Health Care, Barack Obama, and the U.S. Constitution

Health Care, Barack Obama, and the U.S. Constitution
Austin Hill
Sunday, December 27, 2009

Who cares about the U.S. Constitution, when Barack Obama’s vision for America is weighing in the balance?

Don’t count on the U.S. Congress to care.

In the aftermath of the Senate’s passage of an Obamacare bill, Attorney’s General from multiple states have begun to announce that they are launching investigations into the legality, and constitutionality of the Senate legislation. Chief among their concerns is the possibility that that the bill places Americans outside the state of Nebraska at a significant disadvantage, financially and otherwise, to residents of the state of Nebraska.

South Carolina Attorney General Henry McMaster, along with the Attorneys General in the states of Washington, Michigan, Texas, Colorado, Alabama and North Dakota – have joined forces to consider, among other things, if the Obamacare bill in the U.S. Senate violates the 10th Amendment of the U.S. Constitution. The 10th Amendment stipulates that powers not granted to the national government nor prohibited to the states by the constitution of the United States , are reserved to the states or the people.

As such, the 10th Amendment may pose constitutional challenges to the Obamacare bill itself. Does the constitution grant to the federal government the “power” to provide healthcare? More curiously, does the constitution grant to the federal government the “power” to mandate that people buy anything - including health insurance (the Senate version of the healthcare reform legislation stipulates both)?

Additionally, state Attorneys General should also be concerned about Obamacare for another reason: it could be in violation of the “equal protection” clause of the Fourteenth Amendment.

Concerns over the Fourteenth Amendment appear to be present (this is based on what we know of the legislation, which, because of Pelosi and Reid’s secretiveness, is not a lot) in the portion of the Obamacare bill that grants special (and expensive) privileges to residents of the state of Nebraska. In the Senate’s Obamacare bill, the state of Nebraska is afforded special financial advantages from the federal government - to the tune of hundreds of millions of dollars every year – for the funding of Medicaid. The reason this provision appears in a Senate healthcare bill, as many readers of this column are aware, is because the bill could not be passed without the vote of Democratic Senator Ben Nelson of Nebraska .

Obamacare is strongly opposed by roughly two-thirds of American voters. And according to a survey published less than two weeks ago by the Tarrance Group polling firm, sixty-seven percent of Nebraskans oppose Obamacare, while ninety percent of Nebraskans are happy with the heatlhcare they currently receive and don’t want it to change.

Additionally, the Senate Obamacare bill is vague, at best, as to when and where it funds abortion procedures – and Nebraskans overwhelmingly find the aborting of unborn children to be abhorrent. And for all these reasons, Senator Ben Nelson had every reason to vote against the Obamacare bill.

So, given Senator Nelson’s incentives to oppose the Obamacare bill, Senate Majority Leader Harry Reid crafted a special deal to incentivize Nelson to vote in favor of the bill. The “incentives” included special economic incentives for the state of Nebraska , incentivizes that people in the other 49 states don’t receive.

Using the law to single-out certain individuals, or certain groups of individuals, and impart to them either special privileges or penalties that don’t apply to other Americans, is, well – Un-American. And it may very well prove to be un-constitutional in court.

Residents in the other forty-nine states pay taxes according to the same federal taxation structure as do Americans in Nebraska. Furthermore, in as much as we are U.S. citizens, we are all deserving of the same “protections” under the law to which Nebraskans are subject.

But the Senate Obamacare bill sets aside Nebraskans, and makes a special privileged class of them. If this bill becomes law, Nebraskans will be entitled to subsidies from the federal government that those of us who belong in the category called “non-Nebraskans” are not.

This disregard for the U.S. Constitution and matters of “equal protection” do not begin and end with Senator Ben Nelson. Earlier this winter, Senator Mary Landrieu (D-Louisiana) was asked a simple question by reporter Nicholas Ballasy of CNSNews.Com: “What part of the Constitution do you think gives Congress the authority to mandate that individuals have to purchase health insurance?”

In response, Senator Landrieu (who, much like Senator Nelson of Nebraska did, essentially “sold” her vote in the Senate despite opposition to Obamacare in her home state of Louisiana) replied “we’re very lucky as members of the Senate to have constitutional lawyers on our staff, so I’ll let them answer that.”

Yes, of course – “the lawyers clean up all details” as American poet (and “classic rock” star) Don Henley once lamented about his country. The fact is, however, that Senator Landrieu couldn’t answer the question if she tried.

But just like the legal profession itself, our current President and Congress have little regard for the U.S. Constitution, and for the rights of the human individual. Just as it is with the practice of law, the process of “law making” revolves around “leverage” – what can one individual or group force another individual or group to do? What does it take to accomplish what we, the politicians, want to accomplish?

Will any more among the 535 elite Americans in Congress dare to raise any constitutional concerns about this? And how about the Attorneys General of the other 43 states? Does the Constitution matter any more?
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Ten New Reasons Why Obamacare Can Still Be Killed
Phyllis Schlafly
Tuesday, December 29, 2009

New reasons emerge almost daily as to why Obamacare can and must be defeated.

1. The American people oppose Obamacare by almost two to one in the latest CNN poll. Other polls show lopsided opposition to passing either the Senate or House health care bill.

Public opinion is against the bill because of its obscene costs in higher taxes, burdensome debt, anti-freedom mandates, rationing and reduced care for seniors. The American people have awakened to the fact that Obamacare is transformational legislation that will drag us against popular will into European-style socialism.

2. The Democrats' double-counting of Obamacare's financial benefits has been exposed as a colossal lie. Harry Reid told the Senate that his bill strengthens our future by both "cutting our towering national deficit by as much as $1.3 trillion over the next 20 years" AND "strengthening Medicare and extending its life by nearly a decade."

The Congressional Budget Office (CBO) refuted that assertion. CBO said the claim that Obamacare would provide these benefits simultaneously "would essentially double-count a large share of those savings and thus overstate the improvement in the government's fiscal position."

3. Obamacare is unconstitutional because of its mandate that all individuals must carry "approved" health insurance and all businesses must give health insurance to their employees whether or not the company can afford it. "Universal" coverage will be enforced by the Internal Revenue Service with power to punish those who don't have such a plan.

Constitutional lawyers point out that the Commerce Clause does not give Congress the authority to force Americans to buy health insurance as a condition of living in our country because personal health insurance is not "commerce." The CBO wrote that "a mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action"; the Supreme Court has never upheld any requirement that an individual must participate in economic activity.

4. Since the Senate bill imposes sharp limits on health-insurance companies' ability to raise fees or exclude coverage, it likely will force many of them out of business. Obamacare is unconstitutional because it violates the Bill of Rights protections against takings without just compensation and deprivation of property without due process of law.

5. Other Obamacare provisions blatantly legislate racial and other forms of discrimination. The U.S. Commission on Civil Rights sent two letters to the president and congressional leaders warning about the obnoxious requirements for racist and sexist quotas.

The Senate bill requires that "priority" for federal grants be given to institutions offering "preferential" admissions to minorities (race, national origin, sex, sexual orientation and religion). Institutions training social workers, psychologists, psychiatrists, behavioral pediatricians, psychiatric nurses and counselors will be ineligible for federal grants unless they enroll "individuals and groups from different racial, ethnic, cultural, geographic, religious, linguistic and class backgrounds, and different genders and sexual orientations."

6. Obama's claim that "everybody" will now be covered creates few winners but lots of losers. Universal health insurance will be achieved by forcing young people to pay the additional costs (insurance for the youngest third of the population would rise by 35 percent), and by restricting and rationing care for the elderly.

7. According to Robert Samuelson in The Washington Post, the "wild card is immigration." From 1999 to 2008, 60 percent of the increase in the uninsured occurred among Hispanics, and Obama's refusal to close our borders will make this problem more costly every year.

8. Obamacare gives Medicare bureaucrats the power to ration health care by forcing doctors to prescribe cheaper medical devices and drugs. In the recent case of Hays v. Sebelius, the court ruled that Medicare doesn't have the right to make this rule, but Obamacare takes jurisdiction away from the courts to hear any appeal from decisions of the new Medicare Commission.

The "stick" applied to primary-care doctors is imposing financial penalties if they refer too many patients to specialists. The "carrot" is financial rewards to doctors who give up small practices and consolidate into larger medical groups or become salaried employees of hospitals or other large institutions.

9. The Senate bill contains at least a dozen of what can be described as bribes. Sen. Mary Landrieu received a $300 million increase in Medicaid funding for her state (known as the Second Louisiana Purchase), and a $100 million bribe to Sen. Ben Nelson gives Nebraska a permanent exemption from the costs of Medicaid expansion.

10. The Senate bill even has a four-page section artfully written to enable ACORN to get federal health care grants. This section describes grant recipients as "community and consumer-focused nonprofit groups" having "existing relationships ... with uninsured and underinsured consumers."