Health Insurance Info for Colorado

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The Roberts Court and Obamacare

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Well, I can’t pick horses, either.

With the stunning decision by the Supreme Court of the United States this morning, Chief Justice John Roberts reminded me of the history surrounding another Chief Justice, Earl Warren, appointed by President Dwight D. Eisenhower. Eisenhower, when asked, made the point that many may make about Roberts in the not-too-distant future – that it was, after all, a bad decision to elevate this juror to the Supreme Court, given his now-apparent political unreliability and left-leaning nature. Roberts has now proven, in at least two decisions this year, to be at least as politically unreliable as Justice Warren, and has firmly relabeled the Supreme Court as “the Roberts Court” rather than “the Kennedy Court”, since Justice Kennedy sided with the minority, all conservative, in the dissent to the bizarre and unsupported decision concerning the Affordable Care Act. Chief Justice Roberts, flatly, sided with the liberals on the Court in upholding the constitutionality of The Affordable Care Act.

It’s not as if the Court hasn’t previously made law out of whole cloth: but what’s interesting about this decision is that Mr. Roberts has essentially told the Obama Administration, and the country, that, while the individual mandate exceeds the Commerce Clause authority, the mandate can and will be considered a tax, something that the Administration itself argued wasn’t the case, until it had to be argued, and then promptly reversed itself, again, during oral arguments before the Justices. Chief Justice Roberts in essence said, yes, I think this is a tax, notwithstanding the Solicitor Generals’ previous denial, and as such you can proceed. He did what all Constitutionalists fear: he warped reality and invented law, conveniently, to advance an ideological position, from the bench.

The Affordable Care Act now becomes the biggest issue of this Presidential election, or perhaps any election since 1936. While Republicans have always espoused “repeal and replace” as the ultimate solution, in light of the devastation wrought by this decision, Republicans will be galvanized (or should be!) like never before to do just that, as, given the breathtaking depth and breadth of the societal changes wrought by Obamacare, they face the prospect of permanent isolation in the wilderness of politics, or, alternatively, complete disintegration as a political organization, if Mr. Obama is handed another four years to build a permanent majority of government-dependent voters who will fully embrace a government-dominated socialist society that promises them everything at the expense of the producers who, flatly, create the bounty we now enjoy. With this election, and this enormous landmark legislation now seemingly upheld, voters will be handed a stark contrast, one that favors liberty and individual freedom and one that favors “equality” and government intrusion. It is not inconceivable that, if Mr. Obama is re-elected, a permanent Democratic majority will come into power for decades, based only on the power of a newly created “dependency class” to continue voting to receive government largesse. And the bottom line is that, if you want to see the outcome of such a majority, take a good look at Europe today.

“That sound you hear is the marching of libertarians into Camp Romney, with noses held, knowing that the libertarian and conservative coalitions must unite to defeat Obama and Obamacare.” – Eric Erickson,

The Supreme Court decides

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Media reports suggest that today (or, at, least, this week) the Supreme Court will hand down its decision on The Affordable Care Act. To briefly recap, dozens of states sued the federal government to overturn the act; the reasons for that suit are varied, such as the individual mandate, but include such issues as Medicaid funding requirements, which is a huge unfunded liability for states.

I’ve resisted the urge to handicap the forthcoming possibilities, but I do have an opinion. Right or wrong, I’m going to publish it today; one way or the other, the debates between Mr. Obama and Mr. Romney about health care in the upcoming general election will be fascinating to discuss in light of what the SCOTUS decides.

There are four possible outcomes: to do nothing and leave the entire Act standing; to narrowly strike down just the mandate provisions; to strike down the mandate and two other major provisions (which is the position that the Obama Administration said should happen if the Supremes conclude that the individual mandate is unconstitutional), and the fourth: declaring the entire Affordable Care Act unconstitutional.

I have no idea what the “Vegas line” is on this decision, so, I will take my shot-in-the-dark and lay odds:

Do nothing: 12 to 1. Not likely.

Strike down just the individual mandate: 6 to 1. Too narrow, and creates a bigger problem.

Strike down the mandate and the provisions relating to it (the position argued by the Administration if the mandate is unconstitutional): 4 to 1. The Administration wins, and the remaining Act becomes a rallying cry for progressives who always wanted the single-payor option (and this decision almost guarantees it).

Strike down the entire Act: 3 to 1. The most sensible solution of all.

My reasons for giving the best odds for striking the entire Act lay in the unprecedented suit brought by a coalition (frankly, a majority) of states against the federal government. I’m unaware of any action brought against the government by so many states, and this alone should prompt an unprecedented examination of the role of the federal governments’ power to pass legislation that intrudes on the right of the states to govern themselves. It also bears pointing out that the federal government is, technically,  a government of limited powers (the term “states rights” is not a pejorative for discrimination, despite what liberals have always said) with the remaining powers reserved exclusively to the states. With the individual mandate exceeding any rational understanding of the purpose and use, even in liberal hands, of the Commerce Clause, the demand by the states to be relieved of a burden they clearly feel is unconstitutional has to be carefully considered. The strange manner in which the Act was passed, the lack of ANY bipartisanship (or, of that matter, any input from anyone except the Progressive Caucus in the bills ultimate form) the distorted cost projections, not to mention the majority view of the Act across the nation by voters – all of these things must be taken into account by the Justices. Never mind that they are legal scholars who pass judgment on constitutional issues at the highest level; there is and always will be a political element to every controversial Supreme Court decision. Couple this with the lack of a severability clause, and my opinion is that the Supremes err, not on the side of caution, but on the side of good sense: telling Congress that this legislation is so flawed and so intrusive that it would be best to just start over.

And that is what I think the Supremes will do. If they don’t, they will be performing a major disservice to the country, by leaving in place a huge entitlement program that completely remakes the social contract between the government and its citizens (or should they now be called subjects?) without any rational means to pay for it (assuming that the Commerce Clause doesn’t allow the government to tell you what you must buy), while dooming a portion of the insurance industry to almost-certain extinction or, worse, outright nationalization or regulation as a monopolistic utility, with the government calling ALL the shots, while re-distributing massive tax increases to pay for it.

Whatever they decide – it’s going to be interesting. And don’t forget that, in the absence of any new federal legislation, states, including Colorado, will be in a position to craft their own solutions, which is how it should be in the first place. The fact is that Colorado state Republicans control the House by a slim one vote margin – and history shows that in the early 90’s, Colorado’s Governor Roy Romer (D) threatened to pass a single payor system unless “health reform” was enacted, which set us upon the very path we now walk.

Let the games begin! Quoting Rep. Michele Bachmann: ““The decision on Obamacare goes well beyond health care,” she wrote. It “will determine whether or not the court believes the government has a right to mandate that Americans buy a product or service, a direct impact on our freedom and liberty.”




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