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Supreme Court Orders Appeals Court to Hear Obamacare Case

The U.S. Supreme Court has ordered the 4th Circuit Court of Appeals in Richmond to examine the constitutionality of Obamacare in regard to the employer mandate and religious freedom.

Last week's issue of this newsletter reported that, regardless of how the 4th Circuit rules, Obamacare will likely be re-considered by the Supreme Court during 2013.

Liberty University in Lynchburg, Virginia filed suit, Liberty University v. Geithner, against Obamacare immediately after it was signed into law in 2010. But in 2011, a panel of the 4th Circuit ruled 2-1 that the Anti-Injunction Act (AIA) prevented the appeals court from addressing the merits of the case.

However, when the U.S. Supreme Court upheld the constitutionality of the individual mandate in NFIB v Sebelius, it did not rule on the employer mandate and did not consider the issue of freedom of religion.  

However, the Court did rule 9 to 0 that AIA did not prevent a challenge to Obamacare.

As a result, Liberty University asked the Supreme Court to vacate the ruling of the 4th Circuit and send the case back to the appeals court to consider the employer mandate and its effect on freedom of religion.  The U.S. Department of Justice did not object.

Accordingly, the Supreme Court granted the request.

Obama Received 5.3 Million Less Votes This Year Than He Did in 2008

Mitt Romney slightly exceeded the votes that John McCain received in 2008, while Barack Obama's vote dropped by 5.3 million from four years ago.

In the aftermath of this year's presidential elections, there have been hundreds of articles written praising the terrific "ground game" that Obama had to turn out his vote, while Romney's "ground game" was called woefully inadequate.

The facts are exactly the opposite.

Exactly two weeks after the November 6 election, votes are still being counted. The 2012 National Popular Vote Tracker lists the totals as of 12 midnight, Wednesday, November 21:

64,185,237 Obama
60,099,431 Romney

The current Obama margin of 4,085,806 votes compares with the 2008 Obama margin of 9,550,193 votes. The 2008 results were:

69,498,516 Obama
59,948,323 McCain

At this point, Romney has 151,108 more votes than McCain, but Obama has 5,313,279 less votes than he received in 2008.

In the swing states of Colorado, Florida, Iowa, Michigan, Minnesota, Nevada, New Hampshire, North Carolina, Ohio, Pennsylvania, Virginia, and Wisconsin, the 2012 vote was:

22,744,883 Obama
21,019,078 Romney

Obama came out on top in all of these states except North Carolina, resulting in an electoral college vote margin of 141 to 15. The popular vote margin was 1,725,805. Not counting the votes for the third party candidates, Obama received 51.9% of the popular vote and 90.3% of the electoral college vote.

Supreme Court May Reconsider Obamacare

1.  Obamacare will likely be reconsidered by the U.S. Supreme Court sometime in 2013.

When Chief Justice John Roberts sided with the liberals in a bizarre ruling affirming the constitutionality of Obamacare on the grounds the mandate for individuals to purchase health insurance was actually a "tax," it seemed the legal questions had been settled.  

But as baseball legend Yogi Berra prophetically remarked during the 1973 New York Mets season, "It ain't over till it's over."

The Hill reported that the U.S. Department of Justice told the Supreme Court it had no objections to a new round of legal arguments over Obamacare.

Liberty University in Lynchburg, Virginia was among the first to file suit against the President's health care law on religious grounds.  The complaint stated that Obamacare violated "their sincerely held religious beliefs against facilitating, subsidizing, easing, funding, or supporting abortions."

4th Circuit Court of AppealsBut the 4th Circuit Court of Appeals in Richmond (pictured) ruled that the case was barred from being heard at that time because of the Anti-Injunction Act, an 1867 statute which blocked litigation on a tax until someone actually paid it.  However, when the Supreme Court issued its Obamacare ruling, it said the Anti-Injunction Act did not prevent a challenge to the law.

Since the Supreme Court decision did not relate to the issue of religious freedom, it appears that the 4th Circuit will now consider the Liberty University case on its merits.  Regardless of what the appellate court rules, the Supreme Court will have the final say in the matter.

Fox News noted that federal district courts in Oklahoma, Colorado, and Michigan have recently issued injunctions against Obamacare on the grounds the law forces business owners to violate their religious beliefs by requiring them to provide insurance for "abortion-causing drugs and devices."

Votes for President, House, Senate & Governor

The total popular votes for president, U.S. House of Representatives, U.S. Senate, and governor.

Votes are still being counted, and will continue to be counted for several weeks, but here are the results for president as of November 14, as recorded by Wikipedia:

Barack Obama (D)         62,711,814 (50.62%)
Mitt Romney (R)           59,189,598 (47.77%)
Gary Johnson (L)            1,198,942 (  0.97%)
Jill Stein (G)                     424,676 (  0.34%)
Virgil Goode (C)                117,898 (  0.10%)
Roseanne Barr (P&F)           53,520 (  0.04%)
Rocky Anderson (J)             38,380 (  0.04%)
Tom Hoefling (A)                31,568 (  0.03%)
Others                            118,314 (  0.10%)
Total                        123,884,710

By comparison, the results of the 2008 presidential races, as reported by Wikipedia, were:

Barack Obama (D)         69,498,215 (52.93%)
John McCain (R)            59,948,240 (45.66%)
Ralph Nader (I)                  738,721 (  0.56%)
Bob Barr (L)                      523,713 (  0.40%)
Chuck Baldwin (C)              199,437 (  0.15%)
Cynthia McKinney (G)         161,680 (  0.12%)
Others                             323,984  ( 0.25%)
Total                         131,393,990

At this point, there are 7,509,280 less votes counted in 2012 than were cast in 2008.

Voting machineObama has tallied 6,786,401 votes less this year than he compiled four years ago.

Romney is credited with 758,642 votes less than McCain received in 2008, although that differential may melt somewhat as more votes are counted.

Libertarian Gary Johnson has more than doubled the vote that Bob Barr got in 2008.  In fact, Johnson has so far exceeded Barr's vote by 675,229.

Constitution Party nominee Virgil Goode has so far gotten 81,539 votes less than Chuck Baldwin did four years earlier, but Goode may pick up some late rural votes.

Boehner May Give Up Fight Against Obamacare

House Speaker John Boehner indicated he would probably give up the fight against Obamacare, saying it "is the law of the land."

In a November 8 interview with Diane Sawyer on ABC News, Boehner was asked, "You have said that you would repeal the health care law.  That's still your mission?"

The Speaker essentially surrendered, saying:

BOEHNER:  Well, I think the election changes that.  It's pretty clear that the President was re-elected. Obamacare is the law of the land.  I think there are parts of the health care law that are going to be very difficult to implement.  And very expensive.  And as the time when we're trying to find a way to create a path toward a balanced budget, everything has to be on the table.

SAWYER: But you won't be spending the time next year trying to repeal Obamacare?

BOEHNER:  There certainly may be parts of it that we believe need to be changed.  We may do that.  No decisions at this point.

Michael O'Brien of NBC News commented, "The Speaker's pronouncement, if nothing else, signifies a pivot away from Republicans' efforts to showcase for conservatives their doggedness in looking to repeal Obamacare.  It's also a recognition that the 2009-2010 health care law that came to define Obama's first term in office--and propel Republicans to a majority in the House--is here to stay."

Later that day, Kevin Smith, the Speaker's communications director, attempted to amend Boehner's comments somewhat, saying the issue of Obamacare "would be on the table."

Why Boehner would give up now is hard to understand.  If he's discouraged by the election results, he shouldn't be.

A Status Quo Election

Americans voted to keep Republicans in control of the House of Representatives, Democrats in control of the Senate, and Barack Obama in control of the White House.

This outcome was predicted in the last issue of this newsletter.

Votes are still being counted in some states, but the New York Times reported the results so far are:

60,662,174 Obama    303 electoral votes  
57,820,742 Romney  206 electoral votes
118,482,916 total

Strangely, Florida has not yet been called for either candidate.  With 100% of the vote counted, the results were:

4,143,362 Obama
4,096,346 Romney

The New York Times explained, "Though The Associated Press reported that 100 percent of the precincts had reported, election workers in some counties were still counting provisional and absentee ballots."

Nevertheless, it seems inconceivable that Obama's lead of 47,016 could be overcome.  If Florida's 29 electoral votes are awarded to Obama, that would bring his total to 332.

By comparison, Wikipedia listed the final results of the 2008 election:

69,498,215 Obama  365 electoral votes
59,948,240 McCain 173 electoral votes
129,446,455 total

Interestingly, 10,963,539 less votes were cast this year than in 2008, although that figure will shrink a little as more votes are counted and added to the total.

In the House, Politico reports that Democrats are on track to gain 7 seats, including 10 races that remain uncalled.  Democrats are ahead in 8 of them, while Republicans lead in 2. Democrats fell far short of the 25 seats they needed to re-gain the majority.

Obama Administration Won’t Pay Hospitals

The American Hospital Association (AHA) and four hospital systems have joined together to sue the Obama Administration for denying payments for admitting Medicare patients to hospitals.

This is part of the rationing of health care for seniors that was mandated by Obamacare.  The last issue of this newsletter described how the Independent Payment Advisory Board (IPAB) in Obamacare is poised to ration care for Medicare recipients.  

The Obama Administration has now found additional ways to ration care.  The Hill explained:

At issue are government auditors who judge whether hospitals should have admitted Medicare patients or arranged their care on an outpatient basis.
If an auditor decides that a hospital did not need to admit a Medicare patient, the hospital must return the money it received for that patient's care.
The AHA asked the court to overrule this policy and return money to hospitals.
"Doctors and nurses provide the best care possible using their medical judgment and training," Rich Umbdenstock, president of the AHA, said. "Allowing government auditors to second-guess these difficult medical decisions about where to best treat a patient years later based on a cold record and then refuse to pay for that care is indefensible."

The issue of Obamacare appears to have hurt President Obama and Democratic candidates for Congress in Florida and other states with high concentrations of seniors.

Elections May Produce a Split Decision

The election results may produce a split decision between Republicans and Democrats in races for the House, Senate, and President.

Analysts agree the GOP will maintain majority control of the House with almost the identical margin it currently has over the Democrats.

In the Senate, it looks like Democrats will maintain their majority with about the same margin they now have over the Republicans.  There are a number of Senate seats that are close, but polls show the GOP candidate trailing in most of these races.

The presidential race has a plethora of competing polls both nationally and in the battleground states.  When averaged together, there is an exact tie in the popular vote between Mitt Romney and Barack Obama.

Obama looks to be the narrow winner in the Electoral College vote.

But there are still days to go before the election and even very minor shifts in key states could significantly change the Electoral College vote totals for each candidate.

In the 435-member House, 218 seats constitute a majority.  Currently, Republicans have 242 seats to 193 for the Democrats.

Real Clear Politics says Republicans are leading in 226, Democrats are leading in 183, and there are 26 races that are rated as toss-ups.

Stuart RothenbergThe Rothenberg Political Report (compiled by Stuart Rothenberg, pictured) projects Democrats to have a net gain of between 2 and 8 House seats.

The Cook Political Report projects a Democratic gain of between zero and 10 seats in the House.

Dr. Larry Sabato's Crystal Ball predicts a net gain of exactly 4 House seats for the Democrats.

In the 100-member Senate, there are 33 seats up for election this year--23 Democrats (including 2 independents who caucus with the Democrats) and 10 Republicans.

Real Clear Politics sees Democrats ahead in 16 races, Republicans ahead in 6, and 11 toss-ups.  In the 11 toss-up races, Democrats are leading in 6 races, Republicans in 5.  If those results hold, Democrats will win 22 races, Republicans 11.  As a net result, Republicans would end up with 48 seats, the Democrats 52--a net gain of 1 for the GOP.

Medicare Open Enrollment Runs Thru Dec 7

The Open Enrollment for Medicare began on October 15 and goes through December 7.

Ann Carns of the New York Times writes:

Many of the elderly with Medicare do not realize it, but their health coverage has an annual open enrollment period, just as employer-based health insurance plans do. During this period, they can change their coverage options if they choose.

Seniors who are satisfied with their current plans do not need to do anything.  However, since some of the plans may change for 2013, it is a good idea to review all of the available options.

CMS Medicare logoMedicare has a Plan Finder website at
that allows seniors to conduct both a general and personalized search for plans in their particular location.

The Centers for Medicare and Medicaid Services (CMS) has also produced a 140-page online booklet, Medicare and You 2013, which contains detailed information about Open Enrollment.

The booklet begins with a joint letter from the Secretary of Health and Human Services, Kathleen Sebelius, and the Acting Administrator of CMS, Marilyn Tavenner, containing Obamacare propaganda in a transparent effort to try to help the President in his re-election campaign.  The letter states in part:

We're excited to continue implementing the new Medicare benefits provided to you under the 2010 Affordable Care Act.

There's a lot of information about this law in the news including many new opportunities for all Americans to compare plans and get affordable health care coverage. Be assured that you'll still have access to all of your guaranteed Medicare benefits. In fact, this important piece of legislation extends the life of the Medicare program and offers you real benefits.

As reported in previous issues of this newsletter, the Obama Administration has engaged in a steady stream of propaganda, at taxpayers' expense, to try to convince the public in general, and seniors in particular, that President's health care law is beneficial to them.

Sign the Petition: No More Candy Crowleys

1.  The New York Times reported that 59.2 million people watched the final TV debate on October 22 between Mitt Romney and Barack Obama, which was moderated by Bob Schieffer of CBS News.

The second presidential debate on October 17, moderated by Candy Crowley of CNN, drew an audience of 65.6 million.  

The vice presidential debate on October 11 between Paul Ryan and Joe Biden, moderated by Martha Raddatz of ABC News, was seen by 51.4 million.

The first presidential debate on October 3, moderated by Jim Lehrer of PBS, had the most viewers--67.2 million people.

Romney's overwhelming victory in the first debate may have inspired Crowley to try to make up ground by overtly helping Obama in the following debate.  As the last issue of this newsletter mentioned, the President had 4 minutes and 18 seconds longer to make his points than did the former Massachusetts governor.  And Crowley frequently cut off Romney when he attempted to counter accusations from Obama.

Is there anyone--Republican or Democrat, conservative or liberal--who doubts that Candy Crowley is an Obama supporter?

An online poll conducted by ConservativeHQ.com found that 93% of respondents gave Crowley an F for her actions in the debate.  2% awarded her a D and 1% said she deserved a C.  Not one person gave her an A or B grade, while 3% said they did not watch the debate.

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