If Obamacare Squeaks by This Time...

Even if the insurance mandate is upheld, another constitutional challenge awaits.

The fate of Obamacare, particularly whether its individual mandate provision exceeds the constitutional limits of Congress' power, is now in the hands of the Supreme Court. Although a decision is not expected until late June, the Left is already trotting out its narrative that any outcome other than a complete upholding of Obamacare would represent an act of unrestrained judicial activism that will endanger the very legitimacy of the Court.

In its lead editorial on Sunday April 1st, for example, the New York Times declared that there has been "no court less restrained in signaling its willingness to replace law made by Congress with law made by justices." The Times attributed this "disastrous" trend to - horror of horrors - "a political ideology that limits government and promotes market freedoms, with less regard to the general welfare."

Senator Chuck Schumer (D-NY) parroted the Times editorial when he appeared on NBC's "Meet The Press" the same day. Overturning Obamacare, he said, would cast the justices voting in the majority as judicial activists.

What the Times' editors, Senator Schumer and the rest of the chattering class on the Left conveniently ignore is that the "political ideology" of limited government they so revile is precisely what animated the Founding Fathers to create the constitutional framework protecting the people and the states from the exercise of unlimited federal centralized power. Consider the following quote from James Madison:

If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress…. Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America. [James Madison, Letter to Edmund Pendleton, January 21, 1792.]

Was it really so surprising that a Supreme Court justice who takes the Constitution and its founding principles of limited government and protection of individual liberties seriously would ask, as Justice Kennedy did during the oral argument on the individual mandate, "whether or not there are any limits on the Commerce Clause?" Was Justice Scalia so out of line when he said that "the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers." The Left thinks so.

Let's suppose the Supreme Court does end up rejecting the constitutional challenge to the individual mandate and decides that it is a legitimate exercise of Congress' power under the Commerce Clause. Obamacare will still not be home free from a further constitutional challenge. It could come as soon as the centralized government rationing mechanism, which Obamacare uses to rein in the nation's overall health costs, ends up denying a patient the financial means to pay for critical health care that the individual and his or her doctor deem medically necessary.

Ironically, the next challenge could will be based on the same line of reasoning that the Supreme Court had used to justify one of the Left's most beloved precedents - Roe v. Wade.

What does Roe v. Wade have to do with Obamacare? It's all about the meaning of "liberty" under the Constitution's Due Process Clause.

The 5th Amendment to the Constitution says that "no person" shall "be deprived of life, liberty, or property, without due process of law." The 14th Amendment extends that basic protection of individual life, liberty and property against any arbitrary action by the various states. Roe v. Wade applied the Due Process Clause, particularly its protection of personal liberty to make decisions about one's own body, in upholding a woman's right to choose to have an abortion to terminate a pregnancy without any undue burden imposed by the government.

Justice Kennedy expounded on the meaning of liberty, in an opinion he co-authored that re-affirmed the Roe v. Wade decision. He explained that protection of individual liberty involved:

the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy... At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. [Planned Parenthood Of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).]

Obamacare's fundamental restructuring and regulation of the nation's health care services necessarily affects the relationship between the government and the individual when it comes to decisions as personal as the care of one's own body. This includes governmental decisions on what type and level of critical care should be funded at all.

In an obvious attempt to appeal to Justice Kennedy's focus on individual liberty, Solicitor General Donald Verrilli tried to use a liberty-based justification for the expansion of Medicaid and the individual mandate in his summation during the final day of oral argument:

But if I may just say in conclusion that -I'd like to take half a step back here, that this provision, the Medicaid expansion that we're talking about this afternoon and the provisions we talked about yesterday, we've been talking about them in terms of their effect as measures that solve problems, problems in the economic marketplace, that have resulted in millions of people not having health care because they can't afford insurance.

There is an important connection, a profound connection, between that problem and liberty. And I do think it's important that we not lose sight of that.

That in this population of Medicaid eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.

In making this liberty-based argument to push back against the current constitutional challenge to Obamacare, the Solicitor General unwittingly took the constitutional legs out from under Obamacare's health rationing scheme.

Obamacare’s Independent Payment Advisory Board (IPAB) and the regulations being churned out by the Department of Health and Human Services are all about top-down, government mandated health care rationing. IPAB, made up of unelected, unaccountable "experts," has the authority to recommend proposals to limit Medicare spending growth by specified amounts, with the first set of recommendations due in 2014 for implementation in 2015. If the Board fails to submit a proposal, the Secretary of the Department of Health and Human Services is required to develop a detailed proposal to achieve the required level of Medicare savings.

The only way to overrule what IPAB decides is appropriate health care for senior patients is for Congress to override its rulings by a super-majority (three-fifths) vote. If Congress does so, it must come up with its own specific recommendations.

Doctors and each of their senior patients will no longer be making health decisions in the best interests of each individual patient. Instead, the government- IPAB or Congress directly, with implementation by the Secretary of the Department of Health and Human Services - will allocate health care resources towards the needs that the government decides are most worthy from a "general welfare," top down cost-benefit perspective. Say goodbye to a senior person's autonomy to make the most intimate and personal choice that person will ever make in his or her lifetime, involving health care that could literally make the difference between life and death. A decision by the government to withdraw funding for a treatment that could save a person's life, or unshackle that person from the debilitating effects of serious, chronic diseases, will deny that person the "opportunity to enjoy the blessings of liberty."

This is not a doomsday scenario. Kathleen Sebelius, U.S. Secretary of Health and Human Services, admitted the potentially dire consequences of Obamacare's government-directed health care allocation decisions during her testimony before the health subcommittee of the House Energy and Commerce Committee last year. She conceded that if Congress approved the IPAB bureaucracy’s recommendation for Medicare to reduce its reimbursement payments to seniors for dialysis procedures, for example, seniors may well be left unable to receive this life-saving treatment.

Rep. Joe Pitts (R-Pennsylvania) asked Sebelius to consider a hypothetical scenario in which IPAB made recommendations that Medicare reduce its reimbursement payments for dialysis procedures. Pitts inquired if seniors would be affected by reduced access to dialysis services. Here is the exchange that followed:

Sebilius:   “If Congress accepted the recommendations and made the decision that cuts in dialysis were appropriate, I assume there could be some providers who would decide that would not be a service they would any longer deliver, the same way they do with insurance providers each and every day.”

Pitt: “Would that mean some seniors have to wait longer for dialysis?”

Sebilius:  "Mr. Chairman, as you know, any cut in services, certainly cost shifting to beneficiaries, could mean huge reductions in care that seniors would have the opportunity to receive."

The Left should not get too cocky if the individual mandate survives the current constitutional challenge to Obamacare. A challenge to Obamacare's government-directed health care rationing scheme will be next, based in part on the path laid out by the Left's much heralded case, Roe v. Wade.

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