Blog and News

D4PC "Morning Rounds" Tuesday, June 26, 2012 

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Welcome to D4PC "Morning Rounds", your daily review of healthcare news and information from Washington, DC and around the nation. These briefings will keep you up to date on recent developments and our effort to replace the PPACA with patient-centered reforms that protect the doctor-patient relationship and preserve individual freedom of choice. 

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There have been two noteworthy developments related to healthcare litigation over the past few days. 

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Welcome to D4PC "Morning Rounds", your daily review of healthcare news and information from Washington, DC and around the nation. These briefings will keep you up to date on recent developments and our effort to replace the PPACA with patient-centered reforms that protect the doctor-patient relationship and preserve individual freedom of choice.  

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In a frantic rush to ram the President's healthcare takeover into law, Obama administration officials omitted a "severability" clause into the legislative language which means if the Supreme Court finds the individual mandate unconstitutional, then legally, the entire law should collapse since congress can't remove the unconstitutional segment and still uphold the law. 

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Welcome to D4PC "Morning Rounds", your daily review of healthcare news and information from Washington, DC and around the nation. These briefings will keep you up to date on recent developments and our effort to replace the PPACA with patient-centered reforms that protect the doctor-patient relationship and preserve individual freedom of choice. 

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Docs4PatientCare's president, Dr. Hal Scherz, issued the following statement in response to the 11th Circuit Court of Appeals decision on Friday that found that the individual mandate contained in ObamaCare unconstitutional:

"The decision Friday from the 11th Circuit court in Atlanta fell short of our hope that the mandate would be found unconstitutional AND that the entire healthcare law would need to be repealed because it could not stand without the mandate.

Practically speaking, the healthcare law will fail on its own merits without the unconstitutional mandate keeping it afloat. It will be up to the Supreme Court now to drive a stake through the heart of this monstrous law, and hopefully soon enough to prevent further damage caused already by it."

The full decision of the court can be found here.  

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Robert A. Levy, the Chairman of the Cato Institute has a new posting on SCOTUS blog (a blog about the cases and happenings at the Supreme Court of the United States) that pulls apart the "individual mandate" as not having any relation to "interstate commerce" and which fails to meet the Constitution's "necessary and proper" clause.   

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David B. Rivkin, Jr. and Lee A. Casey have an excellent commentary on why the Obama Administration is having trouble in the courts. They suggest that the Administration has consistently changed their arguments defending the law as the previous argument is exposed for its constitutionally suspect nature.

They write that:

In enacting the individual mandate, Congress purported to rely on its power to regulate interstate commerce and, in the process, reach individuals who are already engaged in that commerce. But the individual mandate does not regulate commerce, interstate or otherwise. It simply decrees that all Americans, unless specially exempted, must have a congressionally prescribed level of health-insurance coverage regardless of any economic activity in which they may be engaged. Requiring individuals to act simply because they exist is the defining aspect of the general police power that Congress lacks.

The government's lawyers, recognizing this fundamental constitutional reality, have tried to rewrite the law so that it can withstand judicial scrutiny. They have claimed that the individual mandate is a tax, despite common sense, judicial precedent, and numerous statements to the contrary by the law's sponsors and President Obama. They have also argued that ObamaCare does not actually impose a mandate on inactive citizens, but rather regulates how individuals will pay for their health care. As Solicitor General Neal Katyal recently put it, the mandate is "about failure to pay, not failure to buy." This is plainly wrong. The law requires that everyone have health insurance—without regard to whether or how they buy or pay for medical services.

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Jennifer Rubin of The Washington Post's Opinion section delves into the issue of cost-shifting and the role this issue has played in the appeal of the Florida multi-state lawsuit. During oral arguments before the 11th Circuit, the government argued the law was constitutional and the individual mandate was necessary to remedy the alleged burden placed on the healthcare system by cost-shifting.

Rubin first points out that: "As a preliminary matter, this sort of rationale is inappropriate for constitutional analysis. If the Constitution prohibits the government from forcing you to buy something you don’t want, why does a policy argument (cost-shifting) suddenly bestow constitutional legitimacy on the individual mandate?"

Rubin then points out that not only is the basis for the individual mandate on shaky constitutional ground but it is also unsupported by the facts. She cites a Yuval Levin June 9, 2011 post on National Review Online and a Wall Street Journal article by John F. Cogan, R. Glenn Hubbard and Daniel Kessler that demonstrates that Congress relied, as Rubin says, "on sloppy, flawed studies to come up with the cost-shifting rationale."

Read the full article here... 

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From the Los Angeles Times...

"After nearly three hours of argument Wednesday, the three-judge panel of the 11th Circuit Court of Appeals seemed prepared to declare at least part of last year's law unconstitutional.

"The law's requirement that nearly everyone buy health insurance by
2014 is the question at the heart of the constitutional challenge. The argument that the mandate exceeds Congress' power initially was waved aside by many legal commentators, but it has now sharply divided the federal courts."

Read the full article here... 

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"New Document Suggests Supreme Court Justice Elena Kagan Involved With Crafting Legal Defense of Obamacare"

If Kagan is shown to have worked on constructing the PPACA, she will have to recuse herself from judging on the case when it gets to the Supreme Court. This will significantly effect the balance of opinions. 

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The American Healthcare Education Coalition has posted a concise summary of the current court case challenging PPACA in the 6th Circuit court in Cincinnati:

"As the June 1 hearing date for the oral arguments nears, the Appeals Court sent a letter to the parties on May 12 asking them to file a document that details whether the plaintiffs have standing, whether the case is ripe for hearing, and whether the plaintiffs' case involves a facial challenge to ObamaCare. The deadline for the parties response is May 23, 2011. The court's specific questions suggest that the court may be looking for avenues to dismiss this case shorting of deciding the case on the merits."

Read the full summary here. 

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From The Daily Caller...

Emails between Supreme Court Justice Elena Kagan and members of the Obama Administration reveal she was more involved with President Obama's health-care law than was disclosed previously. The documents likely will lead to a revival of questions about whether the Kagan should recuse herself from future cases.

Read the full article here. 

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"Making Health Insurance More Accessible", The Heritage Foundation

Alternative proposals to make health insurance more accessible and affordable while minimizing federal control and encouraging individual freedom of choice. 

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"My Cousin Barack Obama and Our Obamacare Family Feud"

This physician, who happens to be a cousin of the president, has written extensively on the new healthcare reform law. Unfortunately, Dr. Milton Wolf's diagnosis and prognosis for Obamacare is not a good one for the president and specifically, for the American people. 

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From USA Today...

"Three federal appeals court judges, all appointed by Democratic presidents, will hear arguments Tuesday on the constitutionality of a new federal health care law that requires most Americans to obtain insurance.

"The hearing -- marking the first appellate review of the law that is the centerpiece of President Obama's domestic agenda -- was scheduled months ago. But only early today, as part of longstanding custom, did the U.S. Court of Appeals for the Fourth Circuit here reveal the names of the three judges on the panel taking up the case."

Continue reading... 

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Researched by Beth Haynes, MD

On Monday(4/11/11), the Democrat Missouri Attorney General filed an amicus brief to the federal appeals court addressing Florida v. HHS, but did not join the suit. Attny General Chris Koster agrees with Judges Vinson and Hudson (VA v. Sebelius) that the individual mandate to purchase health insurance exceeds Congress' constitutional powers and this provision can be severed from the rest of the legislation. A statewide referendum in Missouri last August declaring the mandate illegal was approved 3:1 by voters, while the state legislature passed nonbinding resolutions urging the Atty Gen to join the 26 other states suing the US Government over the constitutionality of the individual mandate. 

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