Obamacare’s Paper Tiger


Thanks to a well-reasoned argument by Virginia Attorney General Ken Cuccinelli and a thoughtful decision by Judge Henry Hudson, Obamacare may soon be joining “Carter for President 1980” and “Keith Olbermann on Sunday Night Football” on the ash-heap of monumentally bad ideas.

In Hudson’s landmark ruling of earlier this week, he called the fundamental tenet of the misleadingly-monikered Patient Protection and Affordable Care Act (PPACA) — specifically, the fine for non-compliance — exactly what it is: A grotesque grab for power by the same Democrats who have been lying about Obamacare’s effects all along.

Thankfully, there are Federal judges who have not only read the Constitution, but understand it. You may count Judge Henry Hudson among them. In striking down Section 1501 of the Patient Protection and Affordable Care Act (the part that requires you to buy comprehensive coverage or face a fine), Hudson wrote:

“The unchecked expansion of congressional power to the limits suggested by the Minimum Essential Coverage Provision would invite unbridled exercise of federal police powers.”

Put simply: the Federal government does has not have the prerogative to force people to buy health insurance; and “policy raids by The Doctor Police” is just plain Big Brother-creepy. Democrats hoping to utilize the Constitution’s Commerce Clause (Article I, Section 8, Clause 3) to force citizens to buy into a government-run system felt the back of Hudson’s hand; he noted that section 1501 of the PPACA “exceeds the Commerce Clause powers vested in Congress under Article 1.”

And how! In addition to levying a financial penalty on citizens who choose to eschew the government’s healthcare boondoggle, Obamacare actually penalizes younger, healthier citizens who DO participate, by forcing insurance companies to cease the practice of offering lower rates to the fittest among us based on academic projections.

Fortunately, Hudson saw through the veneer of Democrat duplicity. It should be noted that the Democrats were perfectly willing to acknowledge that Section 1501 mandated a non-participation penalty right up until the Obama Administration found itself defending the bill in Federal Court, at which point the “penalty” became a “tax.” Not so fast, said Hudson:

“Having concluded that Section 1501(b)(1) is… a penalty as opposed to a tax (author’s emphasis)… Congress lacked power under the Commerce Clause… to compel an individual to involuntarily engage in a private commercial transaction… The absence of a constitutionally viable exercise of this enumerated power is fatal to the accompanying sanction for non-compliance.”

Notice Hudson said “sanction” and not “tax.” Through the Minimum Essential Coverage (MEC) provision, the Democrats were planning to institute the first tax in U.S. history paid by people for NOT buying something.

While Hudson’s decision DID sever Section 1501 from the PPACA as opposed to simply gunning down the whole bureaucratic monstrosity which is Obamacare, the bill can be regarded as surviving on legislative life support. More Federal cases are in the pipeline, notably in Florida, where 16 states’ Attorneys General are leading the charge to stuff Obamacare back in the Democrats’ pieholes.

Judge Roger Vinson has already ruled that the case can go forward. Vinson’s ruling is déjà vu for the Democrats; Hudson issued a similar ruling in Virginia back in August. There are also religious exemptions which are begging for a 1st Amendment challenge, the obvious 10th Amendment issues, and a privacy case regarding the PPACA’s data-mining intrusions and more — it’s a cornucopia of constitutional contentions — and just in time for Christmas!

Most importantly, without Section 1501’s penalty for failure to buy insurance at Big Barry’s, the PPACA is a legislative paper tiger. The bulk of the Obamacare power grab rested on the threat of enforcement. The Democrats wanted control of the nation’s healthcare apparatus and violated the Constitution to facilitate their greed. Now, the PPACA is little more than a 2,700-page suggestion that people purchase insurance in the manner proscribed.

The uninsured will continue to make their choices. Indigent care, Medicare and the host of other taxpayer-subsidized healthcare services will still require funding. Only now, with the PPACA and attendant layers of bureaucracy, make-work jobs and functionary excess which ALWAYS ride shotgun on overarching Federal legislation, more money will still be required. When the loss of the MEC enforcement provision is factored in — the taxpayers are going to have foot the bill anyway.

The proper response here is not: “Why not just pass it?” The proper response IS: “How about we dump the whole bill like we dumped the Democrat House majority?”

Personal Liberty

Ben Crystal

is a 1993 graduate of Davidson College and has burned the better part of the last two decades getting over the damage done by modern-day higher education. He now lives in Savannah, Ga., where he has hosted an award-winning radio talk show and been featured as a political analyst for television. Currently a principal at Saltymoss Productions—a media company specializing in concept television and campaign production, speechwriting and media strategy—Ben has written numerous articles on the subjects of municipal authoritarianism, the economic fallacy of sin taxes and analyses of congressional abuses of power.

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