affordable Care Act—the "individual mandate" that forces Americans to buy health insurance whether or not they want it—is unconstitutional.

In December, District Court Judge Henry Hudson ruled against the mandate in a separate lawsuit brought by the state of Virginia. But Judge Vinson's sweeping and powerfully reasoned decision this week went much further, striking down the entire health-reform law on the grounds that the individual mandate was not severable from the rest of the statute. And the plaintiffs in Judge Vinson's courtroom included the attorneys general of 26 states, not just one. His opinion thus casts a dark shadow over ObamaCare until the Supreme Court issues a final ruling on the matter.

Consider the problems posed by the insurance mandate. The Obama administration argued that it was supported by the Commerce Clause, which gives Congress the power to regulate interstate commerce. True enough, insurance is commerce, but not buying insurance is the antithesis of commerce. Commerce has always been understood as requiring economic activity. This was the rationale Judge Hudson adopted in striking down the individual mandate in the Virginia case.

The government's lawyers in the Florida case insisted that not buying health insurance was somehow different from a failure to buy other products like clothes or food. They said health insurance was "unique" because, eventually, everyone will seek and obtain health care. And if they aren't insured, the costs will be shifted onto others, thus substantially affecting commerce.

Judge Vinson rejected this argument, recognizing that "not consuming" other products, such as food, is also unavoidable and can have substantial effects on other commercial markets. "There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort," he wrote. "The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that—when aggregated with similar economic decisions—affect the price of that particular product or service and have a substantial effect on interstate commerce."

Recognizing the vulnerability of relying on the Commerce Clause alone, the Obama administration in the Florida case shifted its emphasis to the Necessary and Proper Clause of the Constitution. That clause empowers Congress to enact "all Laws which shall be necessary and proper for carrying into Execution" its enumerated powers. As the Supreme Court has repeatedly explained, the Necessary and Proper Clause does not expand the scope of Congress's enumerated powers. Instead, it gives Congress the ability to select among various means of exercising them—for example, the enumerated power to "establish post offices" necessarily and properly includes a power to print stamps.

The Obama administration claimed that the individual mandate is a necessary and proper means of carrying out its reforms in the health-insurance market. These reforms include requiring insurers to offer coverage to those with pre- existing conditions, to extend coverage to dependents up to age 26, and to eliminate lifetime coverage caps. Because these reforms make health insurance more expensive, the government's lawyers claim that unless everyone is forced to buy health insurance, too many healthy people will sit on the market sidelines as "free riders" until they become ill. So in order to make the "reformed" health-insurance market work, it's necessary and proper to force everyone to buy insurance.

Judge Vinson flatly rejected the administration's attempt to escape the restrictions of the Commerce Clause by appealing to the Necessary and Proper Clause. His decision acknowledges that, while reforming an insurance market is a regulation of commerce, Congress cannot artificially create its own "free rider" crisis in the insurance market and then use that crisis to justify an otherwise unconstitutional mandate as "necessary and proper" to save the market from collapse.

This novel use of the Necessary and Proper Clause, if allowed to stand, would fundamentally transform our constitutional scheme from limited to unlimited federal power, narrowing the scope of individual liberty. In Judge Vinson's words, "the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause. This result would, of course, expand the Necessary and Proper Clause far beyond its original meaning, and allow Congress to exceed the powers specifically enumerated in Article I."

Rep. Marsha Blackburn on the health-care ruling.

One crucial difference between the Florida and Virginia decisions relates to the breadth of the remedy. While both courts agreed that the individual mandate was unconstitutional, the Virginia decision merely declared the mandate alone to be unconstitutional—the rest of ObamaCare was unaffected. But Judge Vinson concluded that the individual mandate could not be "severed" from the rest of the law, and so the entire law must be struck down.

The judge had little choice: The Obama administration itself argued that the individual mandate was inextricably intertwined with the rest of ObamaCare. So if the mandate fell, the whole scheme was doomed to collapse as a legal matter. "There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions," he held, "for me to try and dissect out the proper from the improper, and the able-to-stand-alone from the unable-to-stand-alone."

The Obama administration attempted to cloak an unprecedented and unsupportable exercise of federal power in the guise of a run-of-the-mill Commerce Clause regulation. When the weakness of that theory was exposed, it retreated to the Necessary and Proper Clause and the taxing power. Judge Vinson's decisive rejection of all these theories is another significant victory for individual liberty—the ultimate purpose of federalism—and it lays the intellectual groundwork for every decision on the mandate yet to come.

Mr. Barnett is a professor of constitutional law at Georgetown University Law Center. Ms. Foley is a professor of constitutional and health care law at Florida International University College of Law.

Sunday, January 30, 2011

More consequences of the New Health Care laws

Health insurers in 34 states have stopped selling child-only insurance policies as a result of the health reform law, and the market continues to destablize.

According to a survey of state insurance departments by Republican Senate committee staff and obtained by POLITICO, states that have seen carriers exit the market include those that have been ardent supporters of the health reform law, like California and Oregon. Twenty states now have no insurers offering child-only policies.

Since September, the health reform law has barred insurers from withholding policies to children under 19 who have a pre-existing condition. Rather than take on the burdensome cost of writing policies for potentially-pricey medical conditions, many carriers decided to leave the market altogether.

The Department of Health and Human Services responded by changing the rule to allow states to institute an open enrollment period for child-only health insurance plans. The move was meant to stop subscribers from jumping on plans only when they were diagnosed with a medical condition.

But the regulation seems to have done little to stop carriers from leaving the market.

“We only know of one company [a local affiliate of Blue Cross Blue Shield] offering child-only health insurance,” Dan Honey, Deputy Commissioner for Life and Health in the Arkansas Department of Insurance, said Thursday. “The actual law federal law requires no underwriting for pre-existing conditions, which means guaranteed issue. Of course once HHS came out with that directive, that’s when a lot of companies started balking.”

One of the largest insurance markets in the country, Texas, has seen all their carriers drop child-only health insurance, as have other large states including Florida and Illinois.

Other states that no longer have carriers selling child-only plans include Alaska, Arizona, Connecticut, Delaware, Georgia, Minnesota, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Rhode Island, South Carolina, Tennessee, Utah, West Virginia and Wyoming, according to the investigation by GOP staff on the Senate Health, Labor and Pensions Committee.

Sen. Mike Enzi (R-Wyo.) pressed Health and Human Services Secretary Kathleen Sebelius on the issue at a Thursday morning hearing.

“It’s absolutely devastating,” Enzi said. “The outcome is predictable as a result of the drafting that would allow people to buy a policy on the way to the emergency room.”

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Sunday, January 23, 2011

Please! Put a sock in it for a bit, Sarah!

Why America is growing tired of Palin


January 20, 2011|By Gloria Borger, CNN Senior Political Analyst

OK, you've got Palin fatigue. Not to worry. So does much of the country: The latest CNN poll shows that 56 percent of Americans view her unfavorably.

More damaging, though, is this: Sarah Palin's unfavorable rating among women has gone up 10 points. And 59 percent of those all-important independent voters don't like her -- and that's up a stunning 14 points in just a few months.

You might argue it's because of the debate surrounding the Tucson shootings -- specifically, Palin's tone-deaf response to the unfair charges that she was somehow responsible for a deranged shooter's state of mind. And that could well be part of it. But there's more: She's completely overstayed her welcome.

We've watched her morph from the hockey mom into a multi-media extravaganza that knocks on our door every day to sell something, without any invitation.

When Sarah Palin was air-dropped onto the national scene, she was just what the GOP ordered. Republicans were looking for something new to cheer about. In Palin, they found it -- along with a reason to support John McCain. McCain's views on certain issues were, well, complex. Palin's were not. She was a burst of energy, a breath of fresh air, a new flame (pick your cliché) that attracted new supporters for a troubled campaign.

McCain lost, but Palin won.

Now, something is changing. Her staunch supporters are still there, to be sure, but Republicans are getting antsy, even nervous. In GOP circles, she's beginning to be seen as toxic in any presidential race. The whispers (which have always been there among the establishment) are starting to become public.

The editorial page editor of The Washington Examiner -- which defended Palin in the 2008 campaign -- opines about the "public exhaustion" with Palin. Mark Tapscott notes how Palin "has been here, there and everywhere for several months" and how "too much of a good thing becomes a bad thing when there is no escaping the good thing." Exactly.

Even the politicians, ever the lagging indicator, are starting see some benefit in chipping away at the Palin veneer. After all, there's now a sense that she's maxed out. There's nothing she can say anymore to woo new people who are not already in her corner.

So why not try and get the rest? How else to explain presidential wannabe Newt Gingrich's admonition the other day that Palin "should be more careful and think through what she's saying and how she's saying it?" This coming, of course, from a man who once compared himself to Napoleon. Or likely GOP contender Tim Pawlenty's admission that Palin's move to put cross hairs on a map of the districts of vulnerable Democrats "wouldn't have been my style"?

These men read the polls. They understand that any unfavorable rating above 50 percent is almost impossible to undo. And while they don't want to alienate Palin's supporters -- they have to win in GOP primaries, after all -- they clearly believe that criticizing Palin, even meekly, is no longer a fool's errand. "She's an enormous problem for us," says one GOP strategist. "She has a loyal following, and any time you criticize her, it convinces her followers she is more right. And you get demonized."

All of which explains the GOP tiptoeing. GOP presidential contenders may be trying to wait and see if she runs. (Why alienate her followers for no reason?) Or, they would love to see someone take her on -- like a Mike Huckabee, for instance -- with the understanding that the candidacy could become sacrificial. So who is going to sign up for that?

Not many. The hope for some Republicans is that Palin will literally tweet her way out of our hearts. The books, the reality TV, the family psycho-dramas, the never-ending internet "thought bubbles" could just be enough to drive even those who like her over the edge. And, sure, we in the press are part of this uber-coverage, behaving as if every 140-character thought is worth some conversation. It isn't. As Erick Erickson, the editor of the conservative and a CNN contributor, told me, it's not really about what Palin has achieved. "By 2012," he says, "people are going to be so tired of her they're going to want to avoid eye contact. It's not fair, but it's reality."

And there's one more thing we can't forget: Voters actually like positive leaders who inspire them. Relentless negativity can work, to be sure. Yet in the end, Americans gravitate to those who make us feel good about who we are capable of becoming.

Successful candidacies and presidencies are not just about the foibles of the opposition. They're about our own ability -- as John McCain was fond of saying -- to become a part of something greater than ourselves. Palin, alas, is still stuck on the "me" part.

Today is the 50th anniversary of John F. Kennedy's inaugural address. Its idealistic calls for national service and civility -- combined with a dedication to human rights and commitment to the control of arms -- remain an eloquent definition of our national aspirations.

It was short, but no tweet.

The opinions expressed in this commentary are solely those of Gloria Borger.