Thursday, June 2, 2011

Bad News for Health Care Law Opponents

UPDATE II: More hearings on the health care law. Read The New York Times, Second Appellate Panel Hears Arguments on Health Care Law.

UPDATE: Two-headed Mitt explains the Republi-con position regarding health-care, first you support it, then you don't. Read the Washington Post, The medical mystery of Mitt Romney.

"A flurry of hearings on the constitutionality of the Obama health care law kicks off in Richmond, Va. Tuesday, with litigants eager to strike down the president’s achievement." Read The New York Times, Battle Over Health Care Law Shifts to Federal Appellate Courts.

"There are 14 judges on the Fourth Circuit Court of Appeals, but only three will sit on the panel that hears today’s arguments over the health-care law. Those three are chosen by way of 'a computer program designed to achieve total random selection.' And today [May 10], that computer program chose two Clinton nominees and an Obama nominee. Game over, says conservative policy reporter Phillip Klein. 'ObamaCare is likely to be upheld by 4th circuit.' Read the Washington Post, Health-care reform’s attack on the courts, which notes:

"Klein says in a longer post at the Washington Examiner, 'Democratic judges have upheld the law while Republican judges have declared it unconstitutional.' Which just goes to show that the legal channel here has become little more than politics by another name. Republicans know it and Democrats know it. Everybody knows it."

Which reaffirms my position from the beginning of the debate regarding the constitutionality of the health care law -- it was and remains a political question that the court should refuse to consider.

The article also recommends for further reading, the Yale Law Journal, The obvious constitutionality of health-care reform, in which:

"Andrew Koppleman analyzes Judge Vinson’s opinion in Florida v. U.S. Department of Health and Human Services (striking down the Affordable Care Act). Judge Vinson said that individual mandate was not a 'Necessary and Proper' extension of the Act’s insurance industry reforms; instead, 'the individual mandate is actually being used as the means to avoid the adverse consequences of the Act itself.' Koppelman shows why that reasoning amounts to a fallacy: 'If . . . Congress has no power to address negative consequences that follow from its own statutory scheme, then Marshall was wrong about mail robbery after all. Mail robbery is an adverse consequence of Congress’s decision to establish a post office: had it not done that, all those valuable documents would not be gathered together in one place. But, you might say, That sounds crazy; of course Congress can decide that it’s worth having a post office, even if establishing one creates negative side effects, which then must be addressed. But if—as Vinson admitted—Congress can also decide that people with preexisting conditions can be protected, then how can the cases be distinguished?"

Moreover, even if the individual mandate "is not authorized by the Commerce Clause, or by some combination of the commerce power and the Necessary and Proper Clause, it would still fall squarely within Congress’s authority to set the terms on which it will collect revenues" Read the Yale Law Journal, Conditional Taxation and the Constitutionality of Health Care Reform.

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