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.

Dick Morris observes that, in return for that tremendous tax increase and resulting economic stagnation and unemployment, older people, the principal current users of health care, can look forward to rationing at their expense.

Obama’s health care proposal is, in effect, the repeal of the Medicare program as we know it. The elderly will go from being the group with the most access to free medical care to the one with the least access. Indeed, the principal impact of the Obama health care program will be to reduce sharply the medical services the elderly can use. No longer will their every medical need be met, their every medication prescribed, their every need to improve their quality of life answered.

It is so ironic that the elderly – who were so vigilant when Bush proposed to change Social Security – are so relaxed about the Obama health care proposals. Bush’s Social Security plan, which did not cut their benefits at all, aroused the strongest opposition among the elderly. But Obama’s plan, which will totally gut Medicare and replace it with government-managed care and rationing, has elicited little more than a yawn from most senior citizens.

It’s time for the elderly to wake up before it is too late! …

Today, 800,000 doctors struggle to treat adequately the 250 million Americans who have insurance. Obama will add 50 million more to their caseload with no expansion in the number of doctors or nurses. Indeed, his plan will likely reduce their number by lowering reimbursement rates and imposing bureaucrats above them who will force medical decisions down their throats. Fewer doctors will have to treat more patients. The inevitable result will be rationing.

And it is the elderly who rationing will most effect. Who should get a knee replacement a 40 year old or a 70 year old? Who should get a new hip, a young person or an old person? Who should have priority in the operating room a seventy year old diabetic who needs bypass surgery or a younger person? Obviously, it is the elderly who will get short shrift under his proposal.

Read the whole thing.

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Skeptical? Just read between the lines of this New York Times article by radical leftwing ethicist Peter Singer, no less, hailing government rationing of heath care as inevitable and a fine thing, too. Says Singer:

The debate over health care reform in the United States should start from the premise that some form of health care rationing is both inescapable and desirable.

60% of Americans pay no income taxes right now. Democrats want people who do pay taxes to buy everybody their health care, too. How do they plan to pay for all this?

With more than a trillion dollars in new taxes, falling primarily on small business owners and investors, as the Wall Street Journal explains:

(The) draft bill would impose a “surtax” on individuals with adjusted gross income of more than $280,000 a year. This would hit job creators especially hard because more than six of every 10 who earn that much are small business owners, operators or investors, according to a 2007 Treasury study. That study also found that almost half of the income taxed at this highest rate is small business income from the more than 500,000 sole proprietorships and subchapter S corporations whose owners pay the individual rate.

In addition, many more smaller business owners with lower profits would be hit by the Rangel plan’s payroll tax surcharge. That surcharge would apply to all firms with 25 or more workers that don’t offer health insurance to their employees, and it would amount to an astonishing eight percentage point fee above the current 15% payroll levy.

Here’s the ugly income-tax math. First, Mr. Obama has promised to let the lower Bush tax rates expire after 2010. This would raise the top personal income tax rate to 39.6% from 35%, and the next rate to 36% from 33%. The Bush expiration would also phase out various tax deductions and exemptions, bringing the top marginal rate to as high as 41%.

Then add the Rangel Surtax of one percentage point, starting at $280,000 ($350,000 for couples), plus another percentage point at $400,000 ($500,000 for couples), rising to three points on more than $800,000 ($1 million) in 2011. But wait, there’s more. The surcharge could rise by two more percentage points in 2013 if health-care costs are larger than advertised — which is a near-certainty. Add all of this up and the top marginal tax rate would climb to 46%, which hasn’t been seen in the U.S. since the Reagan tax reform of 1986 cut the top rate to 28% from 50%.

States have also been raising their income tax rates, so in California and New York City the top rate would be around 58%. The Tax Foundation reports that at least half of all states would have combined state-federal tax rates of more than 50%.

Mr. Rangel also wants to apply his surcharges to investment income like capital gains. So the combined effect of repealing the Bush tax cuts and the new surcharges would be to raise the tax on stock appreciation by at least 60% — to as high as 24% from 15% today. President Obama has been worrying about a capital squeeze on small businesses, but raising the capital gains tax would only further starve them of funds. …

America’s successful small businesses would pay higher tax rates than the Fortune 500, and for that matter than most companies around the world. The corporate federal-state tax rate applied to General Electric and Google is about 39% in the U.S., and the business tax rate is about 25% in the OECD countries. So the U.S. would have close to the most punitive taxes on small business income anywhere on the globe.

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Greg Mankiw notes that the final tax impact after state sales taxes are included would take over half of top earners’ incomes.

(Some) calculations seem to ignore sales taxes, which are significant in many states. Because income earned will eventually be spent and thus subject to sales taxes, sales tax rates need to be combined with income tax rates to find the true tax wedge that distorts the consumption-leisure decision. Once sales taxes are included, a top earner in a typical state would face a marginal tax rate of about 55 percent.

So much for an economic recovery. If this monstrosity passes, get ready for many years of economic chaos and decline. Teach your kids how to ask “Will you have fries with that?” in Mandarin would be my advice.

Mark Steyn notes that the claim that government can deliver a scarce item cheaper to more people resembles promises to sell you a certain well-known bridge.

When President Barack Obama tells you he’s “reforming” health care to “control costs,” the point to remember is that the only way to “control costs” in health care is to have less of it. In a government system, the doctor, the nurse, the janitor and the Assistant Deputy Associate Director of Cost-Control System Management all have to be paid every Friday, so the sole means of “controlling costs” is to restrict the patient’s access to treatment. In the Province of Quebec, patients with severe incontinence – i.e., they’re in the bathroom 12 times a night – wait three years for a simple 30-minute procedure. True, Quebeckers have a year or two on Americans in the life expectancy hit parade, but, if you’re making 12 trips a night to the john 365 times a year for three years, in terms of life-spent-outside-the-bathroom expectancy, an uninsured Vermonter may actually come out ahead.

As Louis XV is said to have predicted, “Après moi, le deluge” – which seems as incisive an observation as any on a world in which freeborn citizens of the wealthiest societies in human history are content to rise from their beds every half-hour every night and traipse to the toilet for yet another flush simply because a government bureaucracy orders them to do so. “Health” is potentially a big-ticket item, but so’s a house and a car, and most folks manage to handle those without a Government Accommodation Plan or a Government Motor Vehicles System – or, at any rate, they did in pre-bailout America. …

[B]y historical standards, we’re loaded: We have TVs and iPods and machines to wash our clothes and our dishes. We’re the first society in which a symptom of poverty is obesity: Every man his own William Howard Taft. Of course we’re “vulnerable”: By definition, we always are. But to demand a government organized on the principle of preemptively “taking care” of potential “vulnerabilities” is to make all of us, in the long run, far more vulnerable. A society of children cannot survive, no matter how all-embracing the government nanny.

When I was young, eons ago, when dinosaurs still walked the earth, doctors didn’t turn people away because they didn’t have health insurance. When Doctor Jones ran into an indigent patient, he simply shrugged, took care of the patent, and figured that it was his turn to do something charitable.

What has changed isn’t human nature, but the intensity of our regulatory environment and our politics. Government tax policy gradually created a health care corporate regime in which people employed by big companies used to get any amount of health services for absolutely nothing.

When you don’t pay for things, you have no incentive to economize, so demand rose and health care costs dramatically escalated. Meanwhile, government went along giving away more and more free health care to the elderly. So a while back, it became a joint interest of government and insurance companies to do something to control costs.

They made a deal. Government would set fixed prices for procedures and services delivered via medicare, and insurance companies would only pay at those same (lesser) medicare rates. Hard cheese for doctors, of course, but hey! cost cutting is important.

We have since experienced a bizarre regime of increasingly reduced health insurance benefits, managed by occult fine print to bamboozle beneficiaries into thinking they have coverage until doctors and hospitals subsequently surprise them by balance billing. The balance is the difference between what insurance companies are willing to pay and what health care providers want to charge.

The current situation featuring constant covert fighting over dollars makes charity its victim, too. If a hospital or physician treats that derelict indigent for free, ahem! the eyeshade-wearing bean-counter in Mega Insurance’s head office contends that was only possible by adding extra unjustified costs to the services Mega is paying for, and Mega wants a refund. That refund, you see, is supposed to come from your uncle and mine in Washington.

Thus, Capitalism is busily greasing the skids as we slide into Socialism.

Socialized medicine is just like heroin: it creates a dependency that’s very difficult to give up. James Pethokoukis explains that Tom Daschle and the democrat party want to be your connection.

As Norman Markowitz in Political Affairs, a journal of “Marxist thought,” puts it: “After the Labor Party established the National Health Service after World War II, supposedly conservative workers and low-income people under religious and other influences who tended to support the Conservatives were much more likely to vote for the Labor Party when health care, social welfare, education and pro-working class policies were enacted by labor-supported governments.”

Passing Obamacare would be like performing exactly the opposite function of turning people into investors. Whereas the Investor Class is more conservative than the rest of America, creating the Obamacare Class would pull America to the left. Michael Cannon of the Cato Institute, who first found that wonderful Markowitz quote, puts it succinctly in a recent blog post: “Blocking Obama’s health plan is key to the GOP’s survival.”