by Art Kelly
1. Both the U.S. Department of Justice and the insurance industry now admit that, if the requirement in Obamacare for everyone to purchase health insurance is declared unconstitutional, some other portions of the law must also be invalidated.
A recent issue of this newsletter reported that a panel of the 11th Circuit Court of Appeals ruled that Obamacare's Minimum Essential Coverage Provision, which requires each person to buy health insurance, is unconstitutional.
However, the court upheld the rest of Obamacare.
The bill that passed, HR 3590, now Public Law No: 111-148, lacked a routine severance clause, stating that, if one portion of the law is declared unconstitutional, the other portions are unaffected. Thus, conservatives have hoped that, if the individual mandate were declared unconstitutional, the entire law would be voided.
However, another previous issue of this newsletter, reported on a decision of a federal district court that did, in fact, declare the individual mandate to be unconstitutional, but said the rest of law was all right. The judge cited several precedents in which courts stated that "the normal rule is that partial, rather than facial, invalidation is the required course."
Now, the Obama Administration and America's Health Insurance Plans (AHIP) have both filed briefs with the U.S. Supreme Court stating that, if the individual mandate is found to be unconstitutional, other parts of the law must also also be thrown out.
The Hill states that the Justice Department currently believes the parts of the law that requirers insurers to cover people with pre-existing conditions and prohibits insurers from charging these peple higher premiums cannot stand without the mandate for each person to buy health insurance.
AHIP's Supreme Court amicus brief emphasizes that "decoupling the mandate from those other requirments would destabilize the insurance market throughout the nation."
Unmentioned--and which apparantly would be left unaffected by a Supreme Court decision--is the worst provision in Obamacare: The Independent Payment Advisory Board (IPAB).
A previous issue of this newsletter reported that former Congressman Dick Gephardt, the House Democratic Leader before Nancy Pelosi, said the IPAB would have "devastating consequences for the seniors and disabled Americans" and "extend beyond Medicare itself" in which "the under-65 population also loses access to care."
This is exactly what conservatives said throughout 2009-10, and what Sarah Palin meant when she said Obamacare contained "death panels."
Unless the Supreme Court voids the IPAB, congressional action will still be necessary to repeal this dangerous provision.
In a separate article, The Hill also reports the Supreme Court will meet on November 10 to consider if it will accept the various appeals on Obamacare. Both the Justice Department and the 26 states challenging the law, along with the National Federation of Independent Businesses (NFIB), have asked for a quick hearing.
The Court could announce as early as November 14 that it will hear the case in March or April of 2012. A decision could be rendered in June, right in the middle of the presidential and congressional campaigns.
The latest Rasmussen Reports shows that 54% of the people want to repeal Obamacare, 38% want to keep it, and 8% are undecided.