Tag: individual mandate

Virginia Obamacare Lawsuit Dismissed

No, not the lawsuit brought by Virginia Attorney General Ken Cuccinelli (in which Cato has been filing amicus briefs), but rather one brought by Jerry Falwell’s Liberty University.  Most notably, the district judge found the individual mandate to be a lawful exercise of Congress’s powers under the Commerce Clause because

individuals’ decisions about how and when to pay for health care are activities that in the aggregate substantially affect the interstate health care market….  Far from ‘inactivity,’ by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance. As Congress found, the total incidence of these economic decisions has a substantial impact on the national market for health care by collectively shifting billions of dollars on to other market participants and driving up the prices of insurance policies.

This analysis echoes that of the Michigan judge who granted the government’s motion to dismiss the Thomas More Legal Center’s lawsuit in October – and is fatally flawed because everything is an “economic decision” that “substantially affects the national market” in something.  If that’s the rationale upon which the Supreme Court ultimately upholds Obamacare, then we are left quite literally with no principled limits on federal power.  Something tells me it won’t be so simple, however, even if the forces of darkness big, “self-checking” government prevail.

Nevertheless, the White House blog is understandably delighted with such rulings, trumpeting yesterday’s decision as yet another on an inexorable and inevitable march to the full vindication of an unprecedented assertion of federal power.  (Question: Was nobody there paying attention to what voters said about all that November 2?)

In any event, as I said in a recent blog post and op-ed, nobody should yet declare victory or concede defeat.  There will be many, many rulings yet, both at the trial court level and on appeal.  This will not end until the Supreme Court rules, most likely in June 2012.  But if you’re keeping track, the next major event is a December 16 summary judgment hearing in Pensacola in the Florida-led 20-state lawsuit – and we should also soon see a final ruling from the Cuccinelli case right before or after Christmas.  Expect the White House to be a bit less chipper about these events.

RomneyCare’s ‘Connector’ a ‘Legal Pit Bull’ Forcing Fed-Up Mass. Residents to Pay

According to the Boston Herald:

The state’s health insurance connector — the highly touted agency that aims to bring cheap medical care to the masses — has turned into a legal pit bull by aggressively going after a growing number of Bay Staters who say they can’t afford mandated insurance — or the penalties imposed for not having it.

The Commonwealth Health Insurance Connector Authority is cracking down on more than 3,000 residents who are fighting state fines, and has even hired a private law firm to force the health insurance scofflaws to pay penalties of up to $2,000 a year.

All told, more than 7,700 people have appealed state fines for not having health insurance, according to connector spokesman Richard Powers. The agency has hired several private attorneys at $50 an hour to hear many of the appeals, and some 3,150 of them have been denied — and the losers told to pay up.

The connector has also hired the Hub law firm Bowman & Penski — at $125 an hour — to defend itself against 13 lawsuits filed by fed-up taxpayers who insist they can’t afford state required insurance premiums or the escalating fines.

For more on RomneyCare, see “The Massachusetts Health Plan: Much Pain, Little Gain.”

More Proof ObamaCare Is a Sop to Industry

Reuters has helpfully published another article demonstrating that ObamaCare’s biggest cheerleaders are the insurance and drug industries.  That’s because, barring repeal and despite the Obama administration’s fatuous rhetoric about standing up to the special interests, ObamaCare will shower those industries with massive subsidies.  Excerpts follow.

Health Overhaul Should Press Ahead: Industry
By Susan Heavey

Thu Nov 11, 2010 1:39pm EST

NEW YORK (Reuters) - Repeal reform? No thanks, say health insurers, drugmakers and others looking for a clearer picture of the U.S. healthcare market after the bruising passage of the controversial overhaul law…

The new healthcare law created “a stable, predictable environment, however painful it has been in the short term,” GlaxoSmithKline Plc’s (GSK.L) Chief Strategy Officer David Redfern said at the summit in New York.

“When you are running a business, the hardest thing is changing policy and a changing environment because it is very difficult to plan, predict and ultimately invest in that sort of scenario,” he said, echoing other speakers.

True enough.  How’s a firm supposed to develop a business plan around uncertain taxpayer subsidies?

Health officials must still hammer out how to implement the law and finalize hundreds of new rules and regulations. Many such details are key, as the sector looks to adjust its business for 2011 and beyond.

Wait, I thought the law created a “stable, predictable environment” and repeal would create uncertainty.  Hmmmm.

“Anti-reform made good talking points before the election,” said the Department of Health and Human Services’ Liz Fowler, adding that people “will find more to like than to dislike” in the law once it is more in place.

Boy, they just won’t let go of that chestnut, will they?  Remember: voters need re-education, not the Obama administration.

Even insurers, which were vilified by Democrats in passing the reforms, said they don’t want a repeal, even as they push for clarity on forthcoming rules and seek additional changes.

Cigna Corp CEO David Cordani and Aetna Inc President Mark Bertolini both urged the nation to move forward on the overhaul.

Even the insurance industry is against repeal?  The folks whose products the law will force 200 million Americans to purchase?  Never saw that coming.

Since the start of 2009, the Morgan Stanley Health Care Payor index has risen 75 percent, outperforming a roughly 35 percent rise for the broader Standard & Poor’s 500 index.

You don’t say.

Unlike insurers[!], drugmakers have escaped largely unscathed under the law, although there is still incentive to shape it.

You don’t say.

Tea Party Not Keen on RomneyCare

The following exchange took place yesterday on the Christian Broadcasting Network between host David Brody and Tea Party Express Chairwoman Amy Kremer.

Brody: Mitt Romney…on the Massachusetts health care situation, you’re going to tell me that’s going to fly in the Tea Party movement?

Kremer: Absolutely not…I’m being honest here…You can’t get away from that.  And that’s the thing is, the days of people being able to do one thing in their state in front of a microphone, and then going to Washington and doing something else. I mean, the Internet, and 24-hour news cycles changed it all, and these people don’t have short memories, they’re digging up everything from the past, and they’re not going to let go of the health care.

Hmm.  I wonder why…


Video of the CBN exchange is available here.  For more on RomneyCare, read “The Massachusetts Health Plan: Much Pain, Little Gain.”

ObamaCare Takes a Shellacking

It wasn’t just the party of ObamaCare or its champion that took a “shellacking” at the polls yesterday.  The law took a shellacking as well.  One pollster reports:

This election was a clear signal that voters do not want President Obama’s health care plan.  Nearly half (45%) of voters say their vote was a message to oppose the President’s plan….

Arizona and Oklahoma passed constitutional amendments designed to block ObamaCare’s individual mandate.  Many new governors either plan to join the 22 states already challenging ObamaCare in court, or to block its implementation in other ways.  Congressional Republicans appear determined to use every tool in their arsenal to repeal it.

President Obama is striking a conciliatory note, saying he is open to “tweaks:”

If the Republicans have ideas for how to improve our healthcare system, if they want to suggest modifications that would deliver faster, more effective reform… I am happy to consider some of those ideas.

There is room to doubt his sincerity.  The Washington Post has reported that when President Obama begins a sentence with, Let me be clear, it is “a signal that what follows will be anything but.”  Obama has likewise claimed open-mindedness and flexibility when his behavior exhibited the opposite qualities.  (Remember how last year’s White House summit on health care was all about gathering “the best ideas.”)

Yet with a firm conviction that facts and science and argument still matter, I resubmit to President Obama this Cato Policy Analysis: Yes, Mr. President: A Free Market Can Fix Health Care.  In fact, a free market is the only thing that will.  But a reasonably free market is impossible with ObamaCare still on the books.

I doubt the president will read it.  But Republicans should.  They seem pretty solid on Repeal.  They’re weaker on Replace.

Anti-Obamacare Rulings a Trend or Just Coincidence?

I’m fond of saying that lawsuits don’t proceed at Internet speed – meaning that people are disappointed when I tell them that a new constitutional challenge to uphold property rights or free speech or individual liberty generally will take years to get through the courts, or that we’ll have to wait several months for a court to issue an opinion in some front-page case.  But lately it does seem that developments from the ongoing legal challenges to Obamacare are coming faster and faster, as if the train has now left the station and, to badly mix metaphors, it’s snowballing to an eventual collision at the Supreme Court.

That “gaining speed” phenomenon is mainly coincidence – given the more than 20 Obamacare lawsuits out there, briefing schedules, hearings, and rulings are bound to overlap at some point – but it has been interesting to compare and contrast the events of the last 10 days.  To recap some of the high points, this summer Judge Henry Hudson denied the government’s motion to dismiss Virginia’s law suit (read my comments here and Cato’s brief here).  Then two weeks ago, Judge George Steeh granted a similar motion in a case brought by the Thomas More Law Center in Michigan – in a cursory opinion I react to here and critique in this op-ed.

Last Thursday, Judge Roger Vinson issued a 65-page opinion allowing most of the lawsuit brought by 20 states, the National Federation of Independent Business, and two individuals to proceed (my reaction here).   This is an important ruling spelling out the unprecedented nature of the power Congress purports to assert here, with the individual mandate of course but also in potentially commandeering state officials and coercing them with strings attached to Medicaid funds and other regulatory burdens.

Finally, yesterday Judge Hudson held a hearing in Richmond on the parties’ cross-motions for summary judgment – which means both sides agree that no material facts are in dispute and the court should go ahead and rule on the law without having a trial.  (Cato filed a brief for this stage of proceedings as well.)  By all accounts, the hearing went well for Virginia; Judge Hudson was skeptical of the government’s argument that individual decisions not to enter the insurance marketplace was the sort of “local economic activity that has a substantial effect on interstate commerce” that the Supreme Court has said marks the outer bounds of Congress’s power under the Commerce Clause.  The judge also indicated that he would issue an opinion by the end of the year.

This is all heartening news – the courts that are seriously grappling with these lawsuits (and especially the highest profile cases brought by the 21 states) actually think the Constitution places limits on federal power.  Then again, I can’t believe that question is even up for discussion!  Stay tuned – and keep track of all the lawsuits at healthcarelawsuits.org.

Obamacare Suffers Another Legal Blow

Yes, Speaker Pelosi, the constitutional concerns people have with the health care legislation you rammed through Congress despite overwhelmingly negative public opinion are serious. The Florida court’s ruling, denying the government’s motion to dismiss the challenge to the new health care law brought by 20 states and the National Federation of Independent Business, mirrors the one we saw in July in Virginia’s separate lawsuit. These have been the most thoroughly briefed and argued lawsuits, so these significant and lengthy opinions conclusively establish that the constitutional concerns raised by the individual mandate and other provisions are serious. Nobody can ever again suggest with a straight face that the legal claims are frivolous or mere political gamesmanship.

And that should come as no surprise to those who have been following the litigation because the new law is unprecedented – quite literally, without legal precedent – both in its regulatory scope and its expansion of federal authority. Never before have courts had to consider such a breathtaking assertion of raw federal power – not even during the height of the New Deal. “While the novel and unprecedented nature of the individual mandate does not automatically render it unconstitutional,” Judge Vinson observed, “there is perhaps a presumption that it is.”

This means at the very least that “the plaintiffs have most definitely stated a plausible claim with respect to this cause of action.”

Just so – and the deliberate consideration that these district courts are giving to these serious constitutional arguments (unlike the Michigan judge’s perfunctory treatment last week) indicates that the probability that the Supreme Court will ultimately strike down the individual mandate continues to increase.