House Roll Call

Jeff Dobbs gleefully notes the margin for repeal comfortably exceeds the margin by which it passed:

March 21, 2010:
House passes health care bill on 219-212 vote

January 7, 2011:
House Votes to Repeal “Job-Killing” Health Care Law 236-181

In 2010, the Democrats passed ObamaCare by a 7 vote margin. In 2011, the Republicans passed the bill to repeal ObamaCare with a 55 vote margin.

Three out of four democrats voting for repeal were members of the 26 member Blue Dog Coalition: Dan Boren (2-OK), Mike McIntyre (7-NC), and Mike Ross (4-AR). Larry Kissel (8-NC), who also voted for repeal, is not a member.

Michigan federal district Judge George Caram Steeh III upheld the Obamacare individual health insurance purchase mandate in a case challenging the law brought by the conservative Christian Thomas More Law Center.

The Politico story

Steeh’s decision referred to a number of intellectually questionable precedents expanding the Commerce Clause outrageously through the use of casuistical reasoning.

As Judge Steeh not inaccurately observes, a body of precedent law exists sustaining congressional edicts based on the constitutional power to regulate interstate commerce effectively reaching all sorts of persons and activities not in fact engaged in Interstate Commerce.

Post New Deal jurisprudential understanding of the Commerce Clause limitation amounted to the Constitution forbidding congressional interference only in cases of individual persons or activities that could not be in any way, shape or form theoretically causally connected (even negatively) to the national economy or to rational goals of liberal policy by clever and well-educated attorneys.

Such a standard is, of course, completely nugatory and impotent to stop anything at all, and Judge Steeh abashedly alludes to the relatively recent, and distinctly innovative for their era, cases of Morrison and Lopez to establish the contrary. I smiled ironically upon reading that.

The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market. As inseparable and integral members of the health care services market, plaintiffs have made a choice regarding the method of payment for the services they expect to receive. The government makes the apropos analogy of paying by credit card rather than by check. How participants in the health care services market pay for such services has a documented impact on interstate commerce. Obviously, this market reality forms the rational basis for Congressional action designed to reduce the number of uninsureds.

The Supreme Court has consistently rejected claims that individuals who choose not to engage in commerce thereby place themselves beyond the reach of the Commerce Clause. See, e.g., Raich, 545 U.S. at 30 (rejecting the argument that plaintiffs’ homegrown marijuana was “entirely separated from the market”); Wickard, 317 U.S. at 127, 128 (home-grown wheat “competes with wheat in commerce” and “may forestall resort to the market”); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (Commerce Clause allows Congress to regulate decisions not to engage in transactions with persons with whom plaintiff did not wish to deal). Similarly, plaintiffs in this case are participants in the health care services market. They are not outside the market. While plaintiffs describe the Commerce Clause power as reaching economic activity, the government’s characterization of the Commerce Clause reaching economic decisions is more accurate.

Judge Steeh’s decision is a competent and professionally produced example of carefully reasoned liberal statism, and very much represents the Keep-the-Constitution-in-Exile reasoning that will be used to defend Obamacare when the various state lawsuits eventually reach the Supreme Court.

The New Federalism and Rational Basis casuistry will meet again in the nation’s highest court before terribly long.

Ilya Somin, at Volokh, pessimistically believes the mandate is more likely to be upheld than not.

I think we have the better reasoning and a narrow conservative majority on the Court, backed by a national negative consensus on Obamacare. I’m not so sure we are going to lose.

Going around by email these days.

Via John Zebraitis.

James Capretta, at National Review Online, takes a look at the first six months of “reform.”

He finds the foundations well underway for massive bureaucracy resulting in the politicization of patient care decisions, with the Obama Administration engaging in disinformation campaigns and power plays, and making threats against the livelihoods of businesses affected which protest.

During the long national debate over the future of American health care, President Obama frequently chastised his opponents for launching exaggerated attacks on his plan for “reform.” He took particular exception to the criticism that the changes he was pushing amounted to a government takeover of the whole health sector. He knew full well that this kind of criticism might derail the entire effort in Congress, because most Americans recoil at the thought of a distant and bureaucratic federal government running the health-care system for everyone. So Obama vigorously denied that his program would lead to any such thing. In his Aug. 8, 2009, radio address, he described the “takeover” accusation as “outlandish” and characterized his approach as a mainstream and moderate attempt simply to reform the nation’s private health-insurance system.

It’s now been six months since Congress passed Obamacare — not a long time given the sweeping nature of the legislation and the long phase-in schedule for its most significant provisions. Even so, it is already abundantly clear that Obamacare’s critics were dead right: The new health law has set in motion a government takeover of American health care, and a very hostile one at that. The Obama administration’s clumsy and overbearing behavior since its passage proves the point.

Read the whole thing.

Death of Achilles, Villa Reale, Milan

Louis Case, at American Thinker, points out that the complicated Machiavellian shenanigans needed to get Obamacare through Congress inevitably include the potential legal seed of the destruction of the entire bill.

Virginia’s lawsuit argues that the federal government has no constitutional authority to require individuals to purchase health insurance policies.

Virginia is asserting that certain portions (that is, the personal mandate) of ObamaCare are unconstitutional. If Virginia prevails, it leaves the question of what happens to the rest of the ObamaCare statute. This is where the concept of severance comes in. Normally, all comprehensive laws contain a boilerplate severance clause: it says that if any portion of the law is found to be unconstitutional, that portion is severed from the rest of the law — that is, the rest of the law stands.

But ObamaCare contains no severance clause. Virginia is asserting that if it prevails on its substantive claims, the whole law is unconstitutional. (If Virginia does not prevail, any one of the twenty-plus legal challenges have the same severance argument available.)

If a severance clause is normal boilerplate, why does not ObamaCare contain one? This is where Scott Brown’s election enters. Recall that the House passed its version of ObamaCare. On Christmas Eve, after much horsetrading and bribing, the Senate passed its version. The Senate version was not drafted to be in its final form; it was drafted to get 60 votes. Normally, these bills would be reconciled in a conference committee, and the final version would have to be voted on again with 60 votes in the Senate. However, before it could be sent to conference and reconciled, Scott Brown won in Massachusetts — a reconciled bill could no longer get 60 votes! That is why the House had to vote up or down on the Senate bill, which was basically a draft without the normal boilerplate inserted.

As Virginia argued in its Memorandum (Pages 24 to 28), the presence of a severance clause raises a presumption that Congress did not intend the whole statute to depend on the constitutionality of any particular clause. But with no severance clause, they are not entitled to that presumption. A court cannot sever the offending clause on its own if the statute would not function as Congress intended.

Michael Barone observes HHS Secretary Kathleen Sebelius demonstrating exactly what Obamacare is really about: Power.

“There will be zero tolerance for this type of misinformation and unjustified rate increases.”

That sounds like a stern headmistress dressing down some sophomores who have been misbehaving. But it’s actually from a letter sent Thursday from Health and Human Services Secretary Kathleen Sebelius to Karen Ignagni, president of America’s Health Insurance Plans — the chief lobbyist for private health insurance companies.

Sebelius objects to claims by health insurers that they are raising premiums because of increased costs imposed by the Obamacare law passed by Congress last March.

She acknowledges that many of the law’s “key protections” take effect later this month and does not deny that these impose additional costs on insurers. But she says that “according to our analysis and those of some industry and academic experts, any potential premium impact … will be minimal.”

Well, that’s reassuring. Er, except that if that’s the conclusion of “some” industry and academic experts, it’s presumably not the conclusion of all industry and academic experts, or the secretary would have said so.

Sebelius also argues that “any premium increases will be moderated by out-of-pocket savings resulting from the law.” But she’s pretty vague about the numbers — “up to $1 billion in 2013.” Anyone who watches TV ads knows that “up to” can mean zero.

As Time magazine’s Karen Pickert points out, Sebelius ignores the fact that individual insurance plans cover different types of populations. So that government and “some” industry and academic experts think the new law will justify increases averaging 1 percent or 2 percent, they could justify much larger increases for certain plans.

Or as Ignagni, the recipient of the letter, says, “It’s a basic law of economics that additional benefits incur additional costs.”

But Sebelius has “zero tolerance” for that kind of thing. She promises to issue regulations to require “state or federal review of all potentially unreasonable rate increases” (which would presumably mean all rate increases).

And there’s a threat. “We will also keep track of insurers with a record of unjustified rate increases: those plans may be excluded from health insurance Exchanges in 2014.”

That’s a significant date, the first year in which state insurance exchanges are slated to get a monopoly on the issuance of individual health insurance policies. Sebelius is threatening to put health insurers out of business in a substantial portion of the market if they state that Obamacare is boosting their costs. …

The threat to use government regulation to destroy or harm someone’s business because they disagree with government officials is thuggery. Like the Obama administration’s transfer of money from Chrysler bondholders to its political allies in the United Auto Workers, it is a form of gangster government.

The GOP has a reasonable chance of recapturing the Senate in November, but it looks like it is definitely going to take the House.

Even with a Republican-controlled Senate, there will probably be enough RINOs from Maine and Massachusetts and other states to stop efforts to repeal the socialization of the American health care system, and even if we did have enough votes in the Senate, the Obamination has the veto.

But, leftwing Talking Points Memo is warning, a Republican House still has other tactics available. Most particularly, the power of the purse. The House can just defund Obamacare.

House GOP Conference Chair Mike Pence [said] “We’ll also use whatever means are available to delay implementation of Obamacare.”

Pence cited the “power of the purse” — Congress’ prerogative to appropriate funds to federal agencies — as a key tool at the Republicans’ disposal if they win back the House. That’s not just bluster.

“The most serious, yet realistic, possibility is precisely the one that you’re suggesting: what the Republicans can do through appropriations bills,” says Paul van de Water, a health care expert at the Center on Budget and Policy Priorities.

In short, implementing the health care law costs money. “Some money was provided in the health reform bill itself, but not by any means all the administrative funding that will be needed,” van de Water said. “If HHS and Treasury don’t get appropriations they need to run the law well, that could be a real problem. It’s not sexy but it’s serious.”

This can work one of few ways. House Republicans, in negotiations with the Senate, could demand appropriation levels beneath what’s necessary to effectively implement the law. If the two chambers reach an agreement — even an agreement that leaves the health care law cash strapped — Obama would be hard pressed to issue a veto. “It’s hard for the president to veto a bill because it doesn’t provide enough money.”

“In theory [they] could cut the funding 10 percent, 15 percent, 20 percent,” says Congressional expert Norm Ornstein of the American Enterprise Institute. “The problem is, you could do a lot of damage in a lot of different places.”

But things could shake out differently. An agreement might not be reached, for instance. Or, similarly, Republicans could simply “refuse to fund the entire Labor-HHS appropriations bill, or…pass an appropriation for Labor-HHS that does not include any funds for implementation of the health care plan,” as Ornstein put it.

“They could really bollocks things up if they say ‘none of the funds in this bill can be used to administrate the Affordable Care Act,” echoes van de Water.

That could lead to a veto and then a showdown between the White House and the Hill, mimicking the 1995 standoff between Bill Clinton and then-House Speaker Newt Gingrich. …

There are other tricks the GOP could pull, too. “A second thing that they can do is hold a bunch of hearings and try to tie HHS and CMS into knots, by subpoenaing docs calling in of key figures to testify. In effect, deliberate sabotage to gum up the works,” Ornstein adds.

It’s all but impossible to get Democrats to discuss this threat openly — it’s election season, and they have to hew tightly to the line that a GOP takeover of the House is impossible. But it’s not.

Let’s make sure Republicans are prepared to follow through with exactly what TPM is warning about.

Queen Nancy

Not looking forward to dramatically increased health care insurance premiums and soon-to-be rationed services? Americans can console themselves that their sacrifices make it possible for Lady Bountiful Nancy Pelosi to encourage other Americans to quit those day jobs and follow their bliss.

0:36 video

“We see it as an entrepreneurial bill,” Pelosi said, “a bill that says to someone, if you want to be creative and be a musician or whatever, you can leave your work, focus on your talent, your skill, your passion, your aspirations because you will have health care.”

Hat tip to Tabitha Hale.

His Wikipedia bio describes him as a “marxist.” He is a Harvard professor and a technocrat with his own health care think tank. Naturally, Donald Berwick believes in central planning by experts like himself, and Barack Obama has nominated him for a post which will effectively give him the ability to impose a regime of treatments and protocols prescribed by a committee on every doctor and hospital in the United States. The new regime, of course, will have to be designed to supply services for free on a universal basis, so rationing and cost control will inevitably play a very key role in all the planning, but that’s just fine, Dr. Berwick tells us in the video below: “Excellent health care is by definition redistributional.”

Philip Klein, in the American Spectator, has details.

Obama’s choice to head the Centers for Medicare and Medicaid Services, Donald Berwick, [is] a Harvard professor with a self-professed love affair with Britain’s socialized health care system. In his writings and speeches, Berwick has defended government rationing and advocated centralized budget caps on health care spending.

“Cynics beware, I am romantic about the (British) National Health Service; I love it,” Berwick said in a July 2008 speech at England’s Wembley stadium. “All I need to do to rediscover the romance is to look at health care in my own country.”

While Berwick would not have the authority to impose a British health care system on the United States in one fell swoop, as head of CMS, he would be running both Medicare and Medicaid. Given that the two programs alone account for more than one out of every three dollars spent on health care in America (all government programs combined account for 47 percent), private players tend to follow CMS’s lead. Berwick himself has made this point.

“(G)overnment is an extraordinarily important player in the American health care scene, and it has inescapable duties with respect to improvement of care, or we’re not going to get improved care,” he said in a January 2005 interview with Health Affairs. “Government remains a major purchaser.… So as CMS goes and as Medicaid goes, so goes the system.”

There are two basic visions for how to contain the growth of health care spending. The free market approach would give individuals control over their health care dollars, with the idea that it would encourage more shopping that will drive down costs and increase quality as has happened in every other aspect of the consumer-based economy. But the other approach, employed by nations such as Britain, is to have the government ration care to meet a global budget.

President Obama rejected the market-based approach, and sought to drastically expand insurance coverage while reducing health care costs. But according to a report by CMS’s chief actuary, the new law will actually increase health care costs. That leaves rationing of care based on a bureaucratic notion of the common good as the remaining option for containing skyrocketing spending, and it’s an outcome that Berwick himself once predicted would be necessary to achieve universal coverage.

“(T)he Holy Grail of universal coverage in the United States may remain out of reach unless, through rational collective action overriding some individual self-interest, we can reduce per capita costs,” Berwick wrote in an article for Health Affairs he co-authored in 2008.

He went on to write that, “The hallmarks of proper financial management in a system… are government policies, purchasing contracts, or market mechanisms that lead to a cap on total spending, with strictly limited year-on-year growth targets.”

On a number of occasions, Berwick has praised Britain’s National Institute for Clinical Excellence (NICE), a body of experts that advises the government-run health care system on how to allocate medical spending based on cost-benefit analysis. Among other decisions, they have ruled against the use of cancer-treating drugs and put a dollar value on the final six months of human life.

“NICE is extremely effective and a conscientious, valuable, and — importantly — knowledge-building system,” Berwick said in an interview last June in Biotechnology Healthcare. “The fact that it’s a bogeyman in this country is a political fact, not a technical one.”

The national health care law that President Obama signed in March will greatly expand the role of CMS by adding an estimated 15 million beneficiaries to Medicaid. In addition, the law contains a number of initiatives, to be spearheaded by the Secretary of Health and Human Services in conjunction with the head of CMS, to provide incentive-based pay to doctors and hospitals based on performance. This builds on the comparative effectiveness research provision of last year’s economic stimulus package. While none of these measures will have the same sway as NICE does in Britain, taken together, they will move America in a NICE-like direction, especially with Berwick at the helm.

2:15 video
“Any health care funding plan that is just equitable civilized and humane must, must redistribute wealth from the richer among us to the poorer and the less fortunate. Excellent health care is by definition redistributional.” – Donald Berwick

Remember Barack Obama’s campaign promises about an open and complete public debate “on C-Span” when, after his election, he would proceed to try to enact health care reform?

Obama promised openness and “an honest process.” In reality, the bill was drafted by powerful democrat politicians behind closed doors, rammed into law via a series of shady political shortcuts around normal legislative rules, and the release of the results of an analysis by the government’s own economic experts deliberately delayed in order to conceal the truth from the public.

Washington Prowler:

The economic report released last week by Health and Human Services, which indicated that President Barack Obama’s health care “reform” law would actually increase the cost of health care and impose higher costs on consumers, had been submitted to the office of HHS Secretary Kathleen Sebelius more than a week before the Congressional votes on the bill, according to career HHS sources, who added that Sebelius’s staff refused to review the document before the vote was taken.

“The reason we were given was that they did not want to influence the vote,” says an HHS source. “Which is actually the point of having a review like this, you would think.”

Sue Lowden, Republican candidate for the Senate from Nevada

Snotty progressives are laughing themselves silly over Nevada Senate candidate Sue Lowden’s reference to the old fashioned practice of impecunious patients compensating their doctor with gifts of goods or services.

In reality, back when I was a boy and even earlier, when you went to the doctor or the hospital, they just treated you. The modern custom of demanding that you fill out a form promising to pay and supply your insurance card before they look at you did not exist.

A small percentage of patients, of course, couldn’t, or wouldn’t, pay. In the old days, doctors just looked on treating such patients as their personal charitable contribution to the community and an inevitable part of the cost of practicing their profession.

The poor, of course, consisted of two kinds of people. There were the unfortunate but decent people, and there were the bums and deadbeats. Doctors could console themselves that they would only have to treat deadbeats once in a very long time, since shame would cause the deadbeat patient to go down the road to another physician the next time he was ill, and he’d naturally work his way through every available other doctor in the neighborhood before returning to the first.

Respectable people without money would find a way to compensate their doctor. One doctor I used to know as a boy received fresh baked bread every week from a widow on Social Security he’d taken care of. Men would turn up at the doctor’s house on Saturday, look over the premises, and find painting or repairs that needed to be done and start working without permission. Farmers without money would deliver fresh produce or meat. Yes, a doctor might well be given a number of chickens.

The left finds the idea that it is possible to try to discharge a debt informally and without cash changing hands funny. Personally, I’d say that all the sneering and crude guffawing over Ms. Lowden’s observation simply demonstrates all over again just how provincial, unsophisticated, and unfamiliar with normal life modern leftwing fashionistas really are.

One of my Yale classmates was snickering away this morning, sarcastically asking the doctors in the class how they’d like being paid by barter. I responded:

How about you? You’re a lawyer. Suppose some poor little old widow lady getting $600 a month on Social Security came to you and begged you to represent her. You know she can’t afford to pay you, and you know she needs the help. So when you solved her little problem, she sends you cookies at Xmas time every year. Does that work for you, or are you going to insist on a program forcing everybody in America to pay thousands of dollars a year for legal services insurance or go to jail, and a big federal bureaucracy rationing legal services and setting your fee schedule?

Michael Ramirez cartoon

Hat tip to John Hinderaker via the News Junkie.