ObamaCare On Trial

Jacob Laksin is a senior writer for Front Page Magazine. He is co-author, with David Horowitz, of The New Leviathan (Crown Forum, 2012), and One-Party Classroom (Crown Forum, 2009). Email him at jlaksin@gmail.com and follow him on Twitter at @jlaksin.


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Since its passage in 2010, the Obama administration’s sweeping health care overhaul has been wrangled over in the media and in the courts. Now ObamaCare will face a reckoning before the nation’s highest court. After much anticipation, the Supreme Court on Monday agreed to consider a challenge to the law brought by 26 states. The hearing, scheduled for March, promises to be a tough test for the legislation, starting with a showdown over its central and most polarizing provision: the so-called individual mandate to purchase health insurance.

At issue is whether Congress has the constitutional power to compel individuals to purchase health insurance and to force them to pay a penalty if they refuse. Opponents insist that it does not. They argue that the mandate is a flagrant violation of individual liberty and that in passing it Congress has exceeded its authority to regulate interstate commerce. Endorsing that view are several state court decisions. In 2010, a Virginia court ruling struck down the mandate provision of the law. Florida’s Federal District Court followed suit last January, finding both the mandate and the health care law unconstitutional. Most recently, this August a U.S. appeals court in Atlanta ruled that the mandate was unconstitutional.

Despite those defeats, the Obama administration has not backed down. For the administration, the mandate is the cornerstone of the health care bill. Without the mandate’s forcing Americans to purchase insurance, for instance, it would be difficult to sustain other provisions of the law, among them provisions that insurance companies accept all applicants and disregard pre-existing conditions. As such, the mandate is the key to the administration’s vision of “universal” health care coverage. Never mind that even with the mandate, the legislation will still not achieve universal coverage, since 23 million will remain uninsured. Nonetheless, given the centrality of the mandate to the bill, it’s not surprising that the administration is determined to fight to keep it.

It could not have dented the administration’s confidence in prevailing in this fight that last week a respected conservative judge in the U.S. Court of Appeals for Washington D.C. ruled to uphold the mandate. In a curiously defended decision, Laurence Silberman, a Reagan appointee who authored the 2008 decision that ended Washington’s D.C.’s gun ban, ruled that while the individual mandate “certainly is an encroachment on individual liberty,” it is nonetheless constitutional. Silberman likened the mandate to “a command that restaurants or hotels are obliged to serve all customers regardless of race.”

As critics were quick to note, this was a strange argument. Among other issues, the health care law was not forcing businesses to sell a product, but rather forcing customers to buy one – a government intrusion that many have described as unprecedented. Indeed, such reasoning, if accepted, potentially opened up the prospect of unlimited government power to direct commerce. Silberman’s colleague on the D.C. court, justice Brett Kavanaugh, raised that troubling possibility. In his dissenting opinion, Kavanaugh pointed out that if this reasoning was valid there was nothing to stop Congress from requiring “mandatory purchases of retirement accounts, housing accounts, college savings accounts, disaster insurance, disability insurance, and life insurance” too.

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  • Fred Dawes

    Its all a Show, you will see obama care in forced and many will say no but you will never hear of the ones who say no, its a game and it is a police state country, next stop the web will be removed after that in 10 years you will be told what to think who to talk to what you can do each hour of the day, in other words be happy in your THX ( MOVIE BACK IN THE 1970'S ) WORLD.

    • Ken

      They are already indoctrinating our kids in school, so this seems more logical than people would like to admit.

  • margaretmack63

    This is a sad commentary about this country. This man was no sloutch; he evidently worked most of his life and is now down on his luck. My only problem with Obama-care is that it didn't go far enough and fast enough. When any American dies because he or she can't afford health care should use "Penny Health" for insurance meanwhile

  • G. Herzog

    I dislike ObamaCare for a more fundamental reason – big insurance is the problem and will never be the solution.

    We are locked in a death grip between malpractice insurance increasing the cost of medicine and medical insurance as the only way to pay for the excessive costs (due to hefty insurance premiums for medicine).

    I relocated to Taiwan where I get medical and dental coverage for about $25USD per month. I usually pay about $5USD per visit and the rest is insurance. Dental can be a bit more for inlays and so on, but still is half of what Americans pay.

    We should limit the liability of medical doctors and dentist in exchange for lower cost and get insurance companies out of huge windfall profits. Most doctors want to help people, but their insurance overhead has overtaken any reasonable medical practice. And the poor have made the ER a chaotic mess as they cannot get to see a doctor by appointment without cash in hand.

    BTW, my father and grandfather were MDs and thank God I never became one as the present work environment is economically and legally horrific.

    Put the reform where it belongs.

  • Zinnia2

    ruled unconstitutional or not – the Senate still should repeal it to get rid of all the complex workings that are being implemented now…

  • Dispozadaburka

    It will get passed.

    It is the new "DHIMMI TAX" of Saudi America.
    Muslims will be exempt, but that will only be announced after Obama's re-election in 2012.

    The best trick of the devil is to let humans think he doesn't exist.

  • waterwillows

    It is illogical to 'force' people to purchase anything. Once that door is opened, even the Judges will find themselves 'forced' to purchase a number of things they neither want or need but the law demands it.
    The 'law' will demand it. They will say it is "for the good of the country". Be that the car, home or any item or idea, big brother deems 'necessary'. And I think we all know that governments think a number of things are to be 'necessary' to people. We see that in many other nations.
    Forced purchasing is a death to the country and the people.

    • Jim_C

      Seems to work for every single other industrialized nation in the world, but hey….The Heritage Foundation and Newt Gingrich also endorsed it…until it became inconvenient to the ideology.

  • tagalog

    Furthermore, there is a long line of Commerce Clause cases that uphold expanding authority on the part of Congress to make all kinds of demands in the name of regulating interstate commerce, as well as mandatory involvement in Social Security and other governmental "benefit" programs that lean in the direction of the Supreme Court upholding the Individual Mandate.

    Our only hope is that the justices will recoil at the idea of the U.S. government actually having the power to dictate to the people what they must buy and what they may choose not to buy. A mighty frail reed.

  • William Bruce

    I am afraid the decision by the Supreme Court cannot be predicted. But the American people need to remember that the only thing supreme about the Court is that it is the highest court in the Judiciary branch of government. The Constitution itself remains the supreme law of the land and the interpretation of the people could be against that of the Court. If that is the case, steps need to be taken to repeal and remove this monstrous Obama law.

    • Fred Dawes

      You are right but the people of the third world will be taken care of by obama care, the free people will go to jail and many will died saying NO To obama care.

  • Fred

    The Supreme Court should have made a decision to rule on Obama being ineligible to hold office and this would have taken care of the so called "Barry Obama Care".

    Or whatever this guys name really is. Barry and Holder MUST GO.

    • mlcblog

      Yeah, boy, we really missed it when we all knew his father was a Kenyan and that automatically disqualified him. But, somehow he ran and was elected. Unreal!!

  • Flowerknife_us

    Passsing a Health Care Bill with the full knowledge that the 48% of taxpayers who-pay no taxes- will likely be unable to afford Health Insurance. They knew up front the 18-26 age bracket were not able to afford it.
    The whole program makes criminals of everyone. Those without the means to pay are guilty right up front. Those with the means who refuse become criminal. Those with the means who do pay are soaked for the total.

    Discrimination by means of wealth and income with Constitutional authority is the end of the Republic with the socialist dream come true. The means of making wealth a crime with the authority to take it away.

  • mrbean

    Do you think the situation would be improved by having hair-care cooperatives organized by the government? — having them engage in managed competition, managed by the government, in order to buy haircut insurance from companies controlled by the government? If this is what would happen under government-managed hair care, what else can possibly happen — it is already starting to happen — under the idea of health care as a right? Health care in the modern world is a complex, scientific, technological service. How can anybody be born with a right to such a thing?
    Under the American system you have a right to health care if you can pay for it, i.e., if you can earn it by your own action and effort. But nobody has the right to the services of any professional individual or group simply because he wants them and desperately needs them. The very fact that he needs these services so desperately is the proof that he had better respect the freedom, the integrity, and the rights of the people who provide them. You have a right to work, not to rob others of the fruits of their work, not to turn others into sacrificial, rightless animals laboring to fulfill your needs.

  • mlcblog

    I am praying for its overturn somehow because I work daily typing medical reports for doctors whom I adore and think the whole system we have in place now is most admirable even with all its flaws. Our docs manage to arrange care for patients who don't have funds or insurance as well as performing all their brilliant life-giving tasks. I so hope this nasty bill will not stand, where bureaucrats will run everything and many good doctors will take their talents elsewhere.

  • Asher

    If this Bill is so Constitutional then why have there been over 1000 waivers granted to multiple companies and Unions by Health and Human Services. The commerce Clause was expanded to accomodate this new bill. To say that the Health care industry can be taken over by the United States government under the Commerce clause or any other provision of the 17 enumerated powers allowed to Congress is Unconstitutional. The Constitution does not authorize the Federal Government to establish a public health care system like the one they have in Canada and England. The problem is that our present Constitution is NOT being Enforced….It can't enforce itself!

  • Enola Maree

    Medical MJ changed my life for the better without it, I may well have to leave the state to continue being able to live.

  • StephenD

    And Kennedy has no compunction to adhere strictly to the Constitution. He has intimated that he is willing to bend on the First Amendment when the practice of it may "offend" some folks. What the hell do we even need a law protecting this right if what everyone had to say wasn't offense sometime, somewhere to someone?!? Trusting Judges with basic Constitutional issues doesn’t bring on the warm and fuzzy feelings. I’d rather count on the repeal of the law (found valid or not) from worthy officials after the next election.

  • G. Herzog

    It really is rather absurd to make this a Democrat issue when the insurance providers are heavily Republican. It doesn't matter what party you belong too, medical cost in America our out of control and it is due to law makers, lawyers, and insurers all lobbying for selfish benefit.

    And I suspect that "Trial Lawyers of American' happily donate to both parties. So it is money and greed that is hurting all of us.

  • Jim_C

    Yes, that's their best response to having done zero to reform health care, or outright standing in the way of reform.

    Go team.