As the Supreme Court hears oral arguments in the case of Department of Health and Human Services v. Florida, one thing is certain: The Obama administration has diametrically changed its position in arguments before the Supreme Court, revealing supreme hypocrisy and vulnerability.
We desperately needed heath care reform, but this cure is worse than the disease.
Claims were made by the bill’s proponents throughout the Obamacare debate that the mandate to buy government prescribed health insurance was so fundamental to the bill that it could not be omitted. If some Americans could decline the mandate without a massive fine, then the whole health care scheme would not work. We were also told repeatedly that these payments were not taxes but were punitive fees. Now Obama administration officials state it is a tax.
In six separate parts of the bill, Congress asserted the critical nature of the mandate to the overall bill. In court documents, Health and Human Services Secretary Kathleen Sebelius characterized the individual mandate as the linchpin of Obamacare’s statutory scheme.
Although former Solicitor General (now Supreme Court Justice) Elena Kagan still maintains that she shirked her duty by failing to give any advice on Obamacare, the current solicitor general conceded that Congress did not intend for the guaranteed-issue and community-rating provisions in the statute to take effect without the individual mandate.
The president assured us repeatedly that if you like your current health care plan, you can keep it. Now we know that if you liked your health care plan, it is gone or materially changed to comply with the Obama-Pelosi-Reid new prescription.
As this administration constantly changes its fundamental positions, the facts remain unchanged. A presumption of severability applies if Congress includes a severability clause. In Obamacare, however, Congress deliberately removed the severability clause from the House version. Numerous statements of Congressional leaders during debate made it clear that if the mandate falls, so should the entire bill.
Some have argued that all states mandate the purchase of car insurance as a parallel to the health insurance mandate. Courts have dealt with the issue, unequivocally adjudicating that driving on a state’s road is a privilege, not a right. Note also, not a single state requires the purchase of insurance to cover the driver. They only require insurance to cover potential damage to others. Obamacare is the first time the U.S. government has mandated the purchase of a product not for a privilege but simply to live.
Fortunately, before the Supreme Court rules, the president has illustrated that when there is a conflict between religious beliefs and Obamacare decrees, the executive branch decrees take priority. For example, administration orders in health care coverage recently trumped the First Amendment religious rights of those who believe it is wrong to pay into an insurance system where fungible money can be used for abortions or contraceptives.
This override of constitutional rights sounds alarms for other potential violations of the First, Fourth and Fifth amendments, as well as creating “equal protection” issues. Obamacare’s threat to our liberties cannot be overstated. If the federal government can mandate health insurance of a specific type alleging the greatest good for the greatest number of people, then previously protected activities must yield to the new Obamacare trump over constitutional rights. Religious and personal beliefs of all, including justices on this case, will have to yield to the tyranny of the majority as its whims ebb and flow under the guise of health care if this law is upheld.
If the Supreme Court decides that the federal government has the right to dictate health insurance requirements and policies, then the federal government will have the duty to dictate how we live so as to avoid unjust expenses on the rest of the insured in America. The thought of a conservative president with that same power should scare liberals into joining conservatives in proclaiming the constitutional overreach of Obamacare.
Besides the mandate, Obamacare tells insurers what provisions must be in all policies. Under Obamacare, activities that are potentially hazardous or could cause increased medical costs must be stopped, fined or taxed whenever a federal bureaucrat says so. So if Obamacare is upheld by the Supreme Court in whole or in part, then the federal government’s early override of constitutionally expressed religious rights for the purported greatest good of Obamacare’s insureds must stand.
Consider, however, that a different president could easily assert that he or she has the same authority to override unstated privacy rights just as effectively as this administration has overridden expressly stated religious rights, so long as it saves money for the greatest number of people.
The slope created by a federal right to dictate health insurance is not slippery, it is a cliff. The overriding of liberties, once begun, will know no obvious bounds.
Rep. Louie Gohmert (R-Texas) is vice chairman of the Judiciary Subcommittee on Crime, Terrorism and Homeland Security. Prior to being elected to Congress, Gohmert was elected to three terms as a district judge in Smith County, Texas, and also served as chief justice of Texas’ 12th Court of Appeals.