Not-So-Happy Birthday for ObamaCare

By Ronald S. Bachman

The Patient Protection and Affordable Care Act (PPACA) commonly referred to as ObamaCare was signed into law on March 23, 2010. One year later, the law remains unpopular with the public and a core fiscal concern for many voters, while many are learning just how intrusive are the government mandates.

Supporters believed that once passed, the law would gain in popularity. It has not. This law of the land may not be for long. In January this year, Senior U.S. District Court Judge Roger Vinson ruled the individual mandate in the new law to be unconstitutional. He further declared that the entire bill is unconstitutional because the act lacks a “severability clause,” typically part of any major legislation.

The severability clause is intended to ensure that if any portion of a bill is found in violation of other laws (or unconstitutional), only that section of the act is voided. But Congress deliberately eliminated the severability clause from an earlier version of the health reform legislation, so the new law is a unified whole. The Congressional structure and the legal arguments from the U.S. Department of Justice mean that the act stands or falls as a single entity.

The Department of Justice is appealing Vinson’s ruling to the 11th Circuit Court of Appeals; its attorneys must file their appeal by April 4. The law’s challengers have until May 4 to respond. Five of the state attorneys general are asking that the entire Appellate Court hear the case, versus the typical three-judge panel. A broader hearing could accelerate progress to the U.S. Supreme Court, which will ultimately decide the case probably during the 2012 election campaign season.

Vinson’s ruling was both simple and academic, historically referenced and legally founded in precedence. The Cliff’s Notes version of the arguments and the rulings are easy for any non-lawyer to understand. The law’s supporters argued that the government can indeed require the purchase of private health insurance under the Commerce Clause of the Constitution. They argued that previous court rulings allowed the federal government to regulate business transactions both across state lines and even those within a state that could have financial impacts across state lines. Opponents argued that the Commerce Clause does not apply and that the government cannot force individuals to purchase a private product of any type.

The judge boiled it down to a simple concept: The government can regulate commercial “activity” under the Commerce Clause, not “inactivity.” An individual’s decision not to purchase private health insurance is inactivity. One cannot be regulated or penalized for inactivity. Therefore, the individual mandate has no basis in our Constitution.

While Vinson intimated that the goal of health reform is laudable, his role was to determine the constitutionality of the act. He observed that there are many ways to accomplish health reform:

“[W]hile the individual mandate was clearly ‘necessary and essential’ to the Act as drafted, it is not ‘necessary and essential’ to health care reform in general. It is undisputed that there are various other (Constitutional) ways to accomplish what Congress wanted to do.”

In his ruling against the individual mandate, the judge quoted President Obama’s own words: “… in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that ‘if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.’”

Vinson applied the Constitution, which protects not only individuals from individuals, but individuals from government. His ruling concluded that the individual mandate was an over-reach of the government’s constitutional authority to rule the lives of Americans. He quoted James Madison’s observation: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

A year after enactment, ObamaCare’s legislative and legal survival remain uncertain. Candidate Obama declared he would not sign a health reform bill unless it included broad bipartisan support. As president, he signed the most divisive partisan major bill in this nation’s history. Too few found reason to celebrate, and now the party may be over.

Keep up with legal challenges and the rapid regulatory implementation releases from multiple sources at www.CDHCSolutionsMag-HRN.com.


 Ronald E. Bachman FSA, MAAA, is President and CEO of Healthcare Visions, Inc. and a Senior Fellow at the Georgia Public Policy Foundation, an independent think tank that proposes practical, market-oriented approaches to public policy to improve the lives of Georgians. He is also a Senior Fellow at the Center for Health Transformation, the Wye River Group on Health and the National Center for Policy Analysis. Nothing written here is to be construed as necessarily reflecting the views of the Foundation or as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature.

© Georgia Public Policy Foundation (March 25, 2011). Permission to reprint in whole or in part is hereby granted, provided the author and his affiliations are cited.