Tuesday, March 27, 2012

No Constitutional Issue in the Health Care Act? Ask Dick Armey!

What's all the fuss about the constitutionality of the mandate in the Affordable Health Care Act?

Don't we already have a "mandated" health insurance program? Each paycheck is docked a payment into Medicare whether that worker likes it or not or wants the coverage in retirement. So mandated is this program that the U.S. Court of Appeals in D.C. ruled in February against a group who wanted to renounce their Medicare benefits because their private insurance paid better benefits but would not pay if the insured were covered by Medicare.

So mandatory is the Medicare program that you can't walk away from it, says the D.C. court. Once you qualify for its benefits, you don't have to use them but you can't renounce your eligibility for them. (Although not addressed in the D.C. appellate case, the same is true of Social Security. Not only MUST you pay into the system but you cannot renounce your benefits even if doing so would qualify you for a better situation. I know because I tried this tactic in a desperate attempt to qualify my sick husband for Medicaid prescription coverage before such was enacted through Medicare Part D.)

Both Medicare and Social Security have mandatory features. That's a hell of a lot of mandatoriness!

The mandatory nature of Medicare was upheld on February 7 of this year in the federal case of Hall v. Sebelius. I haven't read the pleadings but the text of the ruling indicates that the Constitutional issue was not raised in this case.

That is very significant.


Because DICK ARMEY was a PLAINTIFF in the suit. Armey, as you may recall, is the leader of the Tea Party group, Freedom Works. He's also a former GOP House majority leader. Who would be more likely than Armey to argue a federal program is unconstitutional?

So why didn't he?

Because he had a PERSONAL stake in this lawsuit and would be PERSONALLY better off if he won. Therefore, he wasn't going to mess around with a frivolous legal argument about constitutionality  and thereby undercut the credibility of his other legal arguments. No smart lawyer does that.

The present case before the U.S. Supreme Court re the Affordable Health Care Act is, therefore, a deliberate and consciously-deceptive dog-and-pony show, staged by the GOP states' attorneys general for the benefit of their conservative constituents and the furtherance of the GOP anti-Obama campaign. Armey's disbelief in the non-constitutional argument is undoubtedly shared by the 26 states' attorneys general who have brought the Supreme Court case. They may be foolish GOPers, but they are likely not fools as attorneys. In their heart of hearts, like Armey, they know the constitutional argument is a crock.

Other evidence of the dog-and-pony nature of this lawsuit is the map showing which states have filed against the Affordable Health Care Act. They are all in the South and the conservative mountain belt, plus Indiana (which is the South) and Washington State. Normally Washington State tends to be Democratic and rather liberal, but the Republican AG there, Rob McKenna, is running for governor this year and his decision to join the other 25 states was undoubtedly a political gambit to fire up his base. Further, ALL of the AGs are Republicans, just like McKenna. This is why Wisconsin and New Hampshire, purple though they be, are also on board the Supreme Court lawsuit.

This is political cynicism at its worst:  Using the Supreme Court to advance your political cause when, as an attorney sworn to uphold the Constitution, you knowingly file a baseless suit that distorts and misrepresents that Constitution.

The only thing worse than this is if the Supreme Court bites. There is no solid legal argument for striking down the health insurance mandate. It is NOT, in light of the mandatory nature of Medicare and Social Insurance, an "unprecedented" exercise of Congressional power, as the 26 AGs claim.

Will the Supreme Court follow well-established legal precedent or play politics and enforce a reactionary GOP anti-government philosophy? After its decision in Bush v. Gore in 2000, when it stopped the vote count in Florida and gave away the presidency to the loser, anything can happen.

Another unanswered question:  why didn't the news media pay any attention to the case of Sebelius v. Hall? And Armey's participation? And his NOT raising the constitutional issue?

As Fats Waller would say, "One never knows, do one?"


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