There were no big surprises in the Democrat-controlled Senate with respect to repealing the Affordable Health Care for America Act, more commonly known as ObamaCare. Early Wednesday evening, a measure to repeal the bill was sponsored by Senate Minority Leader Mitch McConnell (R-KY) and attached to an unrelated airport construction bill. It was defeated on a party line vote of 51-47 with Democrats remaining united despite their “shellacking” in the 2010 election. Rumors of Democrat defections, which had been circulating in the media and on Capitol Hill for the past week, proved to be nothing more than wishful thinking.
Despite turning back Republican attempts to repeal the bill in its entirety, Democrats came together with the GOP to approve an amendment proposed by Senator Debbie Stabenow (D-MI) eliminating an IRS reporting requirement in which medical businesses would have been forced to file a 1099 tax form for purchasing equipment worth $600 or more. Critics of that particular part of the bill had contended that such a requirement would have buried them under mountains of unnecessary paperwork. The Senate apparently agreed, passing the repeal by a vote of 81-17, despite arguing over $19 billion the provision was projected to raise.
According to Fox News, critics of the overall bill contend that there are many more equally odious provisions in the legislation, with Senator Jim DeMint (R-SC) likening efforts to repeal such provisions in piecemeal fashion as “pouring a few glasses of fresh water into a polluted river.” Senator Orrin Hatch (R-UT) was even more direct. “[Democrats] know its a rotten bill,” he said.
On Monday, Federal Judge Roger Vinson became the second judge to rule the act unconstitutional, based on the highly controversial provision which requires every American to purchase health care insurance or face a fine for failing to do so (the “insurance mandate”). He is the fourth judge to rule on the matter, making it two judges for, and two against the bill. However, Judge Vinson’s ruling may carry more weight. The lawsuit filed in his court was one by the attorneys general of 26 different states, which constitutes a majority of the states themselves. Furthermore, Judge Vinson addressed the “severability” issue which, in most cases allows part of a bill to be rescinded even as it leaves the remainder intact. Because there was no clause in the bill allowing the insurance mandate to be severed, the entire bill had to be rendered void, Vinson ruled.
Severing the insurance mandate would be highly problematic for the Obama administration. Requiring insurance companies to cover people with pre-existing conditions, another measure the bill enacts, won’t work without the individual mandate, because the latter drives more money into insurance company risk pools. ”How do you say to an insurance company, you must insure someone that you know is going to cost you a lot more money…if you do not have more people in the [risk] pool?” asked Sen. Claire McCaskill (D-MO). “None of them [Republicans] can answer that question.”
It’s the wrong question as Judge Vinson sees it. When government lawyers insisted that Americans should be required to buy something based on an overly broad interpretation of the Commerce Clause of the Constitution, Vinson had this to say: “There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort,” he wrote. Nor did he accept the government’s attempt to shift the argument to the Necessary and Proper Clause of the Constitution by which Congress can enact “all Laws which shall be necessary and proper for carrying into Execution” those powers granted to the legislative branch of the government. He argued that Congress can’t create a problem and then use the clause to solve it because ”the more harm the statute does, the more power Congress could assume for itself[.]“
Yet much like Wednesday’s Senate vote, Judge Roger Vinson’s ruling, along with the Republican-controlled House of Representatives’ vote to repeal the act late last month, is symbolic. The health care bill is inevitably headed to the Supreme Court, which is where its fate will ultimately be decided. Considering the current composition of the court and its preponderance for rendering 5-4 decisions when anything construed as momentous is placed before it, it is likely that this case will be no different–meaning “swing vote” Justice Anthony Kennedy will tilt the nation’s highest court one way or the other.
Recognizing that most Americans want this issue decided as quickly as possible, Sen. Bill Nelson (D-FL) introduced legislation in the same Senate session asking the Supreme Court to bypass federal appeals courts and take up the case. That decision would be up to the Supreme Court, which, as a rule, prefers appellate courts to rule before becoming involved.
Reflecting the current uncertainty, two of the 26 states involved in Judge Vinson’s ruling, Wisconsin and Florida, have decided, on the basis of that ruling, to treat the law as if it no longer exists. The other 24 will maintain the status quo, based on the assumption that an appeals court will issue a stay against the judgment.
In the meantime, the political maneuvering goes on. Democrat Senator Max Baucus (D-MO) contends that the “revenue neutral” bill’s repeal would cut twelve years off the current life of the Medicare trust fund, and eliminate an additional drug coverage benefit for Medicare beneficiaries. Senate Republicans counter that collecting ten years of taxes for six years of spending and double-counting Medicare savings is an accounting gimmick masking the bill’s huge cost, even as it will impose ”high taxes, less choices and bureaucrats making health care choices for Americans.”
There is little question that a Supreme Court ruling, while ostensibly addressing health care, will also illuminate a fundamental understanding of the limits–or lack thereof–of federal power. Despite all contentions to the contrary, if the Commerce Clause can be construed to regulate commerce which would not exist without government coercion, it becomes impossible to imagine what it wouldn’t regulate. Perhaps it is cliched to say the character of the nation hinges on the decision of nine Supreme Court justices. Unfortunately, every cliche has a basis in truth.
Arnold Ahlert is a contributing columnist to the conservative website JewishWorldReview.com