Today’s opinion makes clear that President Obama enacted a massive new tax on the middle class. But we Americans have never given up in our fight for freedom, and we won’t give up now. We care more about solutions than we care about excuses. And so we must get to work, and turn back to the task at hand — full repeal of this law.
Timothy Carney notes that repealing the individual health care mandate takes only 51 votes in the U.S. Senate because you can’t filibuster a bill passed under “budget reconciliation.” Since the Supreme Court ruled today that the health care law’s individual mandate is a tax, Republicans “could simply lower the tax for not having health insurance down to $0.00, as a matter of budget reconciliation.”
“Since it’s a tax and not a mandate, there can’t be any penalty for not having health insurance above and beyond the tax. So, voila! No more mandate!”
Here’s what Heritage has lined up for today and tomorrow following the Supreme Court’s ruling. The two events will be broadcast live online (links below) and the conference call is open to all media.
Today, June 28:
A Response to the Supreme Court Ruling on Obamacare
Sen. Jim DeMint (R-SC) and Heritage’s David Addington offer the conservative response on the Supreme Court’s ruling on the President’s health care law.
12:30 p.m. ET
Heritage Foundation HQ at 214 Massachusetts Ave. NE
Conference Call with Heritage Experts
Robert Alt, director of the Rule of Law programs and senior legal fellow, and Nina Owcharenko, director of the Center for Health Policy Studies, will react to the Supreme Court’s ruling on the Affordable Care Act. They’ll discuss the legal implications of the ruling and what it will mean for the health care sector. There will be a Q&A session at the end.
1:30 p.m. ET
Contact Heritage for more info
Friday, June 29:
The Plaintiffs’ Perspective on the Obamacare Ruling
Twenty-six states and the National Federation of Independent Business took an unprecedented step in challenging the constitutionality of major provisions of the President’s health care law. The Supreme Court is expected to rule on the landmark case this week. Hear the plaintiffs’ reactions of the decision, with analysis from Texas Attorney General Greg Abbott and Karen Harned of NFIB. They will share their perspectives on the ruling, how the decision might impact the welfare of states and small businesses, and next steps they are considering. Heritage scholars will follow with a panel discussion that examines the impact the Court’s decision will have on health care, religious liberty, and limited government.
10 a.m. ET
Heritage Foundation HQ at 214 Massachusetts Ave. NE
Obamacare After the Court
The policy landscape will change dramatically after 10 a.m. today. If the Supreme Court does not strike down Obamacare in its entirety, Congress should move to repeal it. Americans support repeal of the health care law, as they have demonstrated in more than 100 polls since it passed in 2010. The infamous individual mandate is only the beginning of the problems Americans face under this law. Most importantly, Americans need real health care reform, and we need to begin moving toward a patient-friendly system where people have the freedom to choose the care that is best for them.
Beyond the Individual Mandate
Over the past two years, Heritage has laid out the flawed policies of Obamacare, including the individual mandate to purchase health insurance, which is at the center of the law’s constitutional questionability.
We must remember, as James Capretta says in a recent Heritage paper, that what might remain on the books is just as problematic as the provisions under legal scrutiny:
1. The Taxes. It is often forgotten that in addition to being a massive federal power grab, Obamacare contains one of the largest tax increases ever imposed on the American economy—at a time when job growth should be the nation’s number one priority.
2. Deficits and Debt. Obamacare creates two new additional entitlement programs that are expected to add a minimum of 35 million Americans to the entitlement rolls when phased in, at an expense of more than $200 billion annually by the end of the decade.
3. The HHS Mandate. Obamacare has handed over immense regulatory power to the Department of Health and Human Services (HHS) to control just about every aspect of the nation’s health system. Among other things, the regulations issued by the Administration thus far would require all employers, including religious employers such as Catholic hospitals and universities, to cover abortifacient products, contraceptives, and sterilization procedures in the health plans they offer to workers. This would directly violate the religious liberty rights of thousands of religious institutions around the country.
4. The Bureaucratic Micromanagement of American Health Care. In addition to creating new federal agencies, boards, and bureaucracies, Obamacare is also pouring hundreds of millions of dollars into the states to coax them into building the “exchanges” that will become the foundation of the Obamacare edifice. These exchanges, far from fulfilling the supposed mission of fostering a dynamic marketplace, will be the means by which the federal government will extend its reach to every corner of the health sector. Every American who does not obtain his or her insurance through an employer will have little choice but to go through Obamacare’s exchanges.
So What Should We Do?
A starting point for developing alternative health insurance reform should be setting commonsense insurance rules for those who buy their own insurance by extending the protections previously established by HIPAA (the Health Insurance Portability and Accountability Act of 1996). As Heritage’s Edmund Haislmaier explains:
Currently, 90 percent of privately insured Americans are covered by an employer-group plan. Over the past 15 years, the HIPAA employer-group coverage rules have worked reasonably well. Congress should simply extend those rules to the remaining 10 percent of the private market that consists of people covered by individual health insurance policies.
The HIPAA rules already extend key protections for those in the employer-group market, including a guaranteed issuing of coverage, guaranteed renewability of coverage, limits on pre-existing condition exclusions, and prohibition on discriminating based on health status. Extending these rules to the individual market would allow greater portability.
Coupling sensible individual health insurance market reforms with appropriate tax and Medicaid reforms would be a fair and fiscally sound strategy for expanding coverage to the currently uninsured. The Heritage Foundation’s Saving the American Dream provides such a plan and puts health care reform on a course toward a truly consumer-based health care system.
No matter what happens this morning, conservatives especially should not be fooled into making short-term concessions that can undermine their long-term policy goals. Instead, Congress should use the opportunity to articulate clearly the shortfalls of the law and contrast them sharply with better solutions.
The failure of Obamacare is not only a matter of the public’s continued opposition to it; the law is also a major policy failure. It is based on the false premise that more government, more regulations, and more mandates are the right solution to America’s health care problems. Congress must use this opportunity to offer an alternative vision for the future of health care—a future where individuals get better care at lower cost without government controlling the dollars and decisions.
At 12:30 ET today, Senator Jim DeMint (R-SC) and Heritage’s David Addington will offer the conservative response on the Supreme Court’s ruling. Watch their response live here.
The fight over Obamacare will not end when the cameras and press leave Washington. Join with Heritage as we continue to fight for foundational, conservative principles for America’s future.
Our Latest Resources:
“Obamacare’s Failings Go Well Beyond the Individual Mandate and Medicaid,” by James C. Capretta
“Health Reform and the Impact of Extending Dependent Coverage to Age 26,” by Drew Gonshorowski
“Why Congress Should Not Preserve Flawed Obamacare Policies,” by Nina Owcharenko
“Saving the American Dream: The U.S. Needs Commonsense Health Insurance Reforms,” by Edmund Haislmaier
While the political and chattering classes await the ruling on ObamaCare by the Supreme Court, the nation’s employers are watching, too.
In an article on CFO.com, Russ Banham points out that the core of the legislation is the individual mandate, which would bring 30 million currently uninsured people into the system as premium payers. These individuals are disproportionately young and healthy, so the influx would generate massive net new revenues for the insurance system. This windfall would fund the extra expenses driven by other parts of the legislation.
Throw out the individual mandate, and the network of insurers has to make up the difference. And you just know where that money is coming from.
Read more at CFO.com
Heritage Senior Legal Fellow Hans von Spakovsky spoke with us after the first of two hearings let out this morning. This morning’s arguments focused on the severability of the individual mandate and determine what happens if a majority rule the individual mandate to be unconstitutional.
Supreme Court Justice Anthony Kennedy said the U.S. government has a “very heavy burden of justification” to show where the Constitution authorizes the Congress to change the relation of individuals to the government. His comments came as the high court tackled the central issue in the challenge to the Obama administration’s health-care law — whether Congress could require individuals to carry health insurance or pay a penalty.
Solicitor General Donald Verrilli, in defending the law, argued that Congress was regulating the health-care market in which people were already participating, rather than breaking new ground by forcing them to buy a product. Justice Kennedy asked what limits, if any, there would be to government powers under his argument. Justices Ruth Bader Ginsburg and Stephen Breyer weighed in repeatedly to further Verrilli’s argument, and to counter skeptical remarks made by Justices Antonin Scalia and Samuel Alito.
Karen Harned, Executive Director of the NFIB (National Federation of Independent Business) Small Business Legal Center: “It was a great day at the Supreme Court today. Small business was well-served by great advocates. There were strong questions from all of the justices. We feel that it came through that this is unprecedented. This is the first time in our country’s history that Congress is requiring us to buy a product. It is going to be an unlimited power if the individual mandate is upheld. Congress will be able to force us to buy virtually any product going forward. There were many hypothetical’s given throughout the 2 hours of argument that demonstrated just how vast this government power could become.”
Statement from Professor Randy Barnett, Legal Counsel for NFIB and professor of law at Georgetown University: “I feel very good about how the argument went. The justices appeared closely divided, with half mainly critical of the government and half critically questioning the challengers. All we can do now is wait to see which side can command at least five votes.”
Carrie Severino, chief counsel to the Judicial Crisis Network: “Don’t cancel your old health plan just yet, Obamacare is in trouble. Today’s arguments provided a sobering reality-check for everyone who said this case was open-and-shut. In fact, at least five of the justices are very concerned that if the mandate is upheld – as Chief Justice Roberts said – ‘all bets are off’ and government power would be practically unlimited. Justice Kennedy recognized that the law ‘changes the relationship of the individual to the government in a unique way,’ suggesting a vote against the mandate from this champion of individual liberty.”
David B. Rivkin, Jr., and Lee A. Casey, partners at Baker Hostetler LLP, who have represented the 26 States challenging the Obamacare in the District Court for the Northern District of Florida and the 11th Circuit: “As Justice Anthony Kennedy correctly pointed out during the argument, this unprecedented requirement fundamentally changes the relationship of individuals to the federal government, raising grave concerns for the individual liberty guaranteed by the Constitution’s federal structure. Moreover, in response to questioning from more than one Justice, the Obama Administration was unable to identify any judicially enforceable limiting principle that would, if its arguments in favor of the Individual Mandate were accepted, maintain the Constitution’s balance between federal and state power. If the federal government can require all Americans to obtain health insurance simply because they are here and have some impact on the national economy, then there is no area in which Congress cannot regulate leaving the States as little more than federal administrative units. This is not what the Constitution requires and it is evident from today’s argument that the Justices understand that this is what is at stake in this case.”
Amicus Brief: ‘If Congress May Punish A Decision To Refrain From Engaging In A Private Activity… Then The Congress Can Require The Purchase Of Virtually Anything’
43 Sens: ‘Congress Acted Without Constitutional Authority In Enacting The Individual Mandate’
“Put simply, Congress acted without constitutional authority in enacting the Individual Mandate of the PPACA. … Because the Individual Mandate regulates a simple decision or choice not to purchase a particular product, it exceeds the proper scope of the Commerce Clause.” (Brief Of 43 U.S. Senators As Amicus Curiae, HHS v. Florida, Et Al., 2/13/12)
· “The step from regulating market participation to mandating participation in a market is novel and unprecedented. … The fact that Congress in 200 years has not attempted to regulate inactivity to force market participation also strongly suggests it never has had such authority.” (Brief Of 43 U.S. Senators As Amicus Curiae, HHS v. Florida, Et Al., 2/13/12)
· “If Congress may punish a decision to refrain from engaging in a private activity (namely, the purchase of health insurance) because the consequences of not engaging in it, in the aggregate, could substantially affect interstate commerce, then the Congress can require the purchase of virtually anything.” (Brief Of 43 U.S. Senators As Amicus Curiae, HHS v. Florida, Et Al., 2/13/12)
‘An Unprecedented’ & ‘Novel Exercise Of Commerce Clause Power’
11TH CIRCUIT COURT: “Economic mandates such as the one contained in the Act are so unprecedented, however, that the government has been unable, either in its briefs or at oral argument, to point this Court to Supreme Court precedent that addresses their constitutionality. Nor does our independent review reveal such a precedent.” (Florida v. United States HHS, 648 F.3d 1235, 1288 (11th Cir. 2011))
D.C. CIRCUIT COURT: “The Government concedes the novelty of the mandate and the lack of any doctrinal limiting principles; indeed, at oral argument, the Government could not identify any mandate to purchase a product or service in interstate commerce that would be unconstitutional, at least under the Commerce Clause.” (Seven-Sky v. Holder, 661 F.3d 1, 14-15 (D.C. Cir. 2011)
6TH CIRCUIT COURT: “The mandate is a novel exercise of Commerce Clause power. No prior exercise of that power has required individuals to purchase a good or service.” (Thomas More Law Center v. Obama, 651 F.3d 529, 567 (6th Cir. 2011))
· “…Congress crossed a constitutional line in imposing this unprecedented requirement.” (Thomas More Law Center v. Obama, 651 F.3d 529, 567 (6th Cir. 2011))
EASTERN DISTRICT OF VIRGINIA COURT: “…the Minimum Essential Coverage Provision appears to forge new ground and extends the Commerce Clause powers beyond its current high water mark.” (Virginia v. Sebelius, 728 F. Supp. 2d 768, 775 (E.D. Va. 2010))
NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION COURT: “Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States.” (“Plaintiffs, v. United States HHS, (N.D. Fla. 2011))
CRS: “However, a requirement could be imposed on some individuals who do not engage in any economic activity relating to the health insurance market. This is a novel issue: whether Congress can use its Commerce Clause authority to require a person to buy a good or a service and whether this type of required participation can be considered economic activity.” (”Requiring Individuals To Obtain Health Insurance: A Constitutional Analysis,” CRS Report, P. 11-12, 5/7/10)
· “… it may seem like too much of a bootstrap to force individuals into the health insurance market and then use their participation in that market to say they are engaging in commerce…” (”Requiring Individuals To Obtain Health Insurance: A Constitutional Analysis,” CRS Report, P. 12, 5/7/10)
CBO: “A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.” (“The Budgetary Treatment Of An Individual Mandate To Buy Health Insurance,” CBO Report, P.1, 8/94)
Karen Harned, executive director of the NFIB (National Federation of Independent Business) Small Business Legal Center:
“It was a great day for small businesses. Bottom line is that there was healthy skepticism on the part of most, if not all, of the justices on whether or not the Anti Injunction Act warrants challenge at this time. We feel good about our chances of the court going to the merits of whether or not the individual mandate is constitutional. We’re looking forward to arguments tomorrow.”
Randy Barnett, Legal Counsel for NFIB, professor of law at Georgetown University:
“Most of the justices seem skeptical of the claim that the mandate and penalty are a tax. They seem ready, willing, and able to reach the merit of the commerce clause claim.”
72% Believe Obamacare Will Make Things Worse Or Won’t Help
72% Say It’s Unconstitutional
GALLUP: “Americans overwhelmingly believe the ‘individual mandate,’ as it is often called, is unconstitutional, by a margin of 72% to 20%.” (USA Today / Gallup Poll, 2/20-21/12)
“Even a majority of Democrats… believe that provision is unconstitutional.” (USA Today / Gallup Poll, 2/20-21/12)
· “As you may know, the Supreme Court will hear arguments next month concerning a requirement in the healthcare law that every American must buy health insurance or pay a fine. Regardless of whether you favor or oppose the law, do you think this requirement is constitutional or unconstitutional? All Americans: Constitutional: 20%; Unconstitutional: 72%; Unsure: 7%.” (USA Today / Gallup Poll, 2/20-21/12)
· “…do you think this requirement is constitutional or unconstitutional? Independents: 70% unconstitutional.” (USA Today / Gallup Poll, 2/20-21/12)
· “…do you think this requirement is constitutional or unconstitutional? Democrats: 56% unconstitutional.” (USA Today / Gallup Poll, 2/20-21/12)
72% Think Obamacare Will Make Things Worse Or Won’t Help
“Americans are less optimistic that the law will improve their family’s healthcare situation in the long run, however. Thirty-eight percent expect the law to make their situation worse, compared with 24% who say better.” (USA Today / Gallup Poll, 2/20-21/12)
· “Now suppose all of the provisions of the healthcare law go into effect in the next few years. In the long run, how do you think the healthcare law would affect your family’s healthcare situation? All Americans: Make better: 24%; Not much difference: 34%; Make worse: 38%.” (USA Today / Gallup Poll, 2/20-21/12)
“If you’re going to take away liberty and property, there has to be some sort of due process involved,” says Chris Littleton, the head of Ohioans for Healthcare Freedom and a Tea Party leader in the Buckeye state. “In this case, as citizens, we feel that those things are fundamentally inhibited and we want the Supreme Court to hear our case on this.”
Littleton’s group is pushing an upcoming ballot initiative that would amend the state constitution to prevent citizens’ involuntary participation in any health-insurance system. The U.S. Supreme Court is widely expected to issue a ruling on the constitutionality of what’s known as the “individual mandate” in Obamacare and Littelton thinks passage of the Ohio Healthcare Freedom Amendment will give his state unique legal standing: “This is citizen-initiated, which is very unique. If it passes, Ohio will be the only state that’s done something like that.” While most challenges to the individual mandate revolve around the limits of Congress’ commerce clause powers, Littleton believes the amendment will activate due process and 10th Amendment considerations.
Littleton sat down with Reason.tv’s Nick Gillespie to discuss the Healthcare Freedom Amendment and the similarities between the Occupy Movement and the Tea Party. “I sympathize with the Occupy people…They’re sensing that the system is broken,” explains Littleton. “But it seems their answer to things is the confiscation of wealth…where [the Tea Party] advocates for legitimate and true free market systems rather than what we have right now.”