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Rockntractor
11-25-2011, 08:05 PM
By PETER FERRARA on 11.23.11 @ 6:08AM

The key to the Supreme Court's upcoming ruling will be clear recognition of constitutional alternatives to Obamacare.

On November 14, the Supreme Court granted the Writ of Certiorari to hear the appeal of the cases testing the constitutionality of Obamacare. The resulting decision will mark an historic watershed not only in the restoration of constitutional jurisprudence, but in fundamental, market reform of the entire entitlement state.
Historic Decision Brewing
I write serving as the General Counsel of the American Civil Rights Union (ACRU), as one of several current positions. The ACRU was started by former top Reagan aide Robert Carleson, with former Attorney General Ed Meese as Chairman of the Advisory Board, along with other former Reagan Justice Department officials, besides myself as a former Reagan White House staffer.
In my capacity for the ACRU, I wrote and filed amicus curiae briefs on behalf of the ACRU in both the district court and the circuit court in the challenge by 26 states in the 11th Circuit that resulted in an order striking down the entire Obamacare law. I also wrote and filed ACRU amicus curiae briefs in the challenge by Virginia Attorney General Ken Cuccinelli in both the district court and the circuit in the 4th Circuit. The district court found the individual mandate unconstitutional, while the circuit court ruled that Virginia had no right to bring the case (two Obama appointed judges on the three-judge panel).
I am predicting that the Supreme Court will strike down the entire Obamacare law on a 5-4 ruling. That starts with the individual mandate, which the Court will find unconstitutional because it has reiterated several times in recent cases that it will enforce some limit on the Commerce Clause as justification for federal regulation, reserving the role of police power to regulate for the general public good to the states. Virtually all the judges in all the lower court cases concluded that there was no precedent anywhere in U.S. history upholding a law requiring citizens to purchase a good or service. Not participating in interstate commerce by choosing not to buy a product or service leaves no basis for regulation to compel such participation under the Commerce Clause power to regulate interstate commerce.
The fate of that argument before the Supreme Court is indicated by the thorough opinions of District Court Judge Roger Vinson in the 11th Circuit, District Court Judge Henry Hudson in the Fourth Circuit, and the majority of the 11th Circuit panel striking down the Obamacare individual mandate. These judges are good indicators as to how similarly minded Justices Scalia, Thomas, Alito and Chief Justice Roberts will come out.
While the decision of simpatico Judge Laurence Silberman upholding the Obamacare mandate is somewhat troubling, that reflected Silberman's poorly reasoned conclusion that he was bound as a lower court judge by the Supreme Court's 1930s precedent of Wickard v. Filburn. That case did not involve a regulation compelling anyone to purchase anything, but rather a defendant who had made an affirmative decision to take action to grow and use wheat in his farm operations, with the regulation applying directly to that action. That illogical blunder is not characteristic of Silberman's usually brave and far sighted work.
The Supreme Court will strike down the entire law as Judge Vinson did because even the government is arguing that Obamacare is unworkable without the individual mandate. Obamacare requires insurers to issue insurance coverage to everyone who applies at just standard rates, regardless of how already sick and costly they are when they first apply. Without a mandate requiring everyone to buy such insurance and so contribute to its costs, the healthy will just wait until they are sick and then buy the guaranteed insurance, avoiding any contribution to the costs (imposed by others) during all their healthy years. That will leave insurers covering primarily a very sick and costly pool, requiring very high insurance rates for financial survival. Those high rates will cause even more of the healthy and lower cost workers to drop out, resulting in an admitted financial death spiral for the insurers.
What makes this predicted legal result especially likely is that the Obamacare law overconfidently excluded a traditional severability clause, which provides that if any part of a law is found unconstitutional, the rest would remain intact. The drafters in their full Obama era arrogance thought excluding the clause would leave the courts less likely to strike down the mandate, which could then legally threaten the entire law. The drafters were so certain that the law would be so wildly popular, just like other overpromised entitlements, that no court would dare do that. But with strong public majorities so virulently detesting the law, the lack of a severability clause just assures that the Court will strike down the unworkable law.
Of course, the law will not work with a mandate enforced with a weak penalty anyway. The healthy will pay the penalty, just a fraction of the costly regulatory mandate, avoiding the bulk of the costs until they are sick. That will happen with the employer mandate as well. We see this practice under the quite similar Romneycare in Massachusetts.
The Key to the Case
I believe the key to winning the fifth majority vote of Justice Kennedy is the argument that striking down Obamacare does not mean there is no constitutional way for a health care safety net to assure no one will suffer from lack of necessary medical care. That argument has been a specialty of the briefs I have filed for the ACRU based on my own direct role in health policy, going back to the first paper proposing health savings accounts which I co-authored with John Goodman almost 30 years ago.
A complete health care safety net assuring essential health care for all can be achieved with no individual mandate and no employer mandate, for just a fraction of the cost of Obamacare, actually sharply reducing government in the process. That starts with the provision already in federal law, stemming from the Kennedy-Kassebaum legislation of the 1990s, providing for guaranteed renewability. That means if you already have health insurance, you cannot be terminated because you become sick. That is what the insurance insures against after all, so such termination would actually be fraud, as state law across the country recognized before Kennedy-Kassebaum. Under this regulation, insurers also cannot discriminatorily raise rates for those who become sick while insured. This law ensures that if you have health insurance, you will be able to keep it as long as you continue to pay the premiums.
Read More>http://spectator.org/archives/2011/11/23/the-bell-tolls-for-obamacare

patriot45
11-25-2011, 08:32 PM
Hey Rock I'm sure that was a nice article but I'm tired and there are alot of small words there. I'll try to read it tomorrow! :D

Rockntractor
11-25-2011, 08:40 PM
Hey Rock I'm sure that was a nice article but I'm tired and there are alot of small words there. I'll try to read it tomorrow! :D

Here, I'll sum it up.
Bama care bad!!:D:

patriot45
11-25-2011, 08:43 PM
I got it! Thats why I like my kindle, if I'm Tired I can make the words very BIG!!

Starbuck
11-25-2011, 08:52 PM
I am predicting that the Supreme Court will strike down the entire Obamacare law on a 5-4 ruling. That starts with the individual mandate, which the Court will find unconstitutional because it has reiterated several times in recent cases that it will enforce some limit on the Commerce Clause as justification for federal regulation, reserving the role of police power to regulate for the general public good to the states.
Good news from a knowledgeable source. I will sleep a tad better....:)

Apocalypse
11-26-2011, 01:34 AM
Lets not count our chickens just yet.

Kagan is on that court. And she will be aiding the defenders of the bill, I"m sure. I wouldn't be surprised if she's passing them pointers in their arguments.

This will be the hardest fight yet, and one we must not lose.

Elspeth
11-26-2011, 01:50 AM
Lets not count our chickens just yet.

Kagan is on that court. And she will be aiding the defenders of the bill, I"m sure. I wouldn't be surprised if she's passing them pointers in their arguments.

This will be the hardest fight yet, and one we must not lose.

The MANDATE must go down.

The publishing of all our medical information on the net must go down.

The rest of Obamacare must go down.


How can we help this along?

Rockntractor
11-26-2011, 02:08 AM
The MANDATE must go down.

The publishing of all our medical information on the net must go down.

The rest of Obamacare must go down.


How can we help this along?

Not much we can do, we are just the people that have the constitutional rights.

Elspeth
11-26-2011, 02:12 AM
Not much we can do, we are just the people that have the constitutional rights.

I hate being in this position. This is our lives in the balance here.:mad:

Rockntractor
11-26-2011, 02:22 AM
I hate being in this position. This is our lives in the balance here.:mad:

Somewhere along the line many individuals in our different branches of government decided the constitution gave them power to change the meaning of words and also the original intent of our laws, I still haven't found where the constitution gives them those powers.
Everything rests on whether those that know the difference between right and wrong have the courage to stand against this evil.

Starbuck
11-26-2011, 09:12 AM
Although it is not often said, many members of this forum feel as I do; that we are at a crossroads in history and the direction we now take will, if wrong, soon become irreversible.

If the wrong direction is taken we will end up like so many other countries, who have neither prospect of growth nor method of improvement. The difference will be that a weakened, effete America will have a great many enemies who will happily kick us when we are down to their level.

Obamacare is one of the paths to irrelevance for America.