The Constitution could still remove Obamacare
By Harold Pease, Ph. D
By now there exist few defenders of the Patient Protection and Affordable Care Act, nicknamed Obamacare, which has shown itself to be neither affordable or capable of protecting the patient—especially from government managed plans. The “list of horribles” was mind boggling from day one, October 1, 2013, beginning with glitches for the first three months, then implementation extensions until December 15, then March 31, 2014, to keep afloat what clearly most Americans did not want. President Barack Obama extended exemptions to unions and to congressional staffs to limit opposition.
The oft-repeated promises that one could keep his doctor and insurance plan came to be seen as Obama lies as 5.5 million, previously satisfied Americans, received notices of insurance cancellations because the private plans they had did not fit the new mandates. An avalanche of horror stories followed. One business manager of a distinguished medical group complained of the problem of just having a phone conversation with a government healthcare representative, “If you get through at all it’s 30 to 60 minutes, and then you have to get to the right person because rules change daily and too many times you aren’t given good information.”
Many of the government plans had no maximum out-of-pocket costs on out-of-network providers resulting in surprising infinite costs. Even if you thought that all assisting your surgery were paid under your plan one or more might not be and you might get some unanticipated shocking bills. If, in some cases, costs seemed to be held down it was because providers had agreed to lower fees in exchange for a higher volume of patients, which meant less service and physician time for you.
By now most reasonable people are looking for a way out. The answer remains as always the Constitution and there exist several options. Of course, the people could wise up and throw out of office every one who voted for it. Since only Democrats did so, this would change the composition of the U.S. Senate. Those remaining could rescind Obamacare. Obama would veto it but a veto override would be easy. This is not likely as the party is not willing yet to call Obamacare a mistake, naively believing that somehow it will get better.
The states too could end the federal government’s takeover of a sixth of the economy by implementing the doctrine of nullification used in our history three times before. Actually, it was successfully used recently in the Sheriffs’ Rebellion of 2013 when 336 elected county sheriffs signed pledges that they would not enforce any unconstitutional gun control laws or executive orders. Also nine states refused to comply. The federal government backed down. Nullifying Obamacare has several sympathetic states including: Georgia, Indiana, Missouri, Oklahoma, South Carolina, Tennessee and West Virginia.
The Supreme Court also will get chances to rule the defective law unconstitutional. Yes, in a 5 to 4 majority it ruled Obamacare a tax, which, as such, is now very problematic and guarantees a return of the issue to them. The Patient Protection and Affordable Care Act did not originate in the House of Representatives as required in Article I, Section 7, Clause 1, “All Bills for raising Revenue shall originate in the House of Representatives.’’ It originated in the Senate. After the Supreme Court ruling, Senate Majority Leader Harry Reed gutted the language in a previously House bill, but with an earlier date, and deceptively replaced it with the language of the Senate bill to look like it had originated in the House, but it did not.
The Court ruling on Hobby Lobby, argued in mid March, is due any time. The question directly before the justices is whether for-profit corporations must provide insurance coverage for contraception, mandated by Obamacare. Hobby Lobby, a chain of crafts stores, challenged the requirement, saying it conflicts with the company’s religious principles. If the contraception challenge succeeds, it strikes down only a small part of Obamacare but several little challenges over time could weaken the law to oblivion. A strict interpretation of the Constitution would give an easy victory for Hobby Lobby as there exists no role for the federal government in Article I, Section 8 for contraception, insurance, or health legislation, nor in any amendment processed thereafter. Moreover, tax revenues were designed to be spent only for constitutional purposes—not for any purposes.
A potential constitutional challenge is found in the list of limitations on the Congress with respect to making law found in Article I, Section 9, “No Capitation, or other direct Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” Only the federal income tax (Amendment 16) is exempted from the proportional enumeration requirement. If the federal mandate is a tax, and not a fee, as stated by the Supreme Court, it is unconstitutional because Congress did not apportion that tax among the states according to population.
Yes, National Healthcare has shown itself to be an albatross around our necks but the Constitution can still protect us from our own ignorance if we will elect only those who will be guided by it and that would exclude many presently holding office.