ObamaCare and the Constitution—An Update (no severability clause in it!)

WSJ ^ | 8/4/10 | BETSY MCCAUGHEY

[Daisyjane69]

Last November, a reporter asked House Speaker Nancy Pelosi if it was constitutional for Congress to require Americans to buy health insurance. Ms. Pelosi responded, "Are you serious?"

On Monday, U.S. District Judge Henry Hudson got serious. He denied Health and Human Services Secretary Kathleen Sebelius's motion to dismiss a lawsuit brought by the state of Virginia challenging the new health law. His ruling stated that it is far from certain Congress has the authority to compel Americans to buy insurance and penalize those who don't.

Judge Hudson's ruling paved the way for a trial to begin on October 18, with possible appeals all the way to the Supreme Court, a lengthy process. Some states will likely delay creating insurance exchanges and slow down other costly preparations for ObamaCare until its constitutionality is determined by this case.

If mandatory insurance is declared unconstitutional, the entire health law could collapse like a house of cards. Most complex legislation states that if one part of the law is struck down, other parts remain enforceable. But authors of ObamaCare chose to omit that clause, suggesting that the health overhaul won't work without mandatory insurance.

[Daisyjane69]

I did a search, but it doesn't appear that this was previously posted.

[Daisyjane69]

I’d laugh my ass off if this whole thing was tossed out because they forgot to include a few sentences in it.

Would serve them right!

[Yardstick]

*bump*

[TheConservativeParty]

I guess we can assume this judge was not appointed by a liberal president.

The homosexual activist judge who nullified millions of voters in CA, didn’t even think to recuse himself from the homosexual ‘marriage’ case. Looks like he’s getting away with it for now. It will go to the SCOTUS eventually where it hangs on one swing vote. Our nation cannot stand for long the way it is now. Voter nullification and ignoring the will of the people (DeathCare) will not be tolerated much longer by the people.

[capt. norm]

I’d laugh my ass off if this whole thing was tossed out because they forgot to include a few sentences in it.

Would serve them right!

And can you imagine if they tried to bring it up again and make that correction...especially this close to November...and after what happened in Missouri.

[loveliberty2]

"In a country whose constitution is derived from the will of the people directly expressed by their free suffrages, where the principal executive functionaries and those of the legislature are renewed by them at short periods, where under the character of jurors they exercise in person the greatest portion of the judiciary powers, where the laws are consequently so formed and administered as to bear with equal weight and favor on all, restraining no man in the pursuits of honest industry and securing to every one the property which that acquires, it would not be supposed that any safeguards could be needed against insurrection or enterprise on the public peace or authority. The laws, however, aware that these should not be trusted to moral restraints only, have wisely provided punishments for these crimes when committed." --Thomas Jefferson: 6th Annual Message, 1806. ME 3:418

Perhaps Pelosi et al haven't quite understood yet "the People's" power at the ballot box under their Constitution. She is the perfect embodiment of the saying that "power corrupts, and absolute power corrupts completely." Next, we need term limits, as the Founders intended.

[SkyDancer]

I think that now that the Supreme Court has shifted to Liberals with Kagan it’ll be Constitutional for the gov’ment to tell people what they have to buy ...

[Daisyjane69]

The thing is, didn’t anyone realize that they wouldn’t have another “bite at the apple?”

Given current polling numbers, I don’t think there is any chance Obamacare would pass if it were going in front of Congress now.

And unless I’m mistaken, this kind of correction is not eligible to be fixed in reconciliation, because it doesn’t involve the budget. It’s just a legal change.

Guess that would make it subject to the filibuster! LOL

(although the lawyers out there can weigh in and straighten me out)

[chris_bdba]

The SC hasn’t shifted anywhere. She is the replacement for Breyer and will have no more pull than he did.

[dforest]

bump for later

[EDINVA]

Actually, Kagan is replacing Stevens, not Breyer. It doesn’t represent a shift. Like Souter before him, Stevens was a disappointment to the Republican president who appointed him.

[Monorprise]

Actually thats a bad thing for us because if you just got rid of the individual mandate part and left the rest in place the result would be the collapse of the existing health insurance industry forcing most people to an out of pocket payer system.

This would have been the best thing that could happen to our health care system as it is the socialization of cost management thou health insurance that removed the price selection in the health-care market thus causing cost to go up as fast as possible.

[TigersEye]

If 0bamaCare is killed I'll laugh myself silly no matter what it is. I may even get drunk for the first time in 30 years.

Whose right is health care? Do you think it's yours?

Congressman Anthony Weiner has said that health care is not a commodity. If it isn't a commodity then do doctors and nurses have rights? Assigning health care the status of a right makes health care workers slaves to that right who must serve it. On what ground could a health care worker refuse to provide their products and services since that would violate the patient's "basic human right to health care."

That is a direct loss of individual rights for health care providers. The collective right of the people to receive health care would supersede the provider's individual right to set fees and hours or to change their occupational status or even decide how to apply their skills and knowledge if taken to its logical extreme. A collective right, by practical definition, is a state right because it is a right that is created and given by the government to those it chooses to give it to. It is not a natural right possessed by each person protected by the Constitution from the government. It is also a collective/state right by virtue of the fact that it would supersede individual rights when the two come into conflict. How else would the government view a right that it created and administers vs. one it has no control over?

Of course it isn't stated in any bill that a patient's right to care supersedes a provider's right to set fees and hours etc, but it doesn't need to. Rights, as always, are adjudicated in the courts. The Health Care Reform bills simply establish the foundation for the courts to rule in favor of the collective right.

Weiner’s view is collectivist, fascist and totalitarian. Collectivist because it has to be described as being a right of the many instead of the one and superior due to that fact. Fascist because ultimately the sole authority for its creation and oversight is from one entity the Federal government. Totalitarian because the Federal government is the enforcer of this collective right as well. State and local jurisdictions will have little say about it.

Congressman Weiner's view is the underlying philosophy of all of the Health Care Reform legislation in the House and Senate. Consider this section in the Senate version of the bill; the setting up of community watch dogs that will monitor citizens for various health parameters. Read pages 382 - 393.

TITLE I—QUALITY, AFFORDABLE HEALTH CARE FOR ALL AMERICANS pps 382 - 393

So, even citizens themselves will be subject to Federal regulations on their behavior in order to fulfill the "human right" of universal health care. It isn't the individual's liberty that is being protected by that it is the government's control over its own health care system that is being guarded. How much clearer can it be that these bills abrogate the concept of individual rights? Someone will be checking your lifestyle, according to gov regulations, to be certain you serve the best interests of the "basic human right to health care" ie. "the Public Option."

HCR is not just about rationing care and wealth redistribution. It's about the end of individual rights as the corrosive effects of the new collectivist "basic human right to health care" spreads throughout the legal and political systems like a virus.

I think that the main purpose of Health Care Reform (HCR) is as a direct assault on individual liberties.

Health Care is a Liberty Issue
Conservative Underground - 18 August 2009 - Tim Dunkin

Another Stupid Argument: Heath Care is a Right

Involuntary Medical Servitude

Obama's Authoritarian, Unconstitutional Health Care Proposal

Defining A Right In America

To Americans Who Believe Healthcare is a Right

OBAMA: HEALTH CARE DESTROYING FREE SPEECH

Mandated health insurance threatens freedom, privacy

Bad Laws and Unintended Consequences, part 1.

Obamacare Rips Doctor-Patient Relationship Apart

Second Bill of Rights aka FDR's economic bill of rights
(An early attempt to embed collective rights into American politics and society.)

[max americana]

That’s right. FrankenKagan is the replacement but she will be there for many years due to age. President Palin will have to replace Thomas eventually on her admin.

[freespirited]

I guess we can assume this judge was not appointed by a liberal president.

Dubya appointed him. From what I hear he is well-respected.

[wiggen]

Wow. i have ranted and raved they better re score the bill if they take that out. This is way better.

[Daisyjane69]

Actually, I think the absence of the severability clause means that the mandate cannot be removed without getting rid of the entire bill!

IOW, the mandate cannot be “severed” from the rest of the legislation without that clause.

Poking around for more info:

http://www.investors.com/NewsAndAnalysis/Article.aspx?id=534458

[tpmintx]

Perhaps Pelosi et al haven't quite understood yet "the People's" power at the ballot box under their Constitution.

Perhaps she does understand the power of the people, yet she has different plans based on help from the NBP and others to maintain power fraudulently.

[SkyDancer]

K, thanks ... wasn’t able to follow it that closely. So the court hasn’t shifted which is good.