The GOP’s Anti-Health Reform Crusade Now Brought To You By Industry Lobbyists

From ThinkProgress:

"In an effort to deny more than 30 million uninsured Americans health care coverage, 26 states have filed legal action against the Affordable Care Act which passed last year. But Republican demagoguery costs money and “the [lawsuit's] cost the states have split so far amounts to $46,000.” But Florida Republican Attorney General Pam Bondi has “paid less than $6,000″ for its lawsuit. Why? Because an anti-health care lobbying group is picking up the 26-state tab"

While dubbing itself “the Voice of Small Business,” NFIB has spent the past two years “yoking itself to the GOP” while simultaneously “jeopardizing billions of dollars in credit, tax benefits and other federal subsidies” at the expense of small businesses. Affiliated with both the U.S. Chamber of Commerce and the GOP “since the Reagan era,” NFIB “is run mostly by and for Republicans” and spent 93 percent of its campaign contributions on GOP candidates. It is no wonder, then, that NFIB is happy to pay to secure the top GOP priority and equally “delighted” to see the pay off.

Judge tosses suit against Obama health care plan

The Associated Press:

"A federal judge on Tuesday threw out a lawsuit claiming that President Barack Obama's requirement that all Americans have health insurance violates the religious freedom of those who rely on God to protect them.

U.S. District Judge Gladys Kessler in Washington dismissed a lawsuit filed by the American Center for Law and Justice, a Christian legal group founded by evangelist Pat Robertson, on behalf of five Americans who can afford health insurance but have chosen for years not to buy it."

Kathleen Sebelius: How the Affordable Care Act empowers states

The Affordable Care Act puts states in the driver's seat because they often understand their health needs better than anyone else - and that is why it is so frustrating to hear opponents of reform falsely attack the law as "nationalized health care."

The truth is that states aren't just participating in implementation of the law; they're leading it.

Read the rest...

After Voting To Repeal Health Care, GOP Members Without Coverage Fear Cost To Family Members

House Republicans have pledged to repeal and/or defund the health care law. Rep. Michele Bachmann (R-MN) even adopted the effort as her sole “motivation in life.” But, for at least 16 GOP lawmakers, the reality of the party’s position is coming home to roost. These Republicans, “many of whom were swept into office fueled by tea party anger over the health care law,” are now facing the same expensive, unforgiving health insurance market as middle-class Americans the GOP wantonly abandoned

GOP lawmakers have struggled to explain why they deserve government-subsidized health care while ordinary Americans don’t. Rep. Aaron Schock (R-IL) said he accepted federal health care because he was “actually lowering” premiums for older lawmakers. When asked whether he’d turn down taxpayer benefits, Rep. Bill Posey (R-FL) actually said, “I don’t know. Am I a federal employee?” And Rep. Michael Grimm (R-NY) offered a more blunt — and revealing — response: “What am I not supposed to have health care?…God forbid I get into an accident and can’t afford the operation. That can happen to anyone.”

Read it all at Think Progress...

House seen blocking healthcare funds

Reuters:

The U.S. House of Representatives is likely to vote to block funding for President Barack Obama's signature healthcare overhaul when it takes up a budget plan next week, House Republican Leader Eric Cantor said on Tuesday.

Effort To Repeal Health Care Law Fails In Senate

An effort spearheaded by Republicans to repeal the new health care law collapsed Wednesday evening after the Senate refused to ignore its adverse impact on the deficit.

By a vote of 47-51, the Senate sustained an objection to the legislation on the grounds that it does not comply with congressional budget rules. Because a full repeal of the law is projected to increase the deficit, waiving that point of order would have required 60 votes.

But even if Democrats had allowed a straight up or down vote on the amendment, it likely would have failed. No Democrats voted with the GOP to remove the objection, giving them fewer than the 51 they'd need to successfully repeal it. Republicans -- and, really, everyone else -- have been expecting this outcome for months. And while this blunts their head-on efforts at repeal, they've always expected that their best chances to destroy or chip away at the law will come either via the courts, spending bills or amendments to the law meant to weaken it.

One such effort, driven by Sens. Lindsey Graham (R-SC) and John Barrasso (R-WY) would allow states to opt out of the law's key provisions, which, they say, would cause the overall policy to collapse.

Top Democrats have suggested that if Republicans keep forcing votes on full repeal, they'll put the legislation on the floor, and during the debate, force votes on amendments to exempt popular aspects of the law.

More....

Republicans Hide Health Care Law Benefits From Their Constituents

Two days after a Republican Florida federal court judge voided the entire health care law, the multi-front Republican war against it continues in the Senate, where members will vote today on whether or not to just repeal it, full stop.

Simultaneously, Republican members are trying to sneak grenades into the heart of the law, crafting modifications which they admit are meant to destroy it.

But that presents them with a conundrum when they head back to their states and districts and face constituents who stand to benefit from the law right now -- seniors who are entitled to free checkups, and young adults, who can now stay on their parents' insurance until they turn 26, for example. Republicans can chose to help those constituents navigate the law -- answer their questions constructively, encourage them to seek those benefits -- or they can let their political agendas interfere.

More....

The Affordable Care Act and the Courts: What the Experts Are Saying

From the White House:

On Monday, Judge Roger Vinson issued a ruling in a case challenging the constitutionality of the Affordable Care Act. The ruling comes after legal action in cases regarding the law in courts across the country. Twelve federal judges have already dismissed challenges to the constitutionality of the health reform law.  Two federal judges – in the Eastern District of Michigan and Western District of Virginia – have fully upheld the law, and one federal judge in the Eastern District of Virginia ruled against the individual responsibility provision but declined to bar full, continuing implementation.   

The decision issued on Monday is one district court decision, and we believe it to be very wrong.   The Department of Justice has made clear that it is reviewing all of its options in responding to this case, as it does in all cases. Implementation will continue.
Legal experts agree with our assessment of Judge Vinson’s ruling. Here’s what they are saying about the ruling and the case:

Boston College Law Professor Brian Galle:

“The ACA and its accompanying incentives to buy insurance overcome a collective action problem among states.  Thus, the ACA is easily distinguished from the court's parade of broccoli horribles; even if one thought that the federal government should deal only with uniquely national problems, the ACA easily meets that standard.”

David Engstrom, Stanford Law School Faculty Member:

“The issue that the court has ruled on has been specifically contradicted by two other district courts. So, the idea that the Obama administration should somehow stand down from implementing the act, based on a fourth district court, doesn't have any basis in law.”

NYU Constitutional Law Professor Rick Hills:

“Consider the following train wreck of Necessary & Proper reasoning contained in Judge Vinson's opinion striking down the individual mandate:

• It is a legitimate end for Congress to regulate the insurance industry to prevent "insurers from excluding or charging higher rates to people with pre-existing conditions" (pages 60-61);

• The Individual Mandate in the ACA is "necessary" to enable Congress to regulate the insurance industry in this manner (page 63). Yet...

• "[T]he individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers."

Huh? How can a means that is conceded to be necessary for a legitimate end not be within Congress' implied powers to pursue that end? Judge Vinson never presents even the simulacrum of an argument: Instead, he engages in hand-waving.”

George Washington University Law Professor Orin Kerr:

“I think Judge Vinson’s argument on the Necessary and Proper Clause is not persuasive…Rather, my point is that Judge Vinson should not have used a first principle to trump existing Supreme Court caselaw when that principle may not be consistent with existing caselaw. Either Justice Thomas is wrong or Judge Vinson is wrong, and Judge Vinson was not making a persuasive legal argument when he followed the first principle instead of the cases. Because Judge Vinson is bound by Supreme Court precedent, I would think he should have applied the cases.”

Cornell University Law Professor Mike Dorf:

“Judge Vjavascript:void(0)inson appeared to base the total nonseverability decision partly on what he took to be Congressional intent.… Judge Vinson's approach ought to be especially unappealing to the Supreme Court's “textualists,” who don't even like to speculate about what Congress subjectively intended by the language it enacted.  How much worse it should be to speculate about what Congress might have done if it had known that a provision it enacted would subsequently be found invalid.”

Wisconsin attorney general: "Health care law is dead"

Greg Sargent's blog:

"The office of Wisconsin Attorney General J.B. Van Hollen, one of the states suing to overturn the Affordable Care Act, sends over this statement flatly declaring the law 'dead' for his state unless it's revived by a higher court, and asserting that this relieves state government of any and all its responsibilities to implement the law:"

This hints at a new line of criticism Dems can use, should other state governments do as Wisconsin is doing. The Affordable Care Act has already resulted in nearly $40 million in federal grant funding to Wisconsin. Now that the law is "dead," will Wisconsin return the money or rebuff any other federal grant money? Will other state governments declaring the law dead do the same? If so, how much money do they stand to lose? How will this impact their consistuents? It's a pretty worthwhile line of inquiry.

How the Media Has Covered the Four Rulings on the Affordable Care Act

Steve Benen takes a look at some of the media coverage of the four key rulings on the Affordable Care Act, and finds that the two rulings pronouncing the law unconstitutional received far more attention than the two upholding it.

Four federal district courts have heard challenges testing the constitutionality of the Affordable Care Act. Two judges concluded the law is legally permissible, two came to the opposite conclusion.

But it occurs to me the public has heard quite a bit more about the latter than the former. Indeed, it seems as if the media largely ignored court rulings that bolstered the arguments of health care reform proponents, while making a very big deal about rulings celebrated by conservatives.

Washington Post
* Steeh ruling (pro-reform): A2, 607 words
* Moon ruling (pro-reform): B5, 507 words
* Hudson ruling (anti-reform): A1, 1624 words
* Vinson ruling (anti-reform): A1, 1176 words

New York Times
* Steeh ruling (pro-reform): A15, 416 words
* Moon ruling (pro-reform): A24, 335 words
* Hudson ruling (anti-reform): A1, 1320 words
* Vinson ruling (anti-reform): A1, 1192 words

Associated Press
* Steeh ruling (pro-reform): one story, 474 words
* Moon ruling (pro-reform): one story, 375 words
* Hudson ruling (anti-reform): one story, 915 words
* Vinson ruling (anti-reform): one story, 1164 words

Politico
* Steeh ruling (pro-reform): one story, 830 words
* Moon ruling (pro-reform): one story, 535 words
* Hudson ruling (anti-reform): three stories, 2734 words
* Vinson ruling (anti-reform): four stories, 3437 words

Source: The Washington Monthly

Yet another gaping hole in Vinson's ruling?

Greg Sargent on Judge Vinson's ruling:

NYU law professor Rick Hills finds what looks like another gaping hole in Judge Vinson's ruling yesterday that the individual mandate -- and by extension the entire Affordable Care Act -- is unconstitutional.

Judge Vinson writes on page 62 of the ruling that the goal of "excluding or charging higher rates to people with pre-existing conditions" is clearly "legitimate" and "within the scope of the Constitution." He clarifies this by indicating that the means to that end must not be inconsistent with the "spirit" of the Constitution. But that end, he says, is valid.

Then, on page 63, Vinson writes that the defendants are right to assert that the individual mandate is "necessary" and "essential" to realizing that same end.

And yet, Vinson then goes on to conclude that "the individual mandate falls outside the boundary of Congress' Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers."

Which prompts this rejoinder from Professor Hill:

Huh? How can a means that is conceded to be necessary for a legitimate end not be within Congress' implied powers to pursue that end?

Now, in case you're tempted to dismiss this argument as coming from a pointy-headed east coast liberal professor, please note that conservative legal writer Orin Kerr has reached a similar conclusion about this part of Vinson's decision.

Kerr argues that there's nothing in Supreme Court caselaw that justifies Vinson's conclusion that the individual mandate falls "outside the boundary" of the commerce clause, and bluntly characterizes Vinson's argument here as the "weak link" in his decision.

********************************************************

UPDATE, 3:03 p.m.: Let me try to be a bit clearer about Kerr's argument. He's saying that Vinson's contention that the means (the mandate) to a legitimate end is outside the boundary of the commerce clause, and therefore not legitimate, is based on "first principles," and not on existing Supreme Court caselaw.

That seems to dovetail with Professor Hill's argument: That Vinson's contention that the mandate is not legitimate, even though it's necessary to accomplish a constitutionally legitimate end, is wholly arbitrary.

What happens if conservatives succeed in undermining the ACA?

From Ezra Klein:

The legal theory currently in vogue in conservative circles holds that the Constitution's vision of "a central government with limited power" -- to use Judge Vinson's phrase -- permits the government to establish a single-payer health-care system that every American pays into through payroll taxes and that wipes out the private insurance industry but forbids the government from administering a regulated market in which individuals purchase private insurance plans and pay a penalty if they can afford coverage but choose to delay buying it until they're sick.

There's a chance conservatives will come to seriously regret this stratagem. I think it's vanishingly unlikely that the Supreme Court will side with Judge Vinson and strike down the whole of the law. But in the event that it did somehow undermine the whole of the law and restore the status quo ex ante, Democrats would start organizing around a solution based off of Medicare, Medicaid, and the budget reconciliation process -- as that would sidestep both legal attacks and the supermajority requirement.

The resulting policy isn't too hard to imagine. Think something like opening Medicare to all Americans over age 45, raising Medicaid up to 300 percent of the poverty line, opening S-CHIP to all children, and paying for the necessary subsidies and spending with a surtax on the wealthy (which is how the House originally wanted to fund health-care reform). That won't get us quite to universal health care, but it'll get us pretty close. And it'll be a big step towards squeezing out private insurers, particularly if Medicaid and Medicare are given more power to control their costs.

Health reform and the “severability clause”—Will the entire Act be declared unconstitutional because of the individual mandate?

Let’s assume the state attorneys general are able to get the courts to agree that the mandate to purchase insurance is unconstitutional. Does that automatically mean that the court will declare the entire Act unconstitutional? Not necessarily. After declaring a section of an Act unconstitutional, the courts determine whether the remainder of the Act remains valid. The guiding principle is this according to a report on statutory interpretation from the Congressional Research Service quoting a ruling in Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976)). “Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.”

In other words, if the individual mandate to purchase health insurance is declared unconstitutional, then the issue will become whether Congress would have enacted the rest of the ACT if there were no individual mandate. We can be fairly certain that four members of the Supreme Court (Scalia, Thomas, Alito, and Roberts) will rule that the entire Act is unconjavascript:void(0)stitutional if they can find any piece of the Act unconstitutional such as the individual mandate. The question then becomes how the remaining five members of the court will rule. It should be very interesting.

Read more here....

Tea Party Judge Roger Vinson ‘Borrows Heavily’ From Family Research Council To Invalidate Health Law

From ThinkProgres

From the page: "The most surprising part of Judge Roger Vinson’s ruling was his argument that the individual mandate was not severable from the health care law as a whole and must therefor bring down the entire Affordable Care Act. “In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably ‘evident,' as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them to) survive independently,” Vinson writes.

But a closer read of his analysis reveals something peculiar. In fact, as Vinson himself admits in Footnote 27 (on pg. 65), he arrived at this conclusion by "borrow[ing] heavily from one of the amicus briefs filed in the case for it quite cogently and effectively sets forth the applicable standard and governing analysis of severability (doc. 123)." That brief was filed by the Family Research Council, which has been branded as a hate group by the Southern Poverty Law Center (SPLC). "

[...]

"Vinson's conclusion is peculiar because Congress usually defers to Congress on questions of severability. In fact, even Judge Henry Hudson - the Virginia Judge who also found the individual mandate to be unconstitutional - left the whole of the law intact noting, "It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to health care, without Section 1501. Therefore, this Court will hew closely to the time-honored rule to sever with circumspection, severing any "problematic portions while leaving the remainder intact.""

As Chief Justice John Roberts noted in Free Enterprise Fund et al. v. Public Company Accounting Oversight Board, Because [t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions," Champlin Refining Co. v. Corporation Comm of Okla. , 286 U. S. 210, 234 (1932) , the "normal rule" is "that partial, rather than facial, invalidation is the required course.""

Democrats mount most aggressive fight yet to protect healthcare reform law

The Hill's Healthwatch:

The White House and congressional Democrats are vowing to aggressively fight back against any efforts to dismantle their signature healthcare reform law despite a State of the Union promise to work with Republicans on improvements.

Americans oppose yanking healthcare law funds: poll

Reuters:

"More than half of those surveyed -- 62 percent -- said they did not approve of lawmakers cutting off funds needed to implement changes, which range from new rules for health insurance companies to tax credits for small businesses and state grants."

In Letter To Cantor, Schumer, Menendez Demand Answer To Key Repeal Question

From TPMDC:

"In a letter delivered to House Majority Leader Eric Cantor Sunday, Sens. Chuck Schumer (D-NY) and Robert Menendez (D-NJ) demand an answer to a question now at the center of the Republican party's top legislative priority: Will repealing the health care law force seniors to reimburse the government for the $250 check they received in 2010 to help them pay for prescription drugs?

'We are particularly concerned that repeal would reverse the course of making prescription drugs more affordable for seniors,' Schumer and Menendez write. 'The [repeal] legislation approved by the House could require seniors to repay the government.'

One of the major goals of the Affordable Care Act is to close the Medicare prescription drug coverage gap, better known to most as the 'donut hole.' The law will fill that hole over a decade, and in 2010, that meant many seniors received a $250 rebate check."

Can Congress Mandate Health Insurance?

From NPR:

The Necessary And Proper Clause

Koppelman, who teaches law at Northwestern University, says that the Constitution's 'necessary and proper clause' cannot be factored out of this debate.

'When somebody goes without health insurance, we can argue about whether they are or are not part of interstate commerce, but it doesn't matter,' Koppelman says.

Koppelman says that in order to carry out its responsibilities, Congress can enact policies that are not among its enumerated powers in the Constitution.

GOP Leadership Intentionally Distorting Obamacare As Job Killer

Rick Ungar - The Policy Page - Forbes:

"The Republican case is laid out in a document published on January 6th, under the authorship of the House GOP leadership and named, “Obamacare: A budget-busting, job-killing health care law.”

It’s an interesting document and well worth reading.

Indeed, the GOP arguments put forth in the study would be truly compelling were it not for the fact that the claims made are so astonishingly dishonest that it takes but a few hours of research to disprove and discredit virtually every substantial claim they make. If you question this, and I know many of you will, I have carefully provided links to each and every document and report the GOP has relied upon so that you may read these authorities for yourself."

Well worth the time to read the rest, where Mr. Ungar does the work for you.

Poll: Support for Health Care Repeal Drops

PBS:

"As the House of Representatives gears up to vote this week on a proposed repeal of the health care reform bill, public support for the move is falling.

Only 25 percent of people polled now support repealing the health care law, according to an Associated Press-GfK poll out Monday, compared to 46 percent on Jan. 7..."