Is Obama healthcare law constitutional?

Shouldn’t that have been determined before it was passed?

Though one recalls former House Speaker Nancy Pelosi saying they had to pass the bill to know what was in the bill. Which was too gigantic for anyone in Congress to have actually read in the short time given before the final vote after rancorous battle and arm-twisting in congressional meeting rooms.

Putting aside for the moment other issues of contention with ‘Obamacare’ as it passed and continues to unfold, the main challenge is a basic one.

Is President Obama’s health-care overhaul constitutional or not?

It’s a question we’ve been asking here on this blog for a long time — and well before the law was passed in March of 2010. At last, some resolution is on its way.

All the top legal experts have been asking and working and preparing for this all along.

The Supreme Court of the United States today agreed to hear several ObamaCare challenges – putting the issue of the constitutionality of the flawed law front-and-center with a decision by the high court just months before the November 2012 elections.

This is the day we have been waiting for. It was clear that ObamaCare would ultimately be decided by the high court when it was signed into law nearly 20 months ago. By taking these cases, the high court can bring clarity and end the confusion about a law that most Americans have consistently opposed. We have argued from the beginning that ObamaCare – including the individual mandate – is unconstitutional.

That always seemed like the clearest question to answer on this convoluted package of plans and rules.

Here’s what’s clear – most Americans oppose the health care law. They have since it was passed more than a year-and-a-half ago. Now that the pro-abortion, government-run law is before the Supreme Court, we want to hear from you. It’s now more important than ever for you to voice your opposition to this flawed health care law.

ACLJ gives citizens the opportunity on that site to add their name to the amicus brief the law center is filing with the Supreme Court, along with over a hundred members of Congress.

CNN Senior Legal Analyst Jeffrey Toobin stated the obvious when he said this case has huge political implications.

“But I think it’s likely to be a close question in the Supreme Court, and it is certainly the most important case that the court has had since Bush v. Gore 11 years ago,” Toobin said.


And ‘No drama-Obama’ is now another catchy campaign slogan that seems like a distant memory.

Obamacare illegal?

Last week, a vote to repeal Obamacare gathered more votes than last time around and only narrowly missed passage. But then it was declared unconstitutional anyway…

The basics.

Late Monday afternoon in Pensacola, Fla., U.S. District Court Judge Roger Vinson delivered the second major judgment that the centerpiece of the Patient Protection and Affordable Care Act—the “individual mandate” that forces Americans to buy health insurance whether or not they want it—is unconstitutional.

In December, District Court Judge Henry Hudson ruled against the mandate in a separate lawsuit brought by the state of Virginia. But Judge Vinson’s sweeping and powerfully reasoned decision this week went much further, striking down the entire health-reform law on the grounds that the individual mandate was not severable from the rest of the statute. And the plaintiffs in Judge Vinson’s courtroom included the attorneys general of 26 states, not just one. His opinion thus casts a dark shadow over ObamaCare until the Supreme Court issues a final ruling on the matter.

The sooner the better. If this gets drawn out in appeals courts for the next couple of years, nobody wins. Until it’s decided, the arguments go on… 

Now that the constitutionality of the individual mandate under the Commerce Clause has come under fire, proponents of Obamacare are attempting to shift the debate onto what they view as friendlier ground—the broader power of Congress to impose taxes.


When it comes to the legislation itself, the key question actually comes down to semantics. It’s broadly agreed that tax breaks are constitutional. The individual mandate could’ve been called the “personal responsibility tax.”

Something so basic as this should be clear. But…

It’s not at all clear that Congress should be able to pass something under the rubric of a penalty and then later defend it as an exercise of its taxation policy. That kind of switcheroo is not just semantics…it has actual constitutional implications.

Which gets back to the ruling at hand. And what it means when applied.

Using crystal clear language, the Judge argues that the government should not enforce a law that a judge declares unconstitutional.


the Obama administration appears willing to ignore the court’s decision and continue to enforce the law. So, in light of the federal government’s decision, what is the point of have the Constitution or a legal system at all?

The administration is probably eager to ignore that ruling, given the federal judge’s explicit decision and reasons for it.

The Framers believed that limiting federal power, and allowing the “residual” power to remain in the hands of the states (and of the people), would help “ensure protection of our fundamental liberties” and “reduce the risk of tyranny and abuse.”

That’s the point of the Constitution and its original intent, and it is driving the popular activism in the country…and what drove it to replace so much of Congress.

President’s SOTU show prep

In radio, we do a lot of show prep, researching relevant materials on the topics and guests we’ll be covering on a particular program, and sometimes that requires a sweeping review of wide-ranging resources to pluck the gems and see the greater picture.

That thought occurred to me when I saw Rocco Palmo’s post about the USCCB President’s state of the union letter, in advance of the US president’s address. I could have linked directly to it on the USCCB site. But it benefits from this buildup.

It might be another week until President Obama ascends the rostrum of the House chamber to deliver his “State of the Union” address, but in a letter dated Thursday, the new president of the US bishops, Archbishop Tim Dolan of New York, continued his predecessor’s tradition of outlining in depth the bench’s policy priorities and areas of concern to the members of the 112th Congress.

Lest anyone needed reminding, the US’ roughly 68 million Catholics comprise, by far, the nation’s largest religious body.

And that is followed by the the full text of Dolan’s letter. Which is also here. Must reading for a faithfully engaged electorate.

But back to Whispers for this

(At the same time, with the House taking up its new Republican majority’s long-pledged debate and vote on the repeal of the health-care reform package passed and signed into law last year, the following letter, dated today, was sent to its 435 members from the conference’s three key chairs on the health-care debate: the Pro-Life chair Cardinal Daniel DiNardo of Galveston-Houston; the Migration chair, Los Angeles Coadjutor-Archbishop José Gomez, and the Domestic Policy chair, Bishop Stephen Blaire of Stockton)

Members of Congress acknowledge the role of the bishops of pointing out “certain fundamental moral parameters” in creating law and social policy. Altogether, this is richly resourceful for President Obama as he prepares for the SOTU. I know how much I appreciate strong show prep before addressing important matters.

Two things come to light about Obamacare

The health care legislation that was rushed urgently into a frenzied weekend vote and passage recently was so cumbersome and unwieldy, virtually nobody actually read it. Remember Speaker Nancy Pelosi saying ‘we need to pass the bill to find out what’s in it’? Well they did, and we are.

Here are just two things that have emerged in the past few days. They deserve attention.

First, the Washington Post raised the issue of physician conscience protection or lack thereof.

Deep within the massive health-care overhaul legislation, a few little-noticed provisions have quietly reignited one of the bitterest debates in medicine: how to balance the right of doctors, nurses and other workers to refuse to provide services on moral or religious grounds with the right of patients to get care.

That little word is being distorted beyond recognition to disguise acts against human life and dignity. Just look at the former Hemlock Society renaming themselves ‘Compassion and Choices’ touting their care and aid in dying.

Advocates for protecting health workers argue the new law leaves vulnerable those with qualms about abortion, morning-after pills, stem cell research and therapies, assisted suicide and a host of other services. Proponents of patients’ rights, meanwhile, contend that, if anything, the legislation favors those who oppose some end-of-life therapies and the termination of pregnancies and creates new obstacles for dying patients and women seeking abortions.

That’s a lot of politically-correct doublespeak.

The debate has focused attention on President Obama’s plan to rescind a federal regulation put into effect by the previous administration to protect workers who refuse to provide care they find objectionable. Soon after taking office, Obama announced he would lift the rule, arguing it could create obstacles to abortion and other reproductive health services.

It did not change abortion law or access to it, or contraception for that matter. It only respected and protected health care workers’ moral opposition to certain procedures and/or medications.

“The act is thousands of pages of new government power, decision-making and funding,” said Matthew S. Bowman of the Alliance Defense Fund, which represents workers who object on religious grounds to being required to provide some forms of health care. “Any government power over health care can be exercised in a way that discriminates against pro-life health providers, especially when officials already support abortion and oppose enforcement of conscience laws.”

Besides the expansion of power in the new health care law, there’s the problem of its cost. Which is far more than the Obama administration represented in the runup to the congressional vote, notes Politico.

Congressional Budget Office estimates released Tuesday predict the health care overhaul will likely cost about $115 billion more in discretionary spending over ten years than the original cost projections.

Re-read that sentence and let it sink in, if terms like ‘billions more’ can still penetrate our saturated consciences.

The additional spending — if approved over the years by Congress — would bring the total estimated cost of the overhaul to over $1 trillion.

And the key to that sentence is the fact that Congress still has to approve the spending for this legislation, piecemeal. That’s where there’s hope. Maybe they’ll finally pay attention to the will of the people, who they represent. They’ll certainly hear from them in November.

Healthcare law unconstitutional?

Let’s find out.

The Center for American Progress positively beams that “the University of Washington held a debate about the constitutionality of the recently passed health care reform bill…[but] none of the panelists at the debate argued that the bill was unconstitutional because the organizers of the event couldn’t find any law professors who held that view.”

The folks at U-Dub obviousl y didn’t try very hard.  My Cato Institute colleague David Kopel compiles a list of law professors (himself included) who believe the law is unconstitutional.

Just looked at the brief video challenge there by Ilya Shapiro. Anybody taking him up on it yet? If not, why not?

If so, let the debate begin, and let it be widely shown. Citizens are already engaged. So are their states. Many states. Including Senate Majority Leader Harry Reid’s state.

Electronic medical records may have merit….

…..but they are not secure. Get used to the idea though. Starting with the fact that your records haven’t been as private as you may have thought.

Those privacy notices you sign in doctors’ offices do not actually give you any control over your personal data; they merely describe how the data will be used and disclosed.

Good time for that reminder. Because it’s going to be more available before long.

In a January 2009 speech, President Barack Obama said that his administration wants every American to have an electronic health record by 2014, and last year’s stimulus bill allocated over $36 billion to build electronic record systems. Meanwhile, the Senate health-care bill just approved by the House of Representatives on Sunday requires certain kinds of research and reporting to be done using electronic health records. Electronic records, Mr. Obama said in his 2009 speech, “will cut waste, eliminate red tape and reduce the need to repeat expensive medical tests [and] save lives by reducing the deadly but preventable medical errors that pervade our health-care system.”

Sounds good, right? Not to Americans concerned about their most private personal health matters.

When patients realize they can’t control who sees their electronic health records, they will be far less likely to tell their doctors about drinking problems, feelings of depression, sexual problems, or exposure to sexually transmitted diseases. In 2005, a California Healthcare Foundation poll found that one in eight Americans avoided seeing a regular doctor, asked a doctor to alter a diagnosis, paid privately for a test, or avoided tests altogether due to privacy concerns…

Electronic record systems that don’t put patients in control of data or have inadequate security create huge opportunities for the theft, misuse and sale of personal health information. The public is aware of these problems.

Which is only one of the more minor reasons the newly passed legislation is so overwhelmingly unpopular with the American people.

Privacy has been essential to the ethical practice of medicine since the time of Hippocrates in fifth century B.C. The success of health-care reform and electronic record systems requires the same foundation of informed consent patients have always had with paper records systems. But if we squander billions on a health-care system no one trusts, millions will seek treatment outside the system or not at all. The resulting data, filled with errors and omissions, will be worth less than the paper it isn’t written on.

The day after

Sunday night, Congress ended a dramatically long and intense weekend of backroom wrangling and avoiding the thousands of citizens who descended on Washington to protest the health bill and the majority of Americans who opposed it. So the deal got done, and some news analysts began saying immediately afterward that life in America has just begun to change.

How? Where to begin….

Start with the abortion business. It will expand now, here and abroad. My inbox is filling quickly today with statements and news releases from pro-life groups, faith-based organizations and individuals who have worked to exclude abortion funding from health care legislation.

C-Fam on Obamacare abroad.

Last Thursday State Department deputy secretary Jacob Lew presided at the rollout of a report at the Center for Strategic and International Studies (CSIS) on what they are calling “smart” global health policy… The new agenda admirably puts emphasis on maternal and child health. However…Secretary of State Clinton has made it clear that the Obama maternal and child health agenda includes abortion rights.

The American Life League says what got compromised in the final deal was human life.

“Last night the pro-life movement learned several hard lessons. Foremost among those is that it is never morally acceptable, and often it is not even politically expedient, to compromise human beings’ lives in the hopes of saving some others…

“The eventual passage of the health care bill, with its monumental support of child killing, exposed the foolishness of depending upon politicians to protect the lives of preborn babies.

“The American people need to preemptively take control again by declaring – in state after state across the nation – that a preborn human being is recognized as a person under the laws of their states.

Actually, states rights took a big hit with this legislation. Health care law that’s about to roll out will consolidate tremendous power in the federal government, which is why some 38 or more states are lining up to challenge the bill in the courts. But they’re right about the foolishness of depending on politicians… says Stupak’s decision was ‘unconscionable’.

The Executive Order fix is a band-aid solution that fails to solve the fundamental problems in this bill, and can be repealed at any time, for any reason, by the President or future presidents.  The Order is likely to be challenged by pro-abortion groups, and could be struck down by the courts.

“Regrettably, Rep. Stupak has abandoned those who have stood by him during the recent weeks and months.

“The Catholic Bishops along with and every major pro-life organization oppose this ‘fix.’  We have defended Rep. Stupak for months, but today we stand in protest of his decision.

A decision which CVA believes Stupak will come to deeply regret.

National Right to Life calls it a raw deal.

A lawmaker who votes for this bill is voting to require federal agencies to subsidize and administer health plans that will pay for elective abortion, and voting to undermine longstanding pro-life policies in other ways as well.  Pro-life citizens nationwide know that this is a pro-abortion bill.  Pro-life citizens know, and they will be reminded again and again, which lawmakers deserve their gratitude for voting against this pro-abortion legislation…

The executive order promised by President Obama was issued for political effect.  It changes nothing.  It does not correct any of the serious pro-abortion provisions in the bill.  The president cannot amend a bill by issuing an order, and the federal courts will enforce what the law says.

“The issue is just not that complicated,” says blogger Jay Richards.

There is a “deliberate omission” of Hyde-like restrictions in the Senate bill. Everybody knows this. If the Senate bill really were pro-life, then what possible objection could there have been to adopting the Stupak language (which simply extends the longstanding Hyde Amendment policy to the bill) and gaining a few more votes early on? Why the grueling battle for votes to the very end? Why have pro-choice groups fought so hard to keep the Senate bill free of Stupak language? Why the trouble of President Obama agreeing to issue an executive order limiting federal funding for abortion (which is yet another deception that won’t do anything significant.) All this tells us that the bill simply doesn’t maintain pro-life standards.

Stupak used to know that.

When this went down, House Minority Leader John Boehner gave one last impassioned speech before the vote, and then asked members of the House to at least be accountable to their electorate for their votes.

He asked for a roll call vote to be taken, as opposed to an electronic vote tally, a call [acting Speaker David] Obey denied.

So, here you go. What your representative did in that decisive moment.

Surprise, surprise

Bart Stupak caved, after all. 

His press conference was brief and sounded like it was hastily put together.

Stupak just addressed the media saying, “I am pleased to announce that we have an agreement. With the help of the President and Speaker we have been able to come with an agreement to protect the sanctity of life in Health Care Reform….that there will be no public funding for abortion in this legislation.  We’ve all have stood on principle.”

Stupak went on to say, “Today the President has announced that he will be signing an executive order.  That executive order will be signed after the health care legislation as it refers back to the health care legislation to reinforce that principle and that belief that we all stood on, no public funding for abortion.”

When I heard that in the live press conference, I thought ‘will be signed’? And what does the rest of that sentence really mean?

Stupak seems to be either incredibly trusting of the President, or completely unaware that the President Obama can reverse any executive order he writes.   Executive Orders can also be reversed by legislative action.

As for trusting the president, we do have some notable examples of him reneging on promises. Like the September 9th one to the joint session of Congress (and the nation) that his health care bill will not allow federal funding for abortion (though the Senate version he’s been pushing does). And the one last July to Pope Benedict that he would do whatever he could to reduce abortions, though he’d already reversed the Mexico City Policy that freed up funding for abortions overseas, among other things.

As for trusting the legislative branch of government not to reverse this order at some point, that takes a great leap of faith. But Washington is all about surprises these days.

Legislation by hook or crook

“[House Speaker Nancy] Pelosi reportedly told liberal bloggers Monday that “nobody wants to vote for the Senate bill,” and so she’s strongly considering the non-vote vote.”


A newly emerging Democratic plan to vote on health care reform without really voting on health care reform has critics riled up, as House Speaker Nancy Pelosi and her allies are accused of resorting to legislative trickery to send a bill to President Obama’s desk.

Senate Democratic leaders had already drawn jeers from Republicans for a plan to try to pass a follow-up health bill with only 51 votes, as opposed to 60. Now Pelosi and Rep. Louise Slaughter, D-N.Y., chairwoman of the House Rules Committee, are cooking up a plan to pass the original health bill from the Senate side without forcing rank-and-file Democrats to technically go on record in support of it.

What they’re brewing is unprecedented on this depth and breadth.

Here’s how the maneuver would work and why Pelosi wants it:

Before Congress can consider the package of changes that many lawmakers want in exchange for their support on the original bill, the House has to first pass the original bill from the Senate side.

Problem is, even with assurances that the package of changes will be considered, many House Democrats don’t want to go on record in support of the Senate bill — what with its sweetheart deals, tax on high-value insurance plans and other controversial provisions.

Enter the Pelosi tactic, known as a “self-executing rule.”

Under this tactic, the House could simultaneously approve the Senate version of the bill while voting on the package of changes. This would “deem” the Senate bill passed, though not directly show members voting in favor of passage.

How convenient. Just say it is so, and…it’s so.

It’s just so wrong.