Part one: Media disregards DOJ filing of health care legal brief with Supremes

January 10, 2012

Two important event were missed during the week of January 2nd because of the frenzy over the reporting about the the Republican presidential candidates and Obama’s unconstitutional recess appointments.  Part one is below.  Part two will be posted tomorrow and zeros in on Obamacare waivers.
Part one:  Media disregards DOJ filing of health care legal brief with Supremes (with frenzy over state election contests)
With all the hub bub and media frenzy in the week of January 2nd over the results of the Iowa caucuses; how the results would affect polls in  New Hampshire (a Santorum bounce?); speculation over the two New Hampshire weekend debates and their roles in determining the outcome of New Hampshire’s primary on Tuesday, January 10; further speculation over how the New Hampshire results would influence voters in the upcoming  primary in South Carolina, and finally Obama’s  brazenly authoritarian streak when he made recess appointments when the Senate really wasn’t in recess, thereby violating articles of the Constitution and rules of the Senate, is there any wonder why so little attention was given to an event on January 6th, that, without a doubt, has become the most controversial accomplishment of President Barack Obama’s domestic agenda.
The under the radar event was the filing by the White House of its health care legal brief with the Supreme Court.  This brief is only the first in a series of briefs the Obama administration plans to file with the Supreme Court:  

“The Obama administration filed papers on Tuesday, January 6th with the U.S. Supreme Court outlining its arguments in favor of the minimum coverage provision of the Affordable Care Act (Obamacare), the latest move in a high-stakes legal battle playing out in the heat of the presidential campaigns.

Justice Department lawyers essentially mirrored their arguments from cases in appeals courts. The government insists, that officials have the power to require minimum health care coverage, and that individuals who do not carry it will owe the government a penalty, which the Justice Department calls a tax.”

It was on November 14, 2011 that the U.S. Supreme Court decided to review the constitutionality of a key part of President Obama’s health care law just three days after a three judge panel in the District of Columbia had upheld the most controversial part of the law, the law’s mandate that people purchase heath insurance.

Oral arguments by the Supreme Court in the case will be held over a three day period, March 26 – 28, 2012.  The Court’s decision will mostly likely by issued by July of 2012 and will be monumental in scope, as it will occur in the heart of the upcoming highly contentious election year.

According to the lengthy Department of Justice brief, it argues that the requirement that uninsured people purchase coverage (with government subsidies) is Constitutional both under Congress’s power to regulate interstate commerce and because the mandate functions as a tax which, which the Constitution provides the Congress wide authority to levy.

Should the Supreme Court strike down the mandate, the DOJ argument also suggests that the Court will have to strike provisions in the law requiring insuring companies to sell coverage to everybody, which would prevent them from pricing sick individuals out of the market

Regarding the argument made by Obama administration’s Solicitor General Donald Verrilli about the Constitution giving Congress vast power to regulate economic activity and resolve a crisis in the national health care market after years of consideration and after a vigorous national debate, based on the interpretation of the commerce clause, there is no basis in this nation’s history for this type of law that mandates that individuals purchase something or face fines and penalties because it is in their best interests to do so. 

Even the Chicago Tribune related how the commerce-clause argument just didn’t work, a newspapers that shamefully endorsed President Obama in 2008.  As reported on December 19, 2010 by Richard A. Epstein: 

“Last week, U.S. District Judge Henry Hudson launched a mini constitutional revolution by using the commerce clause of the U.S. Constitution to strike the individual health care mandate, which everyone regards as the capstone of the Affordable Care Act, aka ObamaCare. That mandate requires individuals who do not buy their own health care insurance to pay $2,000 for the privilege of remaining uninsured.

For those not steeped in constitutional history, the entire constitutional debate is surreal. The commerce clause states the “Congress shall have the power to regulate commerce with foreign nations, among the several states and with the Indian tribes.” To the uninitiated this looks as though Congress could regulate at most an interstate railroad trip or telephone conversation with someone in Canada. Any regulation of health care would be off limits to the federal government, period.”

Here is what Republican Jo Ann Emerson of Missouri’s 8th Congressional District had to say for making the case to bring the Affordable Care Act health care law to the highest court in the land.  Her reasoning mirrored the lawsuits shepherded by 26 states and the National Federation of Independent Businesses through conservative district and circuit courts in 2011. The consortium also stated that the entire law must be found unconstitutional if the individual mandate fails the supreme Court test.

“A challenge to the constitutionality of this mandate is certainly in order. And it is not insignificant that a majority of U.S. states and the small business owners of our nation are bringing this lawsuit to the Supreme Court,” Emerson said. “The harshest effects of the law are going to be felt by small businesses and Americans who get health insurance through their employers. The individual mandate is the focus of this court challenge, but the law is full of hidden taxes and will prompt scores of extreme federal regulations.”

President Obama keeps taking this nation to the brink time and again.  If either Congress or the American people refuse to accept what Obama wants, he just goes it alone through his felt obligation to act on behalf of the American people through Executive edits and the use of his Czars to set policy. 

If the individual mandate of Obamacare is not  struck down, it will stand as another blatant power grab by the federal government.  Obama’s brazenly authoritarian streak cannot not be allowed to continue.  It is unconstitutional and destructive, and it make mincemeat out of what our Founding Fathers perceived for this nation through our Constitution based on the concepts of freedom and liberty .  It was not a form a government with a God-king issuing orders to an acquiescent populace! 





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