All the hoopla and media coverage regarding Obama's jobs speech before a joint session of Congress on September 8 shadowed two federal appeals court decisions rendered the same day, Commonwealth of Virginia v. Sebelius, and Liberty University v. Geithner. The 4th U.S. Circuit of Appeals sitting in Richmond, Virginia handed down these decisions. The plaintiffs in both cases challenged the constitutionality of the individual mandate in the Affordable Care Act (ACA), a/k/a, Obamacare; both of these plaintiffs were shown the door, as the court ruled that neither had "standing" to sue, i.e., were not in a position to challenge ACA's mandate since it (mandate) is directed to individuals and not to private employers, or localities, including the sovereignty of a state. This was seen as a victory for the administration. That is questionable, since these two cases did not address whether the Congress properly exercised its Commerce Clause powers when it legislated that every American has to purchase health care insurance by the time ACA takes complete effect in 2014.
The university also argued in Liberty that citizens who don't purchase insurance would be taxed a penalty when filing income tax returns; the administration advocated similarly, but the court held otherwise. Under the federal Anti-Injunction Act, no court can consider a challenge to a tax before the levy has been paid, and no taxpayer has paid any such amount since ACA has yet to take effect.
In Commonwealth of Virginia, the court took exception to a recently enacted state law (Virginia Health Care Freedom Act) that precluded Virginians from having to buy health care purchase. The court rejected this notion, calling its passage a "smokescreen for Virginia's attempted vindication of its citizens' interest." In any event, the federal health care law does not impact Virginia's sovereign interests.
Where does all this leave us all at? Two federal appeals panels (6th and 11th) have decided by 2-1 margins that, respectively, the individual mandate is constitutional, and that it is not constitutional. That sets up a conflict between at least two federal appeals courts, and that is most often the prerequisite for the U.S. Supreme Court to take the case. Parenthetically, with all jurists weighing in on the new health care law and its constitutionality, including the lower federal (trial) courts from which the four appellate court decisions have arisen, an ever so slight majority find the mandate constitutional.
With it all but a certainty that the Supreme Court will now want to weigh in as the final word on whether the health care law is constitutional, consider what will occur if the mandate is found unlawful. The guts of the new health care law will be taken from it. The mandate was never Obama's first choice; he wanted the public option as that would create the necessary competitive effects to keep health care insurance affordable and accessible. (Most Americans wanted to have this option).
The mandate was created to get the insurance interests on board so that they and their Republican backers would be able to pay for the additional benefits provided for in ACA, like covering pre-existing conditions, while still being able to make unforeseen profits by obtaining premiums from every single citizen. It would be ironic indeed for the Supreme Court to declare void a funding mechanism that the insurance interests wanted in order to keep making money. Without the mandate, insurers would still have to pay for the new benefits provided in ACA, but without the additional revenues to pay for them. We thus all go back to square one with a health care system that millions of Americans cannot now even access nor afford and that only a public option can assist in remedying absent the constitutionality of the individual mandate.
When considering the mandate, the high court should keep in mind that it is a necessary tool to fund a fledgling new law whose main purpose is to stem the tide of what millions of Americans cannot even presently obtain, even as a right -- again, reasonable access to a health care system that is within reach for all financially. After all, without our health we have nothing at all. And if we do not have our health, the country also suffers economically because none of us can generate necessary income -- even if jobs were plentiful.
Robert Scheer: The GOP's Sick Priorities
The Main Street Alliance: Busting the "Shopping" Myth at the Heart of the Health Care Debate
Wendell Potter: Insurers' Allies in Congress Trying to Dismantle Reform Piece by Piece
Holly Cara Price: What Becomes of the Broken-Hearted?
Commonwealth of Virginia v. Sebelius :: Health Care Lawsuits
Case 3:10-cv-00188-HEH Document 161 Filed 12/13/10 Page 1 of 42
Republicans hate to see the President reallocate $ 4.3 Trillion Dollars over 10 years to the Hospitals, Nursing Homes, Doctors, Nurses and Research away from Parasite Insurance Companys.