Some commentators thought the Supreme Court’s failure to grant cert in Alderman v. US, a 9th Circuit case involving possession of body armor by a felon, testing the reach of the Commerce Clause, may have evidenced an inclination on the part of the Court to decline to consider the same kind of issue as it applies to a federal mandate to purchase health insurance as part of Obamacare.

Well, now that half of all the states in the Union are in court asking that the democrat Health Care Reform Bill be struck down as unconstitutional, it seems to me increasingly less likely that the Supreme Court will feel able to shirk making a historic decision.

[T]he newly elected governors of Ohio, Oklahoma, Maine, and Wisconsin have all decided to sue the Obama administration in hopes of stopping Obamacare. Specifically, Gov. Mary Fallin of Oklahoma has announced that the Sooner State will pursue its own case against the law, while Govs. John Kasich (R) and Scott Walker (R) (of Ohio and Wisconsin respectively) will add their states to Florida’s multi-state suit. And yesterday, newly sworn-in state Attorney General William Schneider announced Maine would also join the the Florida litigation. That brings the number of states on the Florida suit to 23 and the total number of states suing to stop Obamacare (which includes Virginia and Oklahoma) to 25.

Back in 1950, the American Medical Association was firmly opposed to socialized medicine. The same organization endorsed Obamacare in 2010 demonstrating just how far the country and its institutions and professions have declined.

The Weekly Standard tells us that Kathleen Sebelius’s Department of Health and Human Services has harnessed the power of the popular Google search engine to give the public a better opinion of Obamacare.

Try typing “Obamacare” into Google, and you’ll find that the first entry is now the Obama administration’s www.healthcare.gov. If you don’t particularly like that result, you’ll probably hate the fact that you’re paying for it.

You’ll get the same paid-for result if you type in “Obamacare facts,” “Obamacare summary,” “Obamacare info,” “Obamacare overview,” “Obamacare questions,” “Obamacare explanation,” “Obamacare basics,” “Obamacare pros and cons,” “Obamacare and elderly,” and even “Obamacare and abortion.” For each of these search terms, and many others, the Obama administration’s site comes up first, as a paid entry. But it doesn’t come up if you type in “ObamaCare repeal.”

Politico’s Ben Smith, in a post entitled “HHS Buys ‘ObamaCare,'” quotes an official from Secretary Kathleen Sebelius’s Department of Health and Human Services (HHS), who confirms that this clear attempt to influence what Americans read about Obamacare does, indeed, represent your tax dollars at work.

Via Christopher Taylor. Originaly discovered by George Scoville.

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.

Via Theo.

Reason’s Shikha Dahlmia seems to have identified what is very possibly the health care bill’s most alarming feature.

There are a great many things wrong with Obamacare, but the biggest is perhaps one that neither party is paying any attention to: It is one huge entrapment scheme that will turn patients and providers into criminals. …

It has created a new interagency task force called HEAT (Health Care Fraud Prevention and Enforcement Action Team) under which health-care officials will collaborate with the FBI to go after Medicare fraud. In addition, it has expanded to several cities the Medicaid Fraud Strike Force that authorizes FBI and Drug Enforcement Agency agents to jointly analyze Medicare claims data in real time to detect and investigate irregularities by area doctors.

More chillingly, however, the administration is defining Medicare fraud down to include “unnecessary” and “ineffective” care. And to root this out, it plans to make expanded use of private mercenaries—officially called Recovery Audit Contracts—who will be authorized to go to doctors’ offices and rummage through patients’ records, matching them with billing claims to uncover illicit charges. What’s more, Obamacare increases the fine for billing errors from $11,000 per item to $50,000 without the government even having to prove intent to defraud.

This is utter insanity. And it has been caused by the transformation of health care into a government-controlled industry where the natural, self-regulating forces of the market have been badly subverted. There is nothing left but the coercive apparatus of the state to keep patients and doctors in line. This would be unimaginable where the customers receiving or contracting for services are actually the ones paying for it. If Whole Foods “overbilled” its shoppers, they would just go to Trader Joe’s. No one would think of summoning the police. If a mechanic submitted unjustified bills to All State Insurance for car repairs, All State would contract with someone else. There would be no need for an FBI stakeout.

Obamacare is pushing America down the road to serfdom, but neither its opponents nor advocates seem to have noticed. It is time for civil libertarians in both parties to wake up and strangle it before it strangles what’s left of American freedoms.

Urging grandma to give up on expensive treatments and climb quietly out onto the icefloe will be funded by Medicare as the result of new regulations issued by former Harvard professor and self-proclaimed Marxist Donald Berwick.

The obvious conflict of interest involved in the same government footing the bill under a socialist health system operating a system of “end of life planning,” incentivizing physicians to encourage patients to forgo treatment and medications, was identified by Republicans, particularly Sarah Palin, and subsequent public outrage led to what became widely referred to as “death panels” being removed from the actual Obamacare bill passed by Congress.

Dr. Berwick, in fact, very much resembles death panels himself, being similarly too radical to get through the Senate, and having become Medicare Czar and Federal Health Care Rationer-in-Chief via a recess appointment.

Thus, Barack Obama demonstrates how democracy and the Constitution can be exponentially evaded. What cannot possibly be achieved through legislation can simply be decreed as a regulation by an unconfirmable recess-appointee Czar.

New York Times:

When a proposal to encourage end-of-life planning touched off a political storm over “death panels,” Democrats dropped it from legislation to overhaul the health care system. But the Obama administration will achieve the same goal by regulation, starting Jan. 1.

Under the new policy, outlined in a Medicare regulation, the government will pay doctors who advise patients on options for end-of-life care, which may include advance directives to forgo aggressive life-sustaining treatment. …

The final version of the health care legislation, signed into law by President Obama in March, authorized Medicare coverage of yearly physical examinations, or wellness visits. The new rule says Medicare will cover “voluntary advance care planning,” to discuss end-of-life treatment, as part of the annual visit.

Under the rule, doctors can provide information to patients on how to prepare an “advance directive,” stating how aggressively they wish to be treated if they are so sick that they cannot make health care decisions for themselves.

While the new law does not mention advance care planning, the Obama administration has been able to achieve its policy goal through the regulation-writing process, a strategy that could become more prevalent in the next two years as the president deals with a strengthened Republican opposition in Congress. …

Several Democratic members of Congress, led by Representative Earl Blumenauer of Oregon and Senator John D. Rockefeller IV of West Virginia, had urged the administration to cover end-of-life planning as a service offered under the Medicare wellness benefit. A national organization of hospice care providers made the same recommendation.

Mr. Blumenauer, the author of the original end-of-life proposal, praised the rule as “a step in the right direction.” …

After learning of the administration’s decision, Mr. Blumenauer’s office celebrated “a quiet victory,” but urged supporters not to crow about it.

“While we are very happy with the result, we won’t be shouting it from the rooftops because we aren’t out of the woods yet,” Mr. Blumenauer’s office said in an e-mail in early November to people working with him on the issue. “This regulation could be modified or reversed, especially if Republican leaders try to use this small provision to perpetuate the ‘death panel’ myth.”

Moreover, the e-mail said: “We would ask that you not broadcast this accomplishment out to any of your lists, even if they are ‘supporters’ — e-mails can too easily be forwarded.”

The e-mail continued: “Thus far, it seems that no press or blogs have discovered it, but we will be keeping a close watch and may be calling on you if we need a rapid, targeted response. The longer this goes unnoticed, the better our chances of keeping it.” …

The proposal for Medicare coverage of advance care planning was omitted from the final health care bill because of the uproar over unsubstantiated claims that it would encourage euthanasia.

Sarah Palin, the 2008 Republican vice-presidential candidate, and Representative John A. Boehner of Ohio, the House Republican leader, led the criticism in the summer of 2009. Ms. Palin said “Obama’s death panel” would decide who was worthy of health care. Mr. Boehner, who is in line to become speaker, said, “This provision may start us down a treacherous path toward government-encouraged euthanasia.” Forced onto the defensive, Mr. Obama said that nothing in the bill would “pull the plug on grandma.” …

The rule was issued by Dr. Donald M. Berwick, administrator of the Centers for Medicare and Medicaid Services and a longtime advocate for better end-of-life care.

We knew that already. Federal judge Henry Hudson ruling in the lawsuit brought by Virginia Attorney General Ken Cuccinelli agrees.

There is nothing in the Constitution granting Congress the power to make you buy health insurance. The case will obviously be appealed to the Supreme Court, and Justice Kennedy will almost certainly be the 5th vote killing Obamacare dead as Fogarty’s goat.

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.