A Supreme Court Precedent Against ObamaCare

http://i0.wp.com/oregoncatalyst.com/wp-content/uploads/2010/11/billofrights.jpg?resize=140%2C160When federal and state law conflict, under the Supremacy Clause (Article VI, Clause 2) federal law often takes precedence. But it doesn’t always.

Oregon was in the forefront of what could be a very relevant exception. In Gonzales v. Oregon, 546 U.S. 243 (2006), the U.S. Supreme Court upheld Oregon’s “right-to-die” law, approved twice by Oregon voters. The U.S. Attorney General argued that federal law pre-empted the state law. The Supreme Court disagreed and found that states generally have wide discretion in regulating health and safety, including medical standards. Finding that the Bush administration’s reading of the federal statute would mark “a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality,” the Court ruled that Oregon could protect the rights of its citizens, at least in this specific instance.

The case was decided on a 6 to 3 margin. The three dissenters were “conservatives” Scalia, Roberts and Thomas. But, now that it is precedent, we can hope that those judges will join some “liberals” and apply its logic against ObamaCare.

In the current case before the Court, Oregon’s Attorney General is arguing that the federal government can override the wishes of the 26 states that oppose ObamaCare. Let’s hope that those 26 states prevail and every American is protected against an overreaching federal government that seeks to force us to purchase a product (in this case health insurance) against our will.

As Betsy McCaughey, Ph.D. puts it, “Whether you are a man or a woman, pro-choice or pro-life, you lose freedom and privacy under this law.”

Three Amicus Briefs in the current ObamaCare case that use Gonzales v. Oregon as an argument against the law:
American Legislative Exchange Council, pages 10 and 15.
Goldwater Institute, pages 24, 29, 31
State of Virginia, page 24.

Here is a Brief supporting states rights in the original Gonzales v. Oregon case:
Cato Institute Amicus Brief in defense of Oregon’s Death with Dignity Law in the Gonzales v. Oregon case.

Steve Buckstein is senior policy analyst and founder at Cascade Policy Institute, Oregon’s free market public policy research organization.

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Posted by at 12:15 | Posted in Health & Human Services, Health Care Reform | Tagged , , , , | 273 Comments |Email This Post Email This Post |Print This Post Print This Post
  • valley person

    ” Let’s hope that those 26 states prevail and every American is protected
    against an overreaching federal government that seeks to force us to
    purchase a product..”

    This is such a load of crap argument I can’t believe anyone makes it with a straight face, especially 26 state attorney generals who area all insured by the government.

    Just about every American with a brain WANTS to have health insurance. The only reason a few don’t purchase it is because they can’t get it (pre-existing conditions) or can’t afford it. Since the government is stepping in to help pay for it, that takes away the affordability argument.

    The handful of Americans, perhaps 2% of the total population who truly do not want to buy health insurance can opt to pay the fine instead. That fine will help cover their care if and  when they show up at the emergency room or become charity cases.

    In other words, the purchase mandate is nothing more than a way to get the free riders off of the backs of the rest of us by having them pre-pay a bit of their inevitable health care tab. Conservatives used to be for this sort of thing before they went crazy over Obama. 

    • JoelinPDX

      You kind of left out one important group here VP. I’m talking about people who don’t want health insurance…young people generally.

      In 2010 (last year figures are available) just over half of all Americans were 39 or fewer years old. Most of these people simply don’t feel the need for or want health insurance. Yet, the Obozo Administration is bound and determined to force them to have health insurance.

      You know, my doctor tells me that spinach, Brussels sports and broccoli are good for my health. If Obozo can force me to have health insurance, maybe he can force me to buy broccoli and eat better (Mrs. Obozo would like that.). Or how about this, I would be much less likely to be injured if I never rode in a car…maybe Obozo can force me to limit my transportation to horse and buggy.

      Those things seem kind of silly…but no more silly than forcing health insurance on those who don’t want it.

      • 3H

        And of course when they run to the emergency room … no insurance, can’t pay their ER bill, they are perfectly happy making someone else pay.

        • Ardbeg

          I don’t get it. Conservatives hate paying for someones food stamps or unemployment but don’t mind paying for uninsured folks medical expenses. Go figure.  I guess I’ll decide to drop my car insurance and let someone else pay for it if I total your car.

          • Jenny

            For the cost of Obamacare, we can more than pay for all the emergency room visits these few uninsured people have. Just like the “jobs” Obama bought with our money.. $100,000 for a one month job????

          • 3H


        • JoelinPDX

          It’s called playing the odds 3. Most of them will never see the inside of an emergency room. Besides, that’s why we have emergency clinics that are totally capable of dealing with the few health problems (like head colds) experienced by young people.

          It’s no different than sports betting…but then you’d probably be happy forcing people to bet on the Seahawks or the Mariners.

          • valley person

             The difference Joel, is that those who can afford it but don’t have health insurance are betting with your money, not theirs. I’m surprised you are ok with that.

          • JoelinPDX

            But I win the bet right along with them.

            No way, no how is it constitutional for Obozo to force anyone to buy anything. If he can force you to buy insurance, he can force you to buy an electric train set. And you have no problem with that?

            As for Ardberg’s argument against car insurance (below)…the difference is that driving is a privilege. There’s a whole raft of things you can’s do and drive…such as drinking alcohol.

          • valley person

             you aren’t qualified to make the constitutional call, and neither am I. And for that matter, the justices will make the call on politics, not law.

            He would have to make a case that my not buying an electric train set had a negative financial impact on everyone else. In health care, that is a case he can make. Not on trains.

            So driving is a privilege. So is being treated at an emergency room.

          • Ardbeg

            Ok, the gov makes me pay taxes for police, (never have called them), fire department (never have called them) and schools, my ‘kids’ are adults now, why am I still paying. Your point makes no sense.  Why are you ok paying a higher rate to cover those who ‘gamble’ and do get insurance? I don’t care if you want to pay for free loaders, I don’t want to.

          • valley person

             “Your point makes no sense.”

            You should have just stopped there. When has Joel tried to make sense?

          • Ramalama

            Hey, Joebozo (see, we can play that game, too), did you complain that G.W. Bush forced me to pay for two wars that I didn’t want?

          • 3H

            Now.. if this fails, maybe, just maybe, we can have a discussion about single payer.  That would pass constitutional muster… and would answer most of the concerns of Conservatives.  Not that they wouldn’t squeal like stuck pigs anyway.

          • JoelinPDX

            Single payer would still require people to buy health insurance (unless you have some other idea of how to fund it) and therefore still fails to pass constitutional scrutiny. As for stuck pigs, I think you’re confusing liberals who can’t stand that their Gods’ premier piece of legislation is going  down the toilet.

          • valley person

             No, it would require them to pay a tax, like we do for Medicare, and in return we would get insurance provided by the government. And there is no consitutional question that the government has the power to tax.

          • JoelinPDX

            Funny, you can’t win the argument on constitutionality so the battle is suddenly changed to politics. It’s all about the constitution, no changing that.

            And you can call single payer a tax but it’s still a premium. What else would you call a charge for insurance? You can call it a duck, if you want, but it’s still a premium. 

            As for Medicare, it’s clearly unconstitutional…always has been, always will be. Maybe once we end Obozocare we can tackle Medicare.

          • valley person

             I’m not making a constitutional argument. I’m saying I don’t buy that as a reason to oppose Obamacare. This is all about politics, and it exposes this Court for what it is, a political, not a judicial body.

            Single payer is clearly a tax. I pay a Medicare tax. I don’t pay a Medicare premium, though people like yourself who get Medicare do pay a premium.

            Arguing that Medicare is “clearly unconstitutional” is a riot, since it would have been found that by now if that were the case.

          • 3H

            And addition to VP – if Medicare is constitutional, so would be single payer.   

            No… I see a lot more whining on here (and on a per capita basis) by conservatives than the liberals.

          • JoelinPDX

            Take a closer look at the whining 3…it’s all coming from you, VP, Ardberg and HBGuy.

          • 3H

            Oh!… discussion = whining.  My apologies, my dictionary is different than yours evidently.  😉

          • Ardbeg

            Whining? like calling people silly names? Joel, your the master at that, why debate when you can relive the 3rd grade.

          • valley person

             These days, what is constitutional is whatever justice kennedy says is constitutional. That is what makes this procedure a joke.

      • http://www.facebook.com/SteveBuckstein Steve Buckstein

        Even worse, ObamaCare apparently prohibits anyone 30 years or older from buying just catastrophic care insurance. This was discussed in the oral arguments before the court today. Many young people, and even older people, make the rational decision to just insure against major events, not day to day health care needs that ObamaCare would force them to insure against. Talk about bending the health care cost curve UP!!!

        • valley person

           That is a political argument against Obamacare, not a constitutional one.

          • Steve Buckstein

            vp, I think we agree here, this is a political argument, and it was an interesting part of the oral arguments yesterday. I must have missed that page in the law, but it clearly will make insurance more, not less expensive for those people over 30 who would like to make more rational choices about what risks they insure against in their lived.

            Some Justices conflated the health care market with the health insurance market, thinking that just because everyone born will at some time need health care that that might justify the mandate. Like you, I’m not a lawyer, but it seems clear that this argument is not a constitutional nor a political one in favor of upholding the law.

          • valley person

             Yes, it is a burden on those who would prefer a high deductible, catastrophic event only policy. I agree. I don’t think this is a constitutional question. Its a policy one, and items like this could be renegotated and changed down the road by tweaking the law’s provisions. No need to go to the Supremes for that.

            I have to agree with those justices who expressed that sentiment. Access to health care, other than very routine stuff or emergency care, is through health insurance. Failing to have health insurance is in effect gambling with House (our) money, and is costing the rest of us in increased insurance rates. That has been pretty convincingly demonstrated, even by the Heritage Foundation though they now disavow their previous research.

            The law is flawed in a whole lot of ways. But we probably disagree on the nature of those flaws.  

        • Ramalama

          If you were interested in having a real discussion, you would call the legislation by its name, the Affordable Care Act, and not the dog-whistle “Obamacare” name that rouses the anti-Obama minions.

    • http://www.facebook.com/SteveBuckstein Steve Buckstein

      Lots of people are making this argument with a very straight face. That’s why the Court has allocated an unprecedented six hours to oral arguments on the case.

      Yesterday’s arguments centered on whether the penalties for not buying insurance are a tax. The Court seemed to dismiss that debate and moved on today to the more substantive issue of whether there are any limits to the power of Congress to “regulate” commerce, including its ability to force Americans to buy a product they otherwise chose not to buy. Straight faces all around.

      Some very interesting give and take between the Justices and the lawyers occurred. Here are the sites to view and hear all of today’s hearing:

      Written Transcript





      • valley person

         Yeah, I know. A lot of people have to pretend this is about law. It isn’t. Its about politics.

        No one argues there are no limits to regulating commerce. That is a red herring. And frankly, no one cares about whether the mandate stands or doesn’t as a constitutional point. It is all about politics. The 2% of the American people who might not want to buy a policy are not the relevant players here.

    • Jennylynn180

      I agree that most people do want insurance but can’t afford it..So how is the mandate forcing people into insurance going to help the situation? Apparently they still won’t be able to afford it, so they will have to pay a penalty.. how is that going to help them afford it?

      • valley person

         There is a sliding scale of government assistance to help people pay for their health insurance. So everyone will be able to afford it.

    • http://www.facebook.com/kenneth.davenport2 Kenneth Davenport

      Let me ask you why health care costs so much and why does it cost so much for health care insurance.  My only thought is that its because of government in the first place.  If they didn’t over regulate it in the first place and let doctors be doctors, and turn health care over to the free market, we wouldn’t have this problem.  Its pretty bad when heart surgury here costs $100,000.00 and in a place like india it costs just under $3000.00.  Another question.  What happened to all the doctors that used to have their own private practice?  Why do we not see them today? 
      The only answer I have is that it must be because of High malpractice insurance and to many government bureaucratic policies.
      I say cut government and get them out of our health care in the first place.

      • valley person

         “Let me ask you why health care costs so much and why does it cost so much
        for health care insurance.  My only thought is that its because of
        government in the first place.”

        Ken, why do nations that have government provided insurance have far lower health care costs, yet as good or better outcomes, as we do?

        Does getting the government out of our health care include Medicare and the VA?

        • http://www.facebook.com/kenneth.davenport2 Kenneth Davenport

          Less regulations.  It maybe controlled by government but not as regulated as we have regulated it.

          • valley person

             Ken, with due respect that makes no sense. In nations where government provides health insurance, they also set payment rates. Its more than regulation. Its financial control over the whole system.

          • http://www.facebook.com/kenneth.davenport2 Kenneth Davenport

            They also don’t have a malpractice insurance that prevents doctors from having a private practice.  They also don’t have medicare that dont pay their bills.  They probably don’t have big pharmaceutical companies with polititians in their back pockets.  How come it takes FDA several years to approve a drug and then costs us a hundred times more than what that drug would cost out side the states?  Doesn’t make sense huh?  I always wandered why it cost me 2000 dollars to have my son get an xray and only 300 dollars for my dog to have one.  Its called, over regulation.  It costs doctors and hospitals millions per year to meet these regulations and they take it out on us, the consumer.

          • valley person

             “They also don’t have medicare”

            Yeah, actually they do have Medicare, but for everybody rather than only for elders. And Medicare ALWAYS pays its bills. It just pays at lower rates than some private insurance companies. That is a way to save money. Its the same thing Wallmart does. Use your size to set favorable rates.

            They have the same pharmaceutical companies we have. Where do you think Canada buys its drugs? At much better rates than we pay by the way. Why do you think that is?

            If you want your so treated like your dog, that may be part of your problem.

  • Bob Clark

    If the Court derails ObamaCare, we should party like it’s 1999.  Who should want the federal government to tell us what and what isn’t to be in our healthcare insurance.

    What exactly is health insurance?  If I pay a clinic a monthly fee to be a member, enabling me to be seen by a healthcare provider at this clinic…maybe the clinic doesn’t offer certain services like sex change operations, abortions, breast exams (since I am male), or hundreds of other not applicable services.  I fail to see why this wouldn’t qualify as meeting my healthcare needs;  BUT NOT UNDER OBAMACARE.

    Obamacare totals over 2,000 pages with exceptions at the discretions of Obama Bureaucrats, and gives government way too much power over the individual.  It de-powers the individual.  What’s more, it is another unaffordable, bankrupting federal government entitlement.

    Crossing fingers the court derails this blob of government bureaucracy, and we can then party like it’s 1999.

  • Steve Buckstein

    Here’s an interesting 3-minute video analysis of today’s oral arguments before the Court.
    “Constitutional Thunderdome”: Day Two of Obamacare Oral Arguments

  • Healthmatters

    How can 26 states take away my right to free health care from the federal government? I want my free health care and I don’t worry about the constitution if I need free meds and treatment for my ADD. I get it all free now because I don’t have a job, but at least with the new law I will get it free even when I do get a job.

    I must be cared for as I am unable to care for myself. It is not my fault. Please, won’t someone understand and just help us little people??
    How is health care any different from food stamps, counseling, job taining, light rail, housing, and my free cell phone. All those things are free to me just by asking – so why not my health care too.

    If I stay healthy I should be able to someday get work. At least that is my plan for now.

    Thanks to all who are fighting this good fight for the people like me who cannot fight as we are simply too weak.

  • Just doing the math

    I don’t get it. With all the talk about “personal responsibility”
    which seems to be one of the mantras of the conservative party,
    you would think that most of the conservative posters on this site
    would be thrilled to have a mandate that required the 50 million+
    uninsured people to do just that; TAKE RESPONSIBILITY and buy
    health insurance. But I have to remember, stupid is as stupid goes;
    we will as a nation keep doing the same ol same ol and pay for
    all of those uninsured who make trips to the expensive emergency
    room. Make the excuse that it is the overeaching hand of the Fed’s
    in our lives; what it really boils down to, if many conservative
    posters on this site had their way (not all), if you can not afford
    to pay for health care, that’s just tough, cause I got mine.

    • Steve Buckstein

      math, being forced to do something is not the same thing as taking responsibility – it’s the opposite.

      • valley person

         One can be forced to take responsibility Steve. If a young healthy person chooses to gamble with our money, we should be able to choose to say: “No, take responsibility for insuring that the costs of your health care are covered.”

        That is what the mandate does. It shifts the risk burden from society to the individual.  That is a classically conservative approach. A classically “liberal” approach would be to absolve the individual from responsibility and let the rest of us handle it.

        A classic libertarian approach would be to just do away with any public responsibility for anyone I suppose.

        • Steve Buckstein

          vp, good points. One problem with taking responsibility through the currently proposed (mandated) mandate is that it defines “insurance” much too expansively, so most people will be prohibited from simply insuring against high cost, “catastrophic” type events.

          Many young people, for example, might be willing to insure against getting hit by a bus or getting cancer, but prefer to take their chances, or save themselves for more routine care. But the ObamaCare mandate prohibits such catastrophic policies for anyone over 30 years old.

          Of course, the Court isn’t supposed to consider such nuances, but simply rule on the Constitutionality of the mandate. As you’ve pointed out here, however, politics may creep into its decision.

          • valley person

             I agree with you the law would be improved by loosening up the insurance requirements. It would also be cheaper to implement for the government. The health care wonks look at the data and conclude that high deductible insurance results in people avoiding or putting off routine care, so they were right to exclude it. But had they done so they might have been able to avoid the mandate altogether.

            The estimates I’ve seen are that the total number of people who really don’t want to buy insurance is only 2 million. We probably should let them opt out, in return for signing away their rights to care paid for by others.

            Politics is not going to “creep” into this decision. It is going to 100% determine it and then be dressed up in the Constitution and precedent. Its unfortunate it has come to this. But what Republicans could not do in the legislature, they will try and do in court. They are exposed as hypocrites on “legislating from the bench.”

          • valley person

             I should add, the core problem with Obamacare is that it is trying to accomplish what singer payer accomplishes without being single payer. Setting a high bar on private insurance was necessary to achieve that objective.

        • Just doing the math

          I believe that was the point I was attempting to
          make. Thanks.

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