Supreme Court may weigh coverage mandate

Health care reform now in court's hands

The same Supreme Court justices whom President Obama blasted during his State of the Union address this year may ultimately decide the fate of his crowning achievement as more than a dozen states have called on the courts to strike down the health insurance mandate of Democrats' health care overhaul - a move that would threaten the entire law.

Two major constitutional challenges have been levied against the new law, one by the state of Virginia, which enacted a law exempting its citizens from the federal health insurance mandate, and another by Florida and 12 other states. Legal scholars are divided on the merits of the cases, and even Congress - through its research service and its budget scorekeeper - has said it's an open question whether the provision could pass constitutional muster.

At issue is the scope of the federal government's power over states and individuals. Critics of the law say the requirement that all Americans buy insurance or pay a fine, if allowed, would mean that Congress has virtually boundless authority to compel actions. Proponents argue that legal precedents support an expansive reading of the legislative branch's license to regulate such activity.

"This is one of the most consequential lawsuits in our generation," said Baker Hostetler lawyer David B. Rivkin Jr., who is serving as outside counsel to the 13 states that have filed suit. "The fact you have so many different state attorneys general, Republicans and Democrats, from a variety of states coming together to do this just underscores how strongly they feel that the act infringes core constitutional interests of their respective states."

The mandate, which doesn't take effect until 2014, is central to Democrats' goal of insuring about 32 million more Americans. The law would offer tax credits to low-income individuals and allow young adults to remain on their parents' policies longer.

Both of the state lawsuits challenge the federal government's authority under the Commerce Clause, which grants Congress the power to regulate commerce among the states. The Florida case also cites a violation of the 10th Amendment, which reserves those powers not spelled out under the federal government in the Constitution to the state governments, and argues that the health care law's expansion of state Medicaid programs threatens state sovereignty.

Among the arguments against the law is that because it does not allow for purchasing insurance across state lines - the insurance exchanges are state-based - the buying of health insurance does not constitute interstate commerce. In addition, the plaintiffs say, not purchasing health insurance does not constitute an economic activity.

"Thus far in our history, it has never been held that the Commerce Clause, even when aided by the Necessary and Proper Clause, can be used to require citizens to buy goods or services," Virginia Attorney General Kenneth T. Cuccinelli II argues in his state's lawsuit. "To depart from that history to permit the national government to require the purchase of goods or services would ... create powers indistinguishable from a general police power in total derogation of our constitutional scheme of enumerated powers."

While a requirement to buy health insurance might be new, some legal analysts say, Congress can in fact define an economic activity as something that results from not taking an action.

"The 1964 Civil Rights Act prohibits hotels and restaurants from discriminating based on race and thus prohibits inactivity," said Erwin Chemerinsky, dean of the University of California Irvine School of Law, noting that law relied upon the Commerce Clause. "The Supreme Court has said that Congress can regulate economic activity that has a substantial effect on interstate commerce. Buying or refusing to buy insurance is economic activity. The effect on the economy is enormous."

Democrats Death By Suicide

The government takeover of health care will go down in history as the worst piece of legislation to emerge from a Congress held in general disdain by the American people. The only bipartisanship on the health bill was in the opposition.

Usually autopsies are reserved for after the patient has died, but in this case it is useful to get ahead of the matter. The malformed health legislation is not the only reason Democrats are facing political extinction in November, but it is one of the most dramatic. The legislative process in this country has never been so unseemly. Arm twisting, backroom deals, special privileges and potentially criminal "government jobs for votes" agreements became a normal way of doing business. House Speaker Nancy Pelosi fixated on the mantra that the Democrats' health plan is "historic," but so was the Black Plague.

President Obama went to Capitol Hill on Saturday to give a final pep talk to Democrats, where he absurdly called his socialist health care measure "one of the biggest deficit reduction measures in history." This contradicts the chief actuary at the Centers for Medicare and Medicaid Services, who says his staff currently has no idea what the impact of the plan is "due to the complexity of the legislation." Democrats have been hoodwinked into believing they won't pay a political price for their actions, but they will soon discover they miscalculated.

The new system will suffer a tsunami of bad publicity when states sue the federal government over unfunded mandates, when the IRS begins enforcing the aspects of the bill that voters never knew existed, when small businesses start firing employees because they cannot afford the higher costs of the new system, when new and unforeseen costs blow out the already record federal budget deficit, and when seniors begin to feel the impact of Medicare cuts. All of this is what Mr. Obama euphemistically calls "bending the curve" but which seniors will find out is better termed "denial of care." Whether the formal "death panels" will convene before the November elections is still to be determined.

Many members of Congress probably don't know exactly what is in the bill. The 2,300 pages of "fixes" to the Senate bill presented last week were only a draft, and no member can be certain what has been slipped in. A frantic Democratic Party memo sent out Thursday instructed members -- twice, in italics -- not to "get into a discussion of details of the [Congressional Budget Office] scores and the textual narrative" with the bill's opponents. But the devil was in those details. Mrs. Pelosi's offhand statement that members would learn what was in the bill after it was passed should have been a warning.

The majority party was even having problems over the weekend determining if they could vote to amend a law before it was signed by the president. It is a sad day for America when senior members of Congress either dont understand the Constitution or no longer think it applies.

Democrats in Congress refuse to believe the contempt with which the American people hold them. Gallup shows congressional approval ratings in the teens and headed downward. Gallup also found that "more Americans believe the new legislation will make things worse rather than better for the U.S. as a whole, as well as for them personally."

Democrats are in much worse shape than in 1994 when they lost power, and the opposition is far more energized. Once voters have a chance to tell the most irresponsible government in American history that enough is enough, the Democrats' brief reign will expire, and be deemed death by suicide