Some Silver Linings From Obamacare Ruling

Robert Knight

7/16/2013 12:01:00 AM - Robert Knight

In the latest court ruling upholding Obamacare, a three-judge federal panel in Richmond, Virginia, rejected Liberty University’s challenge to provide health insurance to both the individual mandate and the employer mandate. There are silver linings here, and we’ll get to them in a minute. But first, let’s look at the case.

Eyebrows were raised a few months ago when the Justice Department said it had no problem with the U.S. Supreme Court sending Liberty’s challenge to Obamacare back to the U.S. Fourth Circuit, which had declined to rule on the merits of the case, citing a lack of jurisdiction.

Two of the three judges on the panel were appointed by Barack Obama, and the other by Bill Clinton. If the federal judiciary wasn’t so politicized, making up laws as they go along, this would not be an issue. But I think it’s worth mentioning.

The 62-page ruling, among other things, says the employer mandate is justified under taxing power and also under the Commerce Clause. That’s the clause in the 1942 Supreme Court ruling in Wickard v. Filburn that the feds cite to intervene if you grow wheat on your own land to feed your animals. If that’s interstate commerce (because the wheat was withheld from possible interstate sales), then forcing you to buy health insurance that you don’t want doesn’t seem like a stretch for courts accustomed to expanding federal power.

However, in FNIB v. Sibelius (2012), in which Bush appointee Chief Justice John Roberts wrote the majority opinion upholding Obamacare under Congress’s taxing power, Roberts and the rest of the majority agreed that neither the Commerce Clause nor the Necessary and Proper Clause could be used to validate the individual mandate. Roberts wrote that the Commerce Clause “authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.” A joint dissent, meanwhile, written by Antonin Scalia, warned darkly that such misuse of the clause could “enable the Federal Government to regulate all private conduct” and “make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.”

That is exactly why big government liberals want so badly for the courts to adopt the expansive Wickard v. Filburn view of the Commerce Clause, which the Fourth Circuit panel did in spades. Literally hundreds of liberal groups and individuals, including many members of Congress, filed briefs opposing Liberty. On the other side of this Goliath v. David showdown, 19 pro-family and conservative organizations, including the American Civil Rights Union, filed in support of Liberty.

In their ruling, the Court briskly dismissed Liberty’s stated concerns that millions of dollars in fines for noncompliance would financially cripple the Christian university. The judges also rejected Liberty’s claim that the mandate, coupled with a requirement to provide coverage of some sort for abortions, violated the university’s religious freedom under the First Amendment.

Now for the silver linings. The court actually agreed with Liberty on the procedural issues, which clears the way for an appeal directly to the Supreme Court, which Liberty Counsel Chairman Mathew Staver has promised. The other silver lining is that the court’s hostility to Liberty’s reasonable claim of religious discrimination should give the U.S. House of Representatives ample incentive to use its power of the purse to defund Obamacare. Sure, the House has passed more than 30 measures repealing the Affordable Care Act, knowing those bills would predictably die in Harry Reid’s Senate. But now they need to exercise the main power that they have -- appropriations -- which must begin in the House, according to Article I of the Constitution. They can do this the next time Mr. Obama comes to them for yet another gulp of the fiscal hard stuff that keeps sending us deeper into debt despite the hysterical uproar over the dreaded “sequester.”

Over in the Senate, Texas Sen. Ted Cruz and nine GOP co-sponsors have introduced a bill that defunds Obamacare. This is what the House needs to do. It helps a lot that the Obama Administration announced a one-year delay to implement the employer mandate after the 2014 elections. That’s not how the administration put it, of course. They admitted that the thing is oppressive, unworkable and will cost even more jobs than it has already. Okay, they didn’t put it that way, either, but that’s the reality.

Nearly every day, a new report, waiver, exemption or policy change emerges, showing that Obamacare is, as retiring Montana Democratic Sen. Max Baucus put it, a “huge train wreck coming down” if the administration doesn’t get half a billion dollars for PR to sell it to the American people. Actually, it’s a train wreck, period. This is a golden opportunity for another major political correction. It was in 2010, after Obamacare was enacted, that the Tea Party-led opposition fueled a political sea change not seen since the 1920s, with the GOP capturing the House, a majority of governorships and thousands of state and local offices. The galvanizing issue was Obamacare, and the newly minted House majority solemnly swore to “repeal and replace” the whole mess. It’s time the House lived up to that promise.

The next time that Obamacare or a section thereof comes up for funding, it will be a chance for House members to step up to the plate and do the right thing. Just cutting the budget somewhat, such as reducing the PR money, won’t be enough. The House must spit in the eye of Democratic threats to shut down the government. Those who vote to continue the federal takeover of one sixth of the nation’s economy, creating a monster that threatens our future as a free people, should find that their party’s primary system has become a minefield. For some, it could even function as a political death panel.