Constitutionality, Presumptions, and Blatant Arrogance

Nothing helps a good workout like watching C-Span.

Yesterday, I was able to enjoy a lively debate from my elliptical trainer as Senator Mitch McConnell (R-KY) and Senator Dick Durbin (D-IL) grilled a panel of constitutional lawyers with questions about the constitutionality of the healthcare law today at a Judiciary Committee hearing. It didn’t take long for my heart rate to get to a good peak when I saw the exchange between these clowns.

Here are some highlights I found from this debate:

“The judge in that case, Roger Vinson, ruled the individual mandate -- which requires everyone to buy insurance by 2014 or else pay a penalty -- exceeds Congress' authority under the Commerce Clause of the Constitution, which regulates interstate commerce. He ruled the entire law "void" because the individual mandate provision can't be separated out from the rest of the law.

Vinson agreed with the states involved in the lawsuit that the government cannot force individuals to participate in the stream of commerce, in this case, the health insurance market, nor can it penalize those for inactivity, i.e. not buying health insurance.

Walter Dellinger, professor emeritus of law at Duke University, and Charles Fried, law professor at Harvard Law School -- two of the lawyers on Wednesday's five-attorney panel -- agreed with that stance. Sooner or later, they said, everyone will have to get medical treatment, and when they do, if they lack insurance, the costs will be passed on to others.

Not so, argued panelist Michael Carvin, a partner at the Washington law firm Jones Day.

"Sitting at home and staying out of the insurance marketplace is not commerce," said Carvin. "The decision to sit at home doesn't effect Insurance Company A's ability to contract with Citizen B."

They were joined by John Kroger, the Oregon attorney general, who said the individual mandate is constitutional, and Randy Barnett, a law professor at Georgetown University, who said it is not.

In his opening statement, Sen. Charles Grassley (R-Iowa) said that if the individual mandate is found to be constitutional, then Congress could force Americans to buy any good or service.

...Another common argument in the debate is that the healthcare reform law marks the first time that Congress has used its power to mandate that citizens purchase something on the private market.

Fried said that isn't true and pointed to an century-old case law, Jacobson v. Massachusetts In 1905, the Massachusetts government mandated that all citizens get a smallpox vaccination or else pay a $5 fine -- a hefty sum in those days. The Supreme Court sided with the state of Massachusetts.

But Carvin said that case is about the states having the authority to pass laws to promote health and welfare, and would be out of the scope of the Commerce Clause. A more apt comparison to the individual mandate, he said, would be like Congress passing a law requiring everyone to take vitamins.” (1)

“Majority Whip Dick Durbin, D-Ill., vowed that repeal "will not go forward."
Durbin called a Judiciary Committee hearing on the law's constitutionality, which a federal judge in Florida struck down Monday.

"Many who argue the Affordable Care Act is unconstitutional are the same people who condemn judicial activism," he said. "They are pushing the Supreme Court to strike down this law because they could not defeat it in Congress and they are losing the argument in the court of public opinion."

During debate Wednesday, Sen. John McCain, R-Ariz., dismissed the Congressional Budget Office's estimate that repeal would increase the deficit by $230 billion as "garbage in, garbage out," The Hill reported.

He said the CBO failed to account for rising reimbursements to Medicare physicians, which he said was estimated to cost $208 billion over 10 years. He also predicted a long-term care insurance program would eventually have to be funded by the government.

The National Retail Federation endorsed repeal Wednesday.

Requirements for employers to provide health coverage or pay penalties, to take effect in 2014, are "deterring job growth today at the expense of tomorrow's economy," said NRF leader David French.” (2)

I watched as attorneys pontificated back and forth, each with their own agendas and theories about why they thought their opinion was best. What struck me with the most horror was a senator by the name of Richard Blumenthal (D-Conn.). In summary, here is what I understood from Senator Blumenthal: Since the law was passed by a “coequal” Congress, and since Congress knows best what is constitutional and what is not constitutional, then there should be no question here. If Congress passed it, we should presume that the law is constitutional. Why bother wasting the Supreme Court’s time when Congress knows best, right?

Working in the medical field, there are many shades of gray, as there seem to be in the field of law. Apparently there is one screaming difference: in the medical field, we are obligated to do the right thing. The right thing ethically, the right thing legally, but more than anything, we do the right thing by our patients. The autonomy and freedom of our patients to make decisions about their well-being is a patient right that is held in the highest regard by the medical profession.

That is called liberty.

Senator Blumenthal apparently expects the medical field to bend over and hand that autonomy to the federal government as they decide what is the right thing to do for our patients.

No, sir. Not on my watch.

The “coequal” Congress was far from coequal – it was a heavily biased Congress in both houses that was brought into office by an ingenius marketing campaign by an otherwise no-name senator that learned how to campaign on smoke and mirrors. And even with a filibuster-proof majority, they still had to fight to push through legislation that was a slap in the face to the Constitution – while Americans rallied against this legislation on the lawns of the nations’ capitol.

While pushing through the legislation, Americans were patronizingly told, “Well, if you have a better idea, we’d love to hear it.”

So we gave our ideas and were ignored.

Some of the panel attorneys yesterday gushed over the wonderful thing that the healthcare law is – constitutionality be damned. I am still baffled over their line of thinking. What kind of a wonderful thing is it when you require United States citizens to purchase health insurance – but not allow competition among insurance companies, so for all practical purposes people have less than a handful of options to choose from – and then threaten fines and possible jail time for violations? Moreover, impose the same restrictions on employers who are already struggling to stay afloat and keep people at work in an economy that has yet to come out of the toilet, no matter what the esteemed President says?

Sure it’s a wonderful thing. If you’re an executive for one of those private insurance companies who claimed the biggest financial victory in history when the healthcare law passed. The one group of people that advocates for this healthcare law love to vilify is the exact group of people that will stand to make an insane profit when this law is in full effect. Nice work, Congress.

I would also like to address another issue that has been handed to me a hundred times if it’s been handed to me once. In every debate that I have participated in about the individual mandate, without fail, someone barks, “Well, the government makes us buy car insurance. What’s the difference?”

You can choose not to have a car. We weren’t given a choice as to whether or not we have a pulse. You can choose to ride a bike, walk, or use public transportation if you don’t want to purchase car insurance. And if you do choose to purchase it, you have the benefit of a competitive market that makes the cost more affordable. There is no choice in the healthcare mandate. There is no provision to protect Americans from costs that have already begun to skyrocket as salivating insurance executives prepare to pad their wallets with windfall profits.

I have been watching the efforts to repeal this healthcare disaster over the past weeks with a great deal of trepidation. I fear that this may be nothing more than lip service from the Republican party, and now that the bill has failed in the Senate, we will hear an “Oh, well, we tried.”

No, actually, you didn’t.

Until the Republicans in Congress pursue repeal of the healthcare law with as much persistence as the President had when he shoved this legislation through with no regard for the opinion of the American people – until Republicans in Congress put as much blood, sweat and tears as everyday Americans put into fighting this law over the past two years - only then can they say with any level of sincerity that they really tried.

Keep your campaign promise, GOP. We voted you into office because of that promise. We will vote you out if you don’t remain true to it.



REFERENCES:

(1) Medical News: Senate Panel Probes ACA’s Constitutionality http://www.medpagetoday.com/Washington-Watch/Reform/24664

(2) UPI.com: Senate debate on healthcare bill heats up: http://www.upi.com/Top_News/US/2011/02/02/Senate-debate-on-healthcare-bill-heats-up/UPI-39941296639060/