Patient Protection and Affordable Care Act

Obamacare, Liberty In The Balance At SCOTUS And Introducing A New Dr. Death (Or Death Panel Queen)

It's been two years and the Obama administration, its apologists on the professional left, Congressional statists and assorted liberals and left-wingers still haven't answered this question: If the federal government can require Americans to buy health insurance, what limits are there to its power? Even if it could answer that, it would have to answer the logical follow-ups:

What will it require us to buy next? How is commerce then defined if doing nothing now is commerce? Who then decides what goods and services are proper and essential to buy? 

But not to get ahead of ourselves. The Obama Justice Department has steadfastly and cautiously avoided the predicate question in the several lower court arguments in which it has engaged. After today's warm-up act arguments on the late 1800s Anti-Injunction Act (whether the case even has standing until a tax or penalty is levied), it won't have a choice in avoiding the question as it defends Obamacare in full tomorrow and Wednesday in near-historically-unique three-day hearing before the U.S. Supreme Court. It pretty much comes down to that question, because it isn't a case about health care. It's a case about liberty, one that gets straight to the constitutional text itself. Mike Brownfield of The Heritage Foundation provides an excellent overview of what to look for, the consequences of a decision either way, and the conclusions to expect at its The Foundry Blog's Morning Bell. In part, he writes:

If the Court upholds the mandate, America will be in the same position it finds itself today — facing a law that vests untold power and resources in the hands of the federal government, that transfers health care decision making from individuals to unelected bureaucrats, and that increases costs while decreasing access. In short, America’s health care crisis will get worse, not better, and future generations will be left paying the tab. What's more, if the Court allows the individual mandate to stand, it will unhook Congress from its Constitutional leash, empowering it to regulate commerce and individual behavior in new ways never before imaginable.

More than, that, though, is at stake. It's an issue not widely discussed concerning Medicaid and a complete submission of the states to the Leviathan's will at the expense of a forced financial destitution:

There is another issue, too, tied to Obamacare, and that has to do with Congress’s decision to impose new requirements on states forcing them to expand the Medicaid program and abide by the federal government’s conditions, leaving them to shoulder much of the costs while operating Medicaid according to Washington’s whims. If the states don't comply, they could lose all Medicaid funding, putting them in an untenable position in which both their autonomy and their sovereignty collapse under Obamacare’s weight. It is up to the Court to decide whether Congress overstepped its bounds.

Coincidentally, another of the Patient Protection and Affordable Care Act's hot button issues flared up earlier this month and came into full focus over the weekend — death panels. A House committee voted overwhelmingly to repeal the Independent Payment Advisory Board (aka, Death Panels) with bipartisan support (see Paul Kaminsky at The American Spectator).

While that vote didn't receive much press from the Mainstream Media (surprise!), death panels were all the talk after news broke that former Vice President Dick Cheney, at age 71, underwent a heart transplant. After all, the left complained, someone younger should've got the heart. He didn't "deserve" it. He "didn't wait long enough" (he waited 20 months, a little longer than average).

When critics of Obamacare raised concerns over bureaucrats making life and death decisions, the left vilified them as paranoid and scare mongers, and that the only people advocating them were odd balls with no credibility. That, we suppose, did not include the left's favorite economist, Paul Krugman, who gladly embraced death panels on ABC News in late 2010 (see video). It must not include Dr.  Nancy Snyderman, NBC News' medical expert, either. She lays out the "moral" case for denying Mr. Cheney his life saving transplant, as Kyle Drennen at NewsBusters.org reports. Here's the new Dr. Death (or Death Panel Queen) in her own words:

Death panels? Not on their life. But the left does want to pick who else lives and who dies.

Breaking: Cuccinelli Formally Seeks Expedited Health Care Hearing To Supreme Court

Within the last hour, Attorney General Ken Cuccinelli announced that he has formally petitioned the U.S. Supreme Court for an expedited hearing on Virginia's challenge to the new federal health care law. This is the news release from his office:

RICHMOND (February 3, 2011) — Virginia Attorney General Ken Cuccinelli announced today that Virginia will file a petition to ask the United States Supreme Court to take Virginia's health care lawsuit now, as opposed to waiting for the case to first be decided by the court of appeals. The Petition for Certiorari Before Judgment in the United States Supreme Court in the case of Commonwealth v. Sebelius will be filed pursuant to Rule 11 of the Rules of the United States Supreme Court.

"Given the uncertainty caused by the divergent rulings of the various district courts on the constitutionality of the Patient Protection and Affordable Care Act, we feel that it is necessary to seek resolution of this issue as quickly as possible,” said Cuccinelli. “Currently, state governments and private businesses are being forced to expend enormous amounts of resources to prepare to implement a law that, in the end, may be declared unconstitutional. Regardless of whether you believe the law is constitutional or not, we should all agree that a prompt resolution of this issue is in everyone’s best interest."

Normally, appeals of decisions of United States district courts are first heard in the federal courts of appeals. But Rule 11 provides that an immediate review in the U.S. Supreme Court is permissible "upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in" the Supreme Court.

Cuccinelli noted, "Rule 11 is the exception to the general rule, but this case and the other cases challenging the constitutionality of PPACA are truly exceptional in their own right. There are a number of suits pending throughout the country challenging the constitutionality of PPACA. Presently, 28 states have filed suits challenging the authority of Congress to enact this law. That, in and of itself, is exceptional and makes the cases excellent candidates for immediate review in the Supreme Court.

"We did not make this decision lightly. Given his unique responsibilities to fund and implement PPACA as Governor of Virginia, Governor McDonnell is particularly concerned about the possibility of wasting precious and strained taxpayer dollars preparing for a law that may well be struck down. Recognizing the tremendous amount of time and resources that are and will be expended to implement a law that two federal judges have ruled contains unconstitutional provisions, Lieutenant Governor Bolling and Speaker Howell have joined the governor in requesting that my office seek expedited review. Additionally, I have been encouraged to attempt to expedite this case by Democrats as well as Republicans in Virginia's General Assembly, and of course, the bipartisan passage of Virginia's Health Care Freedom Act last year was the very first step in this entire process here in the commonwealth.

"Despite the fact that the Department of Justice has not agreed to join in a Rule 11 motion, in a filing with the U.S. Court of Appeals for the Fourth Circuit to set an expedited schedule for its appeal of Virginia's district court victory, the Justice Department stated, 'The constitutionality of [PPACA] has public policy implications of the highest magnitude.' In other words, according to the Justice Department itself, a case cannot have public policy implications that are more important than this case. We agree and feel that reinforces the fitting nature of our request for immediate review in the Supreme Court," Cuccinelli said.

The Petition for Certiorari and Appendix are currently being assembled by the legal printer for the attorney general and will be filed with the court as soon as is practicable.

Federal Judge In Florida: Obamacare Unconstitutional

Today, a second federal judge in as many months ruled Obamacare unconstitutional (see Avik Roy at The Apothecary blog at Forbes.com). That's two lawsuits involving 27 states against the federal government's healthcare takeover and two rulings that it is unconsitutional. Perhaps the most devastating aspect of Judge Roger Vinson's decision is that he ruled the entire law is unconstitutional because the offending portion — the individual mandate that forces Americans, for the first time in history, to buy a product — is not severable. In other words, when the law was drafted, in its legislative sloppiness, the U.S. Senate did not include a clause that declared if any part of it was ruled unconstitutional, the remainder of the law remained in effect. Even Judge Henry Hudson, of the Eastern District of Virginia, who was the first judge to rule Obamacare unconstitutional, refused to go that far. But Judge Vinson did not enjoin the law (see 21StateLawSuit.com), either.

Much like Judge Hudson's opinion, however, Judge Vinson said the law goes well beyond the limits of the Commerce Clause and any High Court precedent. He wrote:

The individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law.

Here is Attorney General Ken Cuccinelli's reaction: 

I am heartened by the fact that another federal judge has found that the individual mandate forcing citizens to buy private health insurance is unconstitutional. The judge also found that the individual mandate could not be severed from the remainder of the law, so he declared the entire act invalid.

Constitutional principles have scored another victory today. Liberty has scored another victory today.

I congratulate Florida Attorney General Bondi, former Attorney General McCollum, and the attorneys general and governors who joined the Florida suit, on their victory.

Here is Governor Bob McDonnell's reaction:

Judge Vinson's ruling is yet another strike against the individual mandate specifically, and the entire federal health care law generally. For the second time in as many months, a federal judge has found that Congress exceeded its constitutional authority by mandating that citizens of this nation purchase a commercial product or else face a penalty.

Judge Henry Hudson reached a similar conclusion in his December ruling on the Commonwealth's challenge to the Act. However, Judge Vinson's decision goes one step further. The Judge also ruled that the individual mandate component is not severable from the overall Act in which it is contained, meaning that this one unconstitutional provision renders the entire bill void.

I agree with both Judge Vinson and Judge Hudson that the individual mandate is clearly unconstitutional. However, this matter is far from settled. Today's decision adds to the growing uncertainty surrounding federal health care reform. That uncertainty is leaving states, businesses and individuals unable to properly plan for 2014 and the scheduled implementation of this new law.

For this reason I reiterate my request that the Department of Justice join with the states to request fast tracking the challenges to the Patient Protection and Affordable Care Act to the Supreme Court of the United States, where the final decision regarding its constitutionality will ultimately be determined. All parties involved, no matter where they stand on this measure, should support moving this issue to its final stage, and bringing finality to a complicated matter that will have an impact on every state, employer and citizen of this nation.

Make No Mistake: Abortion Coverage IS IN The Government Run Health Care Bill

Courtesy of our friends at the Family Research Council, below are eight documented facts about the inclusion of abortion funding or mandates in the so-called health care "reform" bill. You can click here, as well, to get them in a PDF document.

Eight Reasons Abortion Is in the Health Care Overhaul

1. The legislation specifically includes it. The President’s bill to amend the Senate bill leaves several abortion provisions in place. In Section 1303 it allows tax credit subsidies for plans that include abortion and leaves the abortion surcharge in place. It maintains the proposal to create a multi-state plan that includes abortion in Sec. 1334. Even worse, it would increase the Senate bill funding from $7 billion to $11 billion for community health centers in Sec. 10503 without any abortion funding restrictions. (H.R. 3590, Patient Protection and Affordable Care Act.)

2. Health and Human Services Secretary Kathleen Sebelius has said it is. "And I would say that the Senate language, which was negotiated by Senators Barbara Boxer and Patty Murray, who are very strong defenders of women’s health services and choices for women, take a big step forward from where the House left it with the Stupak amendment, and I think do a good job making sure there are choices for women. ... That would be an accounting procedure, but everybody in the exchange would do the same thing, whether you’re male or female, whether you’re 75 or 25, you would all set aside a portion of your premium that would go into a fund." (HotAir.com: "Sebelius: Everyone will pay into abortion-coverage fund".)

3. Senate Democrats refused to ban it. Instead of allowing for an up or down vote on a Senate amendment similar to the Stupak Amendment in the House which bans federal funding of abortion, Senator Barbara Boxer (D-Calif.) "tabled" the amendment, effectively killing it. This was the only amendment dealt with in this way. (Vote No. 369 S.Amdt. 2962 to S.Amdt. 2786 to H.R. 3590.)

4. House Pro-life Democrats, who support a government takeover, say it is. "The Senate language is a significant departure from current law and is unacceptable." (U.S. Representative Bart Stupak (D-Mich.), February 23, 2010, CBS News) … "I think abortion’s wrong. The problem is that I’ve lived too long. When they say they can keep this money separate, I just don’t believe it." (U.S. Representative Marion Berry (D-Ark.), March 6, 2010, Arkansas News.)

5. House Pro-abortion Democrats say it is. "The good news is that the Senate bill does allow [abortion coverage]," (Chairwoman of the House pro-abortion caucus, Dianne DeGette (D-Colo.), March 5, 2010, Washington Post.)

6. The Abortion industry has sent out alerts in favor of it. The abortion giant Planned Parenthood sent out alerts on March 6, 2010: "President Obama’s health care reform proposal would make a real difference for the women and families who rely on Planned Parenthood. . . . and [the bill] significantly increase access to reproductive health care." (Planned Parenthood alert, March 6, 2010.)

7. Candidate Obama said it would be included, and the Obama administration includes it in its definition of reproductive health care. Presidential candidate Barack Obama stated he "believes that reproductive health care is basic health care." (Rhealitycheck.org questionnaire, 2008.) Secretary of State Hillary Clinton followed up on this in 2009: "Reproductive health care includes access to abortion." (The Cloakroom Blog: "Secretary of State Hillary Clinton, April 22, House Foreign Affairs Committee Hearing.")

8. House Democratic Majority Whip Steny Hoyer (D-Md.) has indicated he wants to "fix" the abortion coverage problem in the Senate bill. "House Majority Leader Steny Hoyer (D-Md.) said Thursday that lawmakers could draft separate pieces of legislation with abortion language to earn the support of anti-abortion rights Democrats on healthcare reform legislation." (March 4, 2010: The Briefing Room, The Hill's blog.)

But if those eight facts aren't enough to convince your "pro-life" friends who are convinced that anything out of "the annointed one's" mouth is truth, or just can't bring themselves to doubt such "moderate" and "Blue Dog Democrats" such as U.S. Senator Ben Nelson (D-Neb.) or our own Mark Warner, here's 12 more facts and reasons, courtesy of The Cloakroom.

Still not sure? Then check out FRC Action’s resource page: "Standing Against the Government Takeover of Health Care," as well as why the Hyde Amendment does not apply to the current bill: "Q and A: Government Health Care and Abortion." Please disseminate this information by using the share program, e-mailing this link to friends and/or posting it to your own social networking sites.