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CCHF Health Freedom eNews

March 30, 2012

Letter from CCHF's President

This was an historic week for health care - and the U.S. Constitution. For three days, Obamacare was on trial in the U.S. Supreme Court. The justices will rule by the end of June. Enjoy this special edition of our weekly newsletter. It is primarily devoted to the oral arguments surrounding the controversial - might I say unconstitutional - individual mandate.

May I suggest that you take the opportunity this week or next week to not only read the transcripts, but perhaps actually listen to the arguments. The texts are good, but the tapes are much better:

Day One -Tax or Penalty?
Day Two - Individual Mandate
Day Three - Severability
Day Three - Medicaid

Maybe you'll find a couple of typos like I did. For instance, the mandate transcript on page 25, line 19-20 quoting Justice Scalia says "And here you're regulating somebody who isn't covered." I listened to the tape several times. Scalia actually said, "And here you're regulating somebody who isn't commerce." Listen at 27.15 - and let me know if you think I'm right.

As I write this letter, I've been listening to Tuesday's arguments on the mandate and Wednesday's arguments on Severability (whether the mandate can be thrown out and the rest of the law retained).  

Here are just four of the many laugh lines I've heard so far:

Paul Clement: "...let's just give Congress a clean slate. If it's so easy to have that other big volume get reenacted, they can do it in a couple of days, it won't be a big deal."

Justice Scalia: "Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?"

Justice Scalia: "Is there any dictionary that gives that - that definition of "essential"? It's very imaginative. Just give me one dictionary."

Justice Kennedy: "Is that the real Congress or a hypothetical Congress?"


Have a look or a listen. It's history being made in our lifetime.

This week's news highlights 10 key arguments from Tuesday's individual mandate hearing. Enjoy.

News to Know:


If Allowed Here, Then Where?

Chief Justice Roberts countered the government's lawyer with, "Well, the same, it seems to me, would be true for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don't know when you're going to need it; you're not sure that you will. But the same is true for health care. You don't know if you're going to need a heart transplant or if you ever will. So there is a market there. To - in some extent, we all participate in it. So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?

States Rights vs. Enumerated Powers

Justice Scalia said, "...the Federal Government is not supposed to be a government that has all powers;'s supposed to be a government of limited powers. And that's what all this questioning has been about. What - what is left? If the government can do this, what, what else can it not do?...An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government."

Fundamental Change

Justice Kennedy underscores: "But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don't have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that's generally the rule. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way."

If All Else Fails, It's a Tax

Justice Ginsburg questioned assertions that if the commerce clause doesn't fit constitutional muster, the mandate works under Congress' taxing authority: "A tax is to raise revenue, tax is a revenue-raising device, and the purpose of this exaction is to get people into the health care risk - risk pool before they need medical care, and so it will be successful. If it doesn't raise any revenue, if it gets people to buy the insurance, that's - that's what this penalty is - this penalty is designed to affect conduct. The conduct is buy health protection, buy health insurance before you have a need for medical care. That's what the penalty is designed to do, not to raise revenue."

Chief Justice Roberts challenged the government's lawyer: "Why didn't Congress call it a tax, then? You're telling me they thought of it as a tax, they defended it on the tax power. Why didn't they say it was a tax...Well, that's the reason. They thought it might be more effective if they called it a penalty."

Paul Clement, attorney for the 26 States reminds the Court:   "...I do think it's worth realizing that the taxing power is limited in the ability to impose direct taxes. And the one thing I think the framers would have clearly identified as a direct tax is a tax on not having something. I mean, the framing generation was divided over whether a tax on carriages was a direct tax or not. Hamilton thought that was a indirect tax; Madison thought it was a direct tax. I have little doubt that both of them would have agreed that a tax on not having a carriage would have clearly been a direct tax. I also think they would have thought it clearly wasn't a valid regulation of the market in carriages."

Katie, Bar the Door!

Paul Clement:  "The question that's a proper question for this Court, though, is whether or not, for the first time ever in our history, Congress also has the power to compel people into commerce, because, it turns out, that would be a very efficient thing for purposes of Congress' optimal regulation of that market...When I'm sitting in my house deciding I'm not to buy a car, I am causing the labor market in Detroit to go south. I am causing maybe somebody to lose their job, and for everybody to have to pay for it under welfare. So the cost shifting that the government tries to uniquely associate with this market, it is everywhere...[O]nce you open the door to compelling people into commerce based on the narrow rationales that exist in this industry, you are not going to be able to stop that process."

Newborn "Buyers"?

Justice Breyer: "And then the question is when you are born, and you don't have insurance, and you will in fact get sick, and you will in fact impose costs, have you perhaps involuntarily - perhaps simply because you are a human being - entered this particular market, which is a market for health care?

Michael Carvin, attorney for the National Association of Independent Business, answers Breyer:  "If being born is entering the market, then I can't think of a more plenary power Congress can have, because that literally means they can regulate every human activity from cradle to grave. I thought that's what distinguished the plenary police power from the very limited commerce power."

The Real Problem

Michael Carvin:  "It is clear that the failure to buy health insurance doesn't affect anyone. Defaulting on your payments to your health care provider does. Congress chose for whatever reason not to regulate the harmful activity of defaulting on your health care provider. They used the 20 percent or whoever among the uninsured as a leverage to regulate the 100 percent of the uninsured."

Dramatic Cost Shift

Michael Carvin:  "One of the issues here is not only that they're compelling us to enter into the marketplace, they're not - they're prohibiting use from buying the only economically sensible product that we would want. Catastrophic insurance. Everyone agrees the only potential problem that a 30-year-old, as he goes from the healthy 70 percent of the population to the unhealthy 5 percent. And yet Congress prohibits anyone over 30 from buying any kind of catastrophic health insurance. And the reason they do that is because they needed this massive subsidy."

Compelling Commerce

Michael Carvin:  "Are you buying the product or is Congress compelling you to buy the product? I can't think of a brighter line. And again, if Congress has the power to compel you to buy this product, then obviously, they have got the power to provide you - to compel you to buy any product, because any purchase is going to benefit commerce, and this Court is never going to second-guess Congress's policy judgments on how important it is this product versus that product...."

Government's Last Stand

General Verrilli, in his concluding statement for the government: "There is no temporal limitation in the Commerce Clause. Everyone subject to this regulation is in or will be in the health care market. They are just being regulated in advance. That's exactly the kind of thing that ought to be left to the judgement of Congress and the democratically accountable branches of government....[T]he provisions of the Constitution needed to be interpreted in a manner that would allow them to be effective in addressing the great crises of human affairs that the Framers could not even envision.  But if there is any doubt about that under the Commerce Clause, then I urge this Court to uphold the minimum coverage provision as an exercise of the taxing power [of Congress]."

News Release of the Week

Obamacare Fails Four Key Tests

St. Paul, Minn. - Today, the Supreme Court will begin hearing arguments on the constitutionality of the Affordable Care Act - or Obamacare - the controversial federal health care overhaul that patient advocates say takes away individual freedoms and, therefore, goes against the tenets of the U.S. Constitution.

One of those patient advocates is Twila Brase, president and co-founder of Citizens' Council for Health Freedom (CCHF), a patient-centered national health policy organization based in St. Paul, Minn.

Over the next three days, the Supreme Court will consider whether the Affordable Care Act, which requires all Americans to purchase health insurance by 2014, is constitutional. A decision is expected by early summer.  Continue reading

Featured Health Freedom Minute:

Obamacare on Trial - Day Three Part 1

Obamacare on Trial, Day Three. The Supreme Court is focusing on the Medicaid mandate and severability. Medicaid may seem a dull subject, but not so. Under Obamacare, 100 million more recipients will be enrolled by 2021, just seven years from now. That will put state taxpayers on the hook for at least $20 billion to $42 billion by the end of the decade.   Continue reading

Twila Brase broadcasts a daily, 60-second radio feature, Health Freedom Minute, which brings health care issues to light for the American public. Health Freedom Minute airs on the entire American Family Radio Network, with more than 150 stations nationwide in addition to Bott Radio Network with over 80 stations nationwide.

Click here to listen to this week's features.

Citizens' Council for Health Freedom
161 St. Anthony Avenue, Ste 923
St. Paul, MN 55103
Phone: 651.646.8935 • Fax: 651.646.0100

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