Bit by bit, Obama repeals #Obamacare, so Republicans don’t have to. Updated: Sebelius denies delay?

March 12, 2014
"Train wreck"

“Train wreck”

It’s long been known that the individual mandate is the foundation of the Affordable Care Act. Without the requirement for healthy young people to buy more insurance than they need or pay a penalty tax protection money, there would never be enough revenue coming into the system to pay for the elderly and those with preexisting conditions. And amidst all the waivers (1) and delays for unions and businesses claiming hardship under the new law, the one thing they’ve refused to rescind was the individual mandate, itself.

Until last week, when it was done in secret:

ObamaCare’s implementers continue to roam the battlefield and shoot their own wounded, and the latest casualty is the core of the Affordable Care Act—the individual mandate. To wit, last week the Administration quietly excused millions of people from the requirement to purchase health insurance or else pay a tax penalty.

This latest political reconstruction has received zero media notice, and the Health and Human Services Department didn’t think the details were worth discussing in a conference call, press materials or fact sheet. Instead, the mandate suspension was buried in an unrelated rule that was meant to preserve some health plans that don’t comply with ObamaCare benefit and redistribution mandates. Our sources only noticed the change this week.

That seven-page technical bulletin includes a paragraph and footnote that casually mention that a rule in a separate December 2013 bulletin would be extended for two more years, until 2016. Lo and behold, it turns out this second rule, which was supposed to last for only a year, allows Americans whose coverage was cancelled to opt out of the mandate altogether.

The WSJ article then goes through the various classes of exempted individuals and what they have to do to claim that exemption, but the short version is that if you feel you’ve been burdened or harmed by Obamacare –including not being able to afford the new, more expensive even though subsidized policies mandated by Obamacare– you can have a two-year hardship exception based solely on your word.

Yes, you read that right: our new, wonderful, Heaven-on-Earth healthcare-for-all law is now recognized as such a problem that people have to be exempted from obeying it.

Why are they doing this, you ask, since it’s sure to throw the ACA’s finances even more out of whack? Why are they gutting the core of the bill that has been a progressive dream since at least Truman? Trust me, it’s not from empathy for the very people the law is harming.

Have a look at this article from the Conservative Intelligence Briefing and this other from National Journal. (And, for a laugh, this desperate spin from DNC Chairwoman Rep. Debbie Wasserman-Schultz. (2) ) Both deal with the possible fallout from the Republican win in the special election in Florida’s 13th congressional district, one the Democrats thought they had a good chance to win against a flawed Republican candidate.

Instead, they lost, and a good part of the reason was popular anger over Obamacare (3). And now they’re looking at possibly losing seats in the House, in addition to an increasingly-likely loss of their Senate majority.

None of this is guaranteed, of course, but it’s a scary-enough prospect to have them reaching for the whisky bottle while quietly throwing Obamacare’s key provision under the bus, a move that stinks of desperation.

This is significant not just for its electoral consequence, either. Once exceptions like these are granted, it will be danged hard for Obama or a future Democrat president to take them back  and start enforcing the rules (4). And with The One establishing the precedent that the president can ignore laws that are inconvenient to him, what’s to stop a future Republican president from ignoring the ACA altogether?

The Republican-dominated House has voted roughly 50 times to repeal Obamacare since taking control in 2011. I think they can take a breather.

Bit by bit, Obama is repealing it for them.

via Salena Zito and Ben Domenech

PS: I agree with Josh Blackman. Republicans should send opt-out forms to all their constituents — and the Democrats’, too.

PPS: For those who are having trouble affording insurance under the Affordable Care Act, the president suggests cutting back on cable TV and cell phone use. No, really.

Footnote:
(1) And that was just through 1Q 2011…
(2) That is, the race-baiting Debbie Wasserman-Schultz
(3) As Jim Geraghty points out, Republicans have, thank God, improved their ground-game, too.
(4) Do you really think he’s going to reimpose them in 2016, just as the presidential race heats up? No way…

UPDATE: Sebelius denying there’s been a delay to the individual mandate? Hmmm…

(Crossposted at Sister Toldjah)


11th Circuit Court strikes a blow for liberty and against ObamaCare

August 12, 2011

The court in a 2-1 ruling (and in an opinion written by a Clinton appointee) declared the individual mandate portion of the Patient Protection and Affordable Care Act unconstitutional because it sets no limits to Congress’ reach:

“Ultimately, the government’s struggle to articulate cognizable, judicially administrable limiting principles only reiterates the conclusion we reach today: there are none,” the court wrote.

The government had tried to make a series of fact-based arguments for why health care is unique, but that failed to sway the court, concluding that future Congresses could make all sorts of arguments as to why any given “unique.”

“Presumably, a future Congress similarly would be able to articulate a unique problem requiring a legislative fix that entailed compelling Americans to purchase a certain product from a private company,” the opinion reads. “The government apparently seeks to set the terms of the limiting principles courts should apply, and then asks that we defer to Congress’s judgment about whether those conditions have been met.”

The judges write that, “The government’s five factual elements of ‘uniqueness,’ proposed as constitutional limiting principles, are nowhere to be found in Supreme Court precedent. Rather, they are ad hoc, devoid of constitutional substance, incapable of judicial administration—and, consequently, illusory. The government’s fact- based criteria would lead to expansive involvement by the courts in congressional legislation, requiring us to sit in judgment over when the situation is serious enough to justify an economic mandate.”

Later on, the court reiterates that: “We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers. ‘Uniqueness’ is not a constitutional principle in any antecedent Supreme Court decision.”

And the judges add that “the difficulties posed by the insurance market and health care cannot justify extra-constitutional legislation.”

Though the district judge whose case was under appeal here had voided the whole of ObamaCare, in his article, Philip Klein points out that the majority struck down only the individual mandate and left the rest of the structure intact. Klein speculates that this actually works in favor of the opposition, because, by constructing their decision narrowly and relying on a lack of Supreme Court precedents upholding the government’s argument, this may —may— be persuasive to moderate Justice Kennedy, since it frames leaving the mandate in place as the more radical decision.

And if the individual mandate is struck down, the rest of the act becomes untenable and vulnerable to repeal.

Regardless, we are almost now guaranteed a showdown in the Supreme Court, probably just as the 2012 election campaign hits high gear, since the 11th Circuit’s decision contradicts that of the 6th Circuit, which upheld the law. In situations like that, the Court almost always intervenes. Stay tuned…

Meanwhile, this is great news for fans of individual liberty, limited government, federalism, and a health-care policy that doesn’t amount to national economic suicide.

(Crossposted at Sister Toldjah)


ObamaCare: the penalty for not buying insurance

June 19, 2010

After much back and forth over whether the penalty the government may assess for not carrying the proper health insurance constitutes a tax (and thus breaks Obama’s promise not to raise taxes on the middle class), the matter is settled.

According to President Obama’s own Department of Justice, it is.

So there.  Phbbbttt

(via Power Line)


A constitutional perfect storm?

April 6, 2010

At American Thinker, Larrey Anderson takes a cautious view of the chances for success in the suits by state Attorneys General against ObamaCare, especially the individual mandate, because the states have since the Great Depression largely cooperated in the cession of power to Washington. It’s a point well-taken, though I disagree with his example of the interstate highway system; I think that clearly falls under the Commerce Clause.

However, Mr. Anderson does believe that a combination of suits from the states and individuals harmed by ObamaCare might well have a chance. In a rather shotgun approach, he argues for relief based on more than half the Bill of Rights, specifically the 4th, 5th, 6th, 7th, 8th, and 9th amendments. Follow the link above for the full article, but I want to quote his argument regarding the 5th amendment, which quite matches my own thinking. The hypothetical situation is that of a woman who chooses not to get insurance for herself, and then contests the penalty the IRS assesses against her:

The “penalty” is a violation of the young mother’s 5th Amendment rights: “No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” [Emphasis mine.]

Since the IRS will garnish the mother’s wages, there will be no due process for the mother without a protracted legal battle through many strata of bureaucracies. The woman’s money is her private property. It is being taken from her, for public use, without any (let alone “just”) compensation.

I think this is inherently correct, though an attack based on this reasoning would likely meet a lot of resistance, because it could be interpreted as a challenge to the whole of the IRS’ administrative enforcement powers.  However, by combining the the taking of private property without just compensation condition with the lack of due process, an argument can be made limited to the specific abuse of power, not the structure of IRS enforcement in total.

Anderson also makes an interesting and ironic argument related to the 9th amendment, which protects the unenumerated rights of the people.

Finally, the mother could sue under the 9th Amendment. The 9th Amendment is short and sweet:

  • The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


What is interesting about the possibility of a 9th Amendment challenge to ObamaCare is that previous “progressive” decisions issued by the Supreme Court could offer some of the best ammunition for the case that the legislation is unconstitutional.

Anderson cites the precedent of Griswold v. Connecticut, a birth-control case that laid the legal foundation for Roe v. Wade, and which relied heavily on 9th amendment protections. He again makes an interesting argument that the same 9th amendment reasoning applied in Griswold also applies against the Federal government’s claim to the power to enforce an individual mandate. Since Griswold and the cases based on it are darlings of the progressive Left, it would be ironic indeed if the same amendment and constitutional logic were used to undo the Left’s golden-calf legislation.

RELATED: Some earlier thoughts on the matter.