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Unconstitutionality of Obamacare

Why does an outback writer in Boonville, Mondocino county, California,  have to write on a left-wing website about how a right-wing judge did the left — and the American public — a favor?

Why do I have to explain to local liberals that Obamacare, especially its “mandatory health insurance” provision, is unsupportable — even if the wonderful Barack Obama proposed it?

I had to turn my microscope way up to find any decent liberal, progressive, left-wing or single-payer-advocate commentary about Florida Federal Judge Roger Vinson’s recent ruling tossing the entire Obamacare sham out on Constitutional grounds because, Judge Vinson said: forcing people to buy crappy insurance is unAmerican. (Ok, Vinson didn’t call it “crappy.” I did.)

Let’s begin with former health insurance PR man Wendell Potter who wrote last year that the key provision in Obamacare — that millions of Americans would be REQUIRED to buy health insurance — was the only way the Obama administration could get the bill past the insurance companies:

“Many insurance executives were wary of such a mandate because they don’t like the government mandating anything, especially those pesky state mandates that force them to include certain benefits in the policies they sell. Advocates of an individual mandate eventually brought the skeptics, including many of AHIP’s [American Health Insurance Plan’s] board members, around to their way thinking by persuading them that insurers could make billions MORE [my emphasis] in profits if every American had to buy an insurance policy from them. Now you know the real reason behind AHIP’s shift from neutrality on the issue to full-fledged support. It’s all about the money.”

After Judge Vinson’s ruling was issued last month, occasional CounterPunch contributor Marshall Auerback wrote that “If we had wanted incremental improvements to HEALTH CARE there are nearly infinite combinations of small policy changes we could have pursued — without involving insurers at all. And Dems celebrating this great victory by Wall Street were both laughable and hugely disingenuous.”

Joe Firestone of fiscalsustainability.org, who obviously read the bill — as opposed to Nancy Pelosi who famously said “We have to pass the health care bill so you can find out what is in it” — remarked:

“Folks, [Obamacare] was a bad bill. It should never have been passed. Its negative elements far outweigh its positive elements. Its claim that it will cover 32 million people is nonsense. The states are broke. They can’t serve the additional people on Medicaid envisioned by the bill. That’s 15 million of the 32 million projected covered. Of the other 17 million, many will not sign on because the very rapid price increases we’ve seen from the insurance companies will make it much more “rational” for people to accept the mandate penalties or seek waivers than to actually buy the bottom level of nearly useless insurance they’re being forced to buy.

“I know this bill is marginally improving the situation for some Americans now. It’s allowing some people, mostly middle class people to keep their kids on their insurance for a few more years. And some as yet miniscule number of people have been able to get insurance through the risk pool, where insurance is allowed to be way over-priced by the provisions of the new bill. I’ve outlined why this bill should have been defeated in December 2009. The final version of the bill was virtually the same as the version I criticized here:”
Then we looked at Judge Vinson’s actual ruling.

Most of Vinson’s lengthy judgment is a pseudo-academic lecture on the Constitution, discoursing at length on the history of the “commerce clause” and the “necessary and proper clause” intermingled with a close legalistic reading of the “Patient Protection and Affordable Care Act.”

Vinson, a right-wing Reagan appointee whom some describe as a “Tea Partier,” first concludes that the insurance mandate part of Obamacare is unconstitutional. Then, citing the fact that Obamacare has no “severability clause,” Vinson tosses the tiny baby out with the swimming pool full of bathwater.

Some conventional critics (even including Mr. Auerback) have said that the Obama administration blundered (“sloppy drafting,” said Auerback) by not including a “severability” clause in the Obamacare legislation.

Not so, says Judge Vinson. The omission was intentional.
“The defendants have asserted again and again that the individual mandate is absolutely ‘necessary’ and ‘essential’ for the Act to operate as it was intended by Congress,” said Vinson. “I accept that it is.” After some more detailed analysis, Vinson added, “In other words, the severability clause was intentionally left out of the Act.”

So Judge Vinson is agreeing with the health insurance companies that without the mandate, the health insurance business would be in trouble because they might have to provide slightly better insurance without getting millions of new customers. And we can’t have that.

Further on, Judge Vinson adds, “For the reasons stated, I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one sixth of the national economy, and without doubt Congress has the power to reform and regulate this market.”

By referring to the “health care market,” Judge Vinson is essentially ignoring single-payer style reformers and is trying to save the insurance companies from having to live with the minor reforms in Obamacare without getting billions in profits from millions of Americans who will be forced to buy (very bad) “health insurance.”

As Mr. Auerback concludes: “…a Medicare buy-in would bring the US health care system closer to the ‘ideal’ low-cost, universal (single-payer) insurance plan. Highly unlikely to occur, but if the Roberts court [i.e., the Supreme Court which most legal observers think will issue the final word on Obamacare] does force us back to square one, shouldn’t we try to get it right this time?”

Obamacare is a classic example of a bad law being worse than no law. And a judicial declaration saying that forcing people to buy bad-to-non-existent health insurance on penalty of fines is unconstitutional is good no matter what the politics of the judge are.

MARK SCARAMELLA is a regular contributor to counterpunch.org and the managing editor of the Anderson Valley Advertiser in Boonville, California (www.theava.com). He can be reached at (themaj@pacific.net)

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MARK SCARAMELLA is the Managing Editor of the Anderson Valley Advertiser in Mendocino County, California. (www.theava.com). He can be reached at themaj@pacific.net.

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