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Judge in VA strikes down federal health care law
Old 12-13-2010, 06:32 PM   #1
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Judge in VA strikes down federal health care law

We all knew this would be contested, but I never would have guessed a Federal judge would actually strike it down! I assume they all believe it won't be the end game, it's far from over...
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RICHMOND, Va. — A federal judge declared the foundation of President Barack Obama's health care law unconstitutional Monday, ruling that the government cannot require Americans to purchase insurance. The case is expected to end up at the Supreme Court.
Judge in Va. strikes down federal health care law | General Headlines | Comcast.net
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Old 12-13-2010, 07:14 PM   #2
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Old 12-13-2010, 07:15 PM   #3
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Originally Posted by Midpack View Post
We all knew this would be contested, but I never would have guessed a Federal judge would actually strike it down! I assume they all believe it won't be the end game, it's far from over...

Judge in Va. strikes down federal health care law | General Headlines | Comcast.net
There are so many lawsuits against the law, and the case they make is far from weak, that a few are bound to be successful. It's a foregone conclusion that this will go to the SCOTUS.

The CATO institute is unhappy with the VA ruling--because it didn't go far enough in their view.
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This ruling’s shortcoming is that it did not overturn the entire law. Anyone familiar with ObamaCare knows that Congress would not have approved any of its major provisions absent the individual mandate. The compulsion contained in the individual mandate was the main reason that most Democrats voted in favor of the law. Yet the law still passed Congress by the narrowest of all margins — by one vote, in the dead of night, on Christmas Eve — and required Herculean legislative maneuvering to overcome nine months of solid public opposition. The fact that Congress did not provide for a “severability clause” indicates that lawmakers viewed the law as one measure.
The law is being challenged on other grounds, too. The thing that makes it so appealing to some (its sweeping nature and unprecedented mandates) is the thing that is causing the constitutional problems.

We'll see.
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Old 12-13-2010, 07:22 PM   #4
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Hmmm...Why do I need to have car insurance?
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Old 12-13-2010, 07:23 PM   #5
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Hmmm...Why do I need to have car insurance?

It's a priviledge to be able to drive on gumment owned streets.
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Old 12-13-2010, 07:27 PM   #6
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Hmmm...Why do I need to have car insurance?
Due to state (not federal) laws that make insurance coverage (or bond) mandatory before you exercise the privilege (not the right) to drive your car on public (no impact on private) roads. There's zero applicability to the health care insurance situation, where people are being compelled to purchase something just because they are alive--not to exercise a privilege.
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Old 12-13-2010, 07:28 PM   #7
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There are so many lawsuits against the law, and the case they make is far from weak, that a few are bound to be successful. It's a foregone conclusion that this will go to the SCOTUS.

It's interesting that the law does not include a severability provision, so, technically (according to what I've read), if any of it is found unconstitutional, then the whole thing is thrown out. Some people involved with the drafting of the law claim this was an oversight, others note tyhat there's no way it would have garnered the necessary votes if sucha clause had been included. Some of thse who supported the law felt so strongly about the individual mandate that they would not have voted for the law if this provision was subject to being individually stripped out by the SCOTUS.

The law is being challenged on other grounds, too. The thing that makes it so appealing to some (it's sweeping nature) is the thing that is casing the constitutional problems.

We'll see.
Yes, several judges have also found no problem. Of something like 20 cases, 12 were dismissed. In two cases, federal judges upheld the law.

The law really should not be severable. If the requirement to buy insurance is removed then the rest is a big mess. Practically, you can't require insurers to ignore preexisting conditions unless you also require people to buy insurance.
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Old 12-13-2010, 07:42 PM   #8
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The law really should not be severable. If the requirement to buy insurance is removed then the rest is a big mess. Practically, you can't require insurers to ignore preexisting conditions unless you also require people to buy insurance.
Would backers of the present law really prefer that the whole thing be thrown out if the individual mandate is found unconstitutional? Couldn't they accept "universal access," with strong programs in place to encourage people to be covered, and with all the subsidies still in place from the present law? The "teeth" (to protect the solvency of the whole program): After the start of the program, anyone having lapsed insurance would remain uncovered for a fairly long exclusionary period (3 years?) after applying for coverage (unless the person is found to be mentally incompetent, etc). Yes, it would be very bad for some individuals, but (as proponents would surely point out) it would be no worse than the situation right now for many folks.

Maybe there could be "sanctions" short of the presently envisioned fines to get people to comply. For example: Student loans aren't a "right", and the government is crowding out the private lenders, so getting a govt student loan is more important to many students than in the past. If you don't have insurance, no loan ("We want you to pay back this loan, which won't be possible if you are dead. Get medical insurance.") Public assistance isn't a right guaranteed in the Constitution, and health insurance would be free for the indigent under the current law. So, sign up for insurance or no food stamps, Section 8 housing vouchers, cash assistance, etc.

Should failure to carry medical insurance affect one's credit rating? I'd sure think it should. I won't pay off my credit card debt if bankrupted by medical payments, or killed by an untreated disease. That knock to the credit score (and all it entails) might induce a lot of people not to go bare.

Though I'd much prefer to just start over on this whole effort, I would think many who favor the current legislation would prefer a "work around" to allow the law to stand even without the individual mandate.
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Old 12-13-2010, 07:51 PM   #9
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For those who say it is not constitutional for the federal government to require an individual to obtain healthcare insurance, I have a question.

Is it then also not constitutional to require a hospital to accept an injured person to ER if they cannot provide payment? (I am actually not sure if they are required to provided emergency treatment, but I am at least under the impression they are). How can the federal government require a hospital to do this? Is it in the constitution? Why has it not been challenged in court?

It would be a pity if we got to the point where you had to provide proof of insurance or a valid credit card before the ambulance team would pick you up.
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Old 12-13-2010, 07:51 PM   #10
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If the requirement to buy insurance is removed then the rest is a big mess. Practically, you can't require insurers to ignore preexisting conditions unless you also require people to buy insurance.
I agree. The only way to achieve anything approaching universal coverage at a reasonable cost is to have everyone in the system. If the Supreme Court upholds the lower court ruling, this will require either collecting the premiums through taxation and providing the insurance to everyone, along the lines of the Wyden plan; or taking the approach that everyone is given a window of opportunity to buy in with providers having the right to deny treatment to those who choose not to buy in unless they can pay for it out of their own pockets. Otherwise people will game the system.
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Old 12-13-2010, 08:15 PM   #11
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Is it then also not constitutional to require a hospital to accept an injured person to ER if they cannot provide payment? (I am actually not sure if they are required to provided emergency treatment, but I am at least under the impression they are). How can the federal government require a hospital to do this?
In 1986, Congress passed the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. Sec. 1395dd. It requires ERs to screen individuals and to stabilize them (not necessarily to fully treat them) regardless of their ability to pay.

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Is it in the constitution? Why has it not been challenged in court?
I'm sure it has been challenged in court, but you could look up the cases by Googling the law's name.
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Old 12-13-2010, 08:21 PM   #12
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In 1986, Congress passed the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. Sec. 1395dd. It requires ERs to screen individuals and to stabilize them (not necessarily to fully treat them) regardless of their ability to pay.


I'm sure it has been challenged in court, but you could look up the cases by Googling the law's name.
Hmm, so someone in Virginia should bring this particular Act up to the judge and ask him to rule against it. When he refuses, they should ask him how can he uphold this which is not in the constitution while striking down the requirement for healthcare insurance. I know the world doesn't work this way and nobody would actually bring this case before the judge, but it does show how unequally the law is applied.
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Old 12-13-2010, 08:32 PM   #13
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Hmm, so someone in Virginia should bring this particular Act up to the judge and ask him to rule against it. When he refuses, they should ask him how can he uphold this which is not in the constitution while striking down the requirement for healthcare insurance. I know the world doesn't work this way and nobody would actually bring this case before the judge, but it does show how unequally the law is applied.
I'm not quite following your point. Judge Hudson ruled that Congress does not have the authority to compel individuals to engage in private commerce. The law you are referring to is very different, because it mandates that institutions (e.g. hospitals) cannot deny treatment. Now, while I also see this as being a problem (as it constitutes a "taking" of private assets without compensation), I don't see it as nearly the constitutional problem that the individual mandate in the health care law poses.

Here's a portion of Judge Hudson's ruling, the whole thing is 80+ pages:
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Because an individual's personal decision to purchase—or decline to purchase—health insurance from a private provider is beyond the historical reach of the Commerce Clause, the Necessary and Proper Clause does not provide a safe sanctuary. This clause grants Congress broad authority to pass laws in furtherance of its constitutionally enumerated powers. This authority may only be constitutionally deployed when tethered to a lawful exercise of an enumerated power. . . . The Minimum Essential Coverage Provision is neither within the letter nor the spirit of the Constitution. Therefore, the Necessary and Proper Clause may not be employed to implement this affirmative duty to engage in private commerce.
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Old 12-13-2010, 08:40 PM   #14
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For those who say it is not constitutional for the federal government to require an individual to obtain healthcare insurance, I have a question.
You are linking two unrelated entities and issues.
The above is an individual being required to buy something just for being a citizen.


The one below is a business in the health care field that is taking money from the Federal Gov't via Medicare/Medicade and other programs.

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Is it then also not constitutional to require a hospital to accept an injured person to ER if they cannot provide payment? (I am actually not sure if they are required to provided emergency treatment, but I am at least under the impression they are). How can the federal government require a hospital to do this? Is it in the constitution? Why has it not been challenged in court?

It would be a pity if we got to the point where you had to provide proof of insurance or a valid credit card before the ambulance team would pick you up.
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Old 12-13-2010, 08:44 PM   #15
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Yeah, you are right actually. The judge approached it from the point that they did not have the grounds to require the purchase of medical insurance based on the interstate commerce laws.

Well, this is all very simply solved, constitutionally. Tax everyone a certain amount extra over current income tax rates and then have a special tax credit for purchasing healthcare insurance. Same effect, but now everyone is happy because the government is not forcing you to buy healthcare insurance. The IRS is especially happy because more work for them equals more job security. A win win.
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Old 12-13-2010, 08:55 PM   #16
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Well, this is all very simply solved, constitutionally. Tax everyone a certain amount extra over current income tax rates and then have a special tax credit for purchasing healthcare insurance.
I don't think that would pass muster, either, as it's not too much different from the way the law, as written, would actually function. The law provides for a penalty tax for those who don't buy insurance. I don't know if penalizing everyone and then giving a credit to those who behave according to the dictates of Congress would be seen as materially different, especially if everything were enacted so close together. Plus, as a practical matter, it would require a re-write of the law, and it's unlikely anything like the present law could get through the 112th Congress that will soon be in session.
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Old 12-13-2010, 09:01 PM   #17
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I don't think that would pass muster, either, as it's not too much different from the way the law, as written, would actually function. The law provides for a penalty tax for those who don't buy insurance. I don't know if penalizing everyone and then giving a credit to those who behave according to the dictates of Congress would be seen as materially different, especially if everything were enacted so close together. Plus, as a practical matter, it would require a re-write of the law, and it's unlikely anything like the present law could get through the 112th Congress that will soon be in session.
Well crapola. I was really looking foward to having others pay my healthcare costs in ER through heavy subsidies for purchasing insurance, especially in the years when we withdraw from our Roth or interest from our municipal bonds. I also thought getting rid of pre-existing conditions denials would help us too. Having to pay $20,000/year for medical coverage will make it impossible to ER on a lean portfolio, even if you are frugal elsewhere.
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Old 12-13-2010, 09:02 PM   #18
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Old 12-13-2010, 09:06 PM   #19
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Well, this is all very simply solved, constitutionally. Tax everyone a certain amount extra over current income tax rates and then have a special tax credit for purchasing healthcare insurance. Same effect...
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I don't think that would pass muster, either, as it's not too much different from the way the law, as written, would actually function. The law provides for a penalty tax for those who don't buy insurance. I don't know if penalizing everyone and then giving a credit to those who behave according to the dictates of Congress would be seen as materially different, especially if everything were enacted so close together.
I understand both views, and it's tough for me to guess where the law may come down.


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Plus, as a practical matter, it would require a re-write of the law, and it's unlikely anything like the present law could get through the 112th Congress that will soon be in session.
Yes, that is a pickle for the supporters of the bill. Quite a pickle indeed.

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Old 12-13-2010, 09:23 PM   #20
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