How to undo ObamaCare? A problem of philosophy

Posted by: Phineas on April 2, 2012 at 3:23 pm

**Posted by Phineas

There’s an interesting article at The Weekly Standard, by Jeffrey Anderson, looking at the difficulties the Supreme Court faces as it decides what to do about ObamaCare. As Anderson describes it, there are five choices:

  1. Upholding the law in its entirety;
  2. Minimally overturning it by striking down just the individual mandate;
  3. Go a little further by overturning the mandate, plus the closely related “community rating” and “guaranteed issue” clauses;
  4. Go through the law page by page deciding which part survives and which is overturned;
  5. Voiding the whole law.

Obviously the first is unacceptable to anyone who cares a whit about the Constitution and the principles on which it was founded. It’s also, thankfully, the least likely result if the questions asked by the Justices during the three days of the hearings are any indication.

But options 2-5 pose problems for conservative justice inclined to overturn the mandate: When dealing with a law this huge in both size and scope, which approach best hews to the principles of judicial restraint/judicial modesty, while still adhering to the Constitution? Options 2-4 pose a couple of problems. The first is that, by picking and choosing among the various parts of the bill, the Court may well leave behind a clanking wreck that does even more harm. The other is that, in doing so, especially in the absence of a severability clause (1), the COurt would wind up acting like an unelected super-legislature and usurping the roll of the elected Congress, something that should give any constitutionalist serious pause. As Anderson points out, none of these choices (except the first) are clear-cut and without question.

My own preference to to void the whole bill; it cannot work without the individual mandate, which itself is clearly unconstitutional. And policy decisions about health-care reform, which is what choices 2-4 amount to, are the duty of the elected legislature, not the Court.

But even these arguments raise a deeper issue; the Court would not find itself confronting these issues if not for the progressive penchant for comprehensive legislation, one bill “to bind them all.” Anderson sums it up neatly:

But we shouldn’t miss the larger point here. The predicament in which the Court finds itself is plainly a product of President Obama and his party’s preference for massive, unwieldy, impossibly complicated legislation—the kind that you have to pass first to “find out what is in it.” Such legislation, as the oral arguments revealed, does not fit within our system of limited government. That’s because, as Charles Kesler has observed, Obamacare violates the basic notion of law in a free society. Kesler writes, “Sometimes the most obvious derangements of our politics are staring us in the face but we don’t see them”—like “calling this voluminous monstrosity a bill. Can you have a bill, a single law, that is almost 3,000 pages long? In the old days, that would have constituted a whole code of laws.”

In other words, it’s not just Obamacare that must go, but rather the whole liberal and progressive notion of “comprehensive” legislation for a nation of 300 million people. Obamacare is the epitome of that confidence in central planning by experts. Whether the Court strikes down Obamacare, or President Obama is defeated and Obamacare is repealed, or the Court strikes down part of Obamacare and a new president and Congress repeal the rest, last week’s historic hearings have made one thing clearer than ever: Attempts at “comprehensive” legislation compromise the very notion of limited government, in which the people’s representatives try to accomplish attainable goals in a free society. Comprehensive legislation is what happens when you have unlimited government. It is that effort, and the attitude underlying it, that need to be repudiated—by the Court and, more important, by the voters this November.

(Emphasis added.)

And that points a way forward for conservatives in the coming months: not only concentrating on sending Obama off into retirement , but electing as many limited-government conservatives as possible to Congress who understand a principle related to judicial modesty, but rarely mentioned — legislative modesty. (2) That is, recognizing what the federal government’s proper role is and doing only enough to fulfill that role, not trying to solve every problem (3) that comes down the pike when they’re better left to the states or the people.

Right now, we’re seeing what havoc  legislative arrogance can wreak. It’s time to put a stop to it before the harm is incurable. As Marco Rubio said, “If we don’t win this election in November — and we get four more years of Barack Obama — I don’t know what that means … But I know it ain’t good.”

He was speaking of Obama, of course, but it applies as much to the progressive influence on Congress.

(1) Severability is a clause Congress usually inserts to allow the courts to strike down provisions of a law without having to kill the whole thing. There was such a clause in an early draft of the bill, but it was removed, indicating the Democrats were betting the Court wouldn’t strike down the whole law because there was no severability. I’m beginning to think they’ll regret that.
(2) Hence Operation Counterwight.
(3) Or any not-problem, something that isn’t their business, but lets them pander to the voters. Such as the BCS.

(Crossposted at Public Secrets)

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12 Responses to “How to undo ObamaCare? A problem of philosophy”


  1. Jay says:

    My hope is that we at least get the mandate struck down for the following reasons:

    1. If this is upheld it means the govt can ostensibly force individuals to buy or do anything under the commerce clause which is worse than any 1 election.
    2. Having the mandate struck down will be humiliating for the Democrats and Obama, no matter how they try to spin it.
    3. Removing the mandate is like taking a knife in the heart of the bill. Even if a lot of the rest remains, it starts gushing blood and will be easier to remove in my opinion. I know others have disagreed on this point. But I think without the mandate projections will go through the roof from even non-partisan groups like the CBO which will be pretty damning.

    Obviously I would like the whole bill struck down. It feels like that won’t happen, even if we think the facts are on our side, but hopefully the mandate will fall.

  2. Carlos says:

    A few lifetimes ago, when I first started studying the Building Codes, the structural portions were confined to a single 5″ x 7″ book of approx. 200 pages, which also included the mechanical section of the codes. Not long after that the commercial and residential code portions were split into two separate codes, with each being three volumes of approx. 200 8-1/2″ x 11″ pages each, and the Mechanical Code was put into a separate stand-alone volume.

    Basically what happened then and what continues to happen is that the educated idiots are like any other modern-day lawmakers, trying to codify every possible situation so there will be no question about the scope or intent of the law because it’s covered by text.

    Problem is (as they’ve discovered in baseball) there is absolutely no way to cover every possible situation or contingency; all such legislation (whether building codes, baseball or brainless legalese) does is give an inordinate amount of power to petty bureaucrats, further restricting the freedoms promised in the Constitution.

    ObamaCare is simply one of the worst examples of such legislation. The progfrogs on the court are set, willing to die in flames for their overreach. I’m afraid one or two of the more conservative members will recognize the unconstitutionality of the mandate, but won’t have the guts to throw the entire thing out, and Duh-1, with the aid of such mental giants as Dingy and Chucky Cheesy will try to rescue it, calling the mandate something else and demanding that it be pushed through again.

    Progfrog mantra: If at first we can’t fool enough people to get what we want, change the language, call it something else and see if that fools them; repeat as often as necessary to crush the will of the people.

  3. Tom TB says:

    I only know of three things I am mandated to do by the Federal Government: Pay income taxes, register for the draft whether I’ll be called or not, and serve on jury duty when called. Other than that, I can be a happy hobo. When did my body become interstate commerce forcing me to buy a government product?

  4. Mitch says:

    We are already, for all intents and purposes, a Communist Nation. Once you get your arms around that factoid, we can perhaps look for a solution. When a Healthcare bill provides, among other things, a Federal tax on every property sold in the United States, you begin to get the idea this is not really a Healthcare bill.

  5. Drew the Infidel says:

    In relation to TomTB’s observation: The false narrative is the GOP “war on women” when the real story is the Commiecrats’ war on all of us.

  6. Marshall Art says:

    I don’t see option five as a problem. It would be the most prudent given the fact that no one knows all of what is in the bill.

    One issue I’ve heard brought up by proponents of this monstrosity is that the right wing has no alternative. I never felt we needed a conservative alternative. This was supposed to all about affordability. But the high costs of health care and health insurance could have been easily addressed without a bill like this. There are only a handful of reasons why getting care is so expensive that such a bill was never necessary.

    They could have begun with allowing the purchase of insurance across state lines to provoke more competition which lowers costs. They could have reduced the gov’t interference (regulations) that led to coverage for that which an individual might have no need. They could have promoted the truth that insurance was never meant to cover that which is already happening, but only supposed to be a safety net to protect one against catastrophic occurrences that MIGHT happen. Addressing tort reform and malpractice law would have resulted in fewer unnecessary tests and procedures enacted to prevent later lawsuits should the patient not pull through. These and a few others could have been addressed and costs would have dropped naturally by doing so.

    Not to mention reversing all that has led to business not wanting to expand and hire people who could then afford to have insurance.

  7. Dana says:

    There is a philosophical problem which has not been addressed: the question of whether it is the proper duty of the federal government to insure that everyone has health care coverage or not. The Republicans have campaigned, for the most part, on “repeal and replace.” Me, I’d like to see just plain repeal, and an end to the repugnant notion that the government should be responsible for taking care of individuals.

  8. Carlos says:

    Technically, I guess not everyone is insured, but I would defy anyone in the entire country to go into an emergency room anywhere in the United States, declare poverty and not receive at least a minimum of treatment at the state’s expense.

    Of course, in the course of questioning, when the fact was brought up to the “enlightened Latina,” she couldn’t believe it. She probably still doesn’t because that just doesn’t fit with the echo-chamber narrative she knows all too well.

    I’m with Dana, we need repeal only, not repeal and replace. That would mean the guvmint had it’s cost-causing grubby hands more involved than it does now and we don’t need that.

  9. Great White Rat says:

    I’m with Marshall and Dana here. Throw the whole thing out. If the libs want to start from scratch, let them go for it, and this time with no closed-door drafting sessions and bribes to strategically placed Democrat senators (I mean you, Nelson and Landrieu) to get it passed.

    I’ve never seen the libs give a good explanation for one thing that’s occurred to me: if Obamacare is not only constitutional but a wonderful plan that provides top care for everyone and cuts costs as they claim, why does every Obama-supporting union, corporation, and state want waivers from abiding by it? And why is the administration granting them?

  10. mitch says:

    The Great White Rat makes a point. If this is just such a wonderful thing that improves everyone’s lives, why are all the people in control exempted? Why doesn’t my plan look just like my Congressman’s? Why did the SEIU not sign on to something they claimed was better than fresh bread with butter? I think we all know why.

    I’m not the person I was one year ago. Even my family says so. I am angry. As angry as I have ever been. I have spent my whole life in this country. Most of that time, I was happy. How could a person not be happy living in Freedom? Because of this Impostor of a President, we no longer have that guarantee of Freedom.

    I’m new to this blog. I don’t have any friends here. I have to be careful what I say. But this President scares me. He scares the hell out of me. I hope he scares you too. I have never seen this country in such a bad state. And most people are watching television. God help us.

  11. Phineas says:

    I have never seen this country in such a bad state. And most people are watching television. God help us.

    I’ve lived through the 60s race riots, students being shot dead by National Guard, governors declaring martial law in their cities, a domestic terrorism campaign (lead by, among others, the current president’s BFF), a president resigning in disgrace, seemingly endless stagflation, the seeming inexorable advance of communism across the globe thanks to American weakness, and a president who looked down on his own people.

    And then came November, 1980.

    I’m not saying the Republican nominee (almost surely Romney) is another Reagan, nor that another Reagan is even on the horizon. Because Reagan would not have succeeded without one key ingredient: the American people, who finally had had enough.

    Another one of those moments, perhaps even another “Great Awakening,” is coming. Maybe not in one fell swoop; great changes take several elections — 2012, 2016, 2020. But it’s coming. You felt the foreshock in 2010.

    Things aren’t nearly as bad as they were then, but in some ways they’re more dangerous because the danger is more subtle. The key is that we have to keep voting and convincing others to vote our way, and not give in to a despairing nihilism.

  12. mitch says:

    Phineas , I understand your comment. I understand it completely. i have suffered despair many times in my life. Somehow, I always managed to defeat it and find a way to go on and continue the fight. But this man who was sent here by the Devil Himself, has a different agenda. He has a liquid tongue that speaks promises to the masses. The masses of the poor, who think the rest of us owe them a living. They outnumber us greatly. He appeals to them. He speaks their language, even though he despises them personally. This man has all the personal attributes of becoming a dictator. He only needs the chance. A large part of our population right now is willing to give him that chance. I also have a problem with the voting part that you mention. Electronic voting is the best gift we ever gave to the Liberals. It simply opened the door to a whole new world of possibilities . One we will live to regret.