Debunking the leading Obamacare litigation myths | Cory L. Andrews | Op Eds | Washington Examiner

Debunking the leading Obamacare litigation myths

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By: Cory L. Andrews 02/11/11 7:31 AM
Cory L. Andrews, Washington Legal Foundation

In recent days, much ink has been spilled and a great deal of hot air expended by ObamaCare apologists seeking to defend the constitutionality of the radical overhaul of Americans’ healthcare delivery system.

In the process, a lot of misinformation has been disseminated. Here are some of the most common myths being peddled in defense of ObamaCare:

Myth #1: “Twelve judges have rejected the notion that ObamaCare is unconstitutional.”

This myth was actually conjured up by President Obama himself, in a widely watched pre-Superbowl interview with Bill O’Reilly of Fox News. Attempting to depict Judge Vinson’s recent ruling in Florida as “outside the mainstream,” Obama made the stupendous claim that 12 judges had effectively upheld the constitutionality of ObamaCare.

As a former law professor and president of the Harvard Law Review, Obama should have known better. In fact, none of the 12 cases cited by the White House ever reached the constitutional question.

Rather, each case was dismissed for procedural reasons, often because the judge found that the plaintiff either lacked standing to sue or that the court lacked jurisdiction to hear the lawsuit.

In other words, none of the 12 lawsuits reached the merits of the case, including whether the law is or is not constitutional. That’s why even PolitiFact gave the president’s statement a "False" rating.

Myth #2: “ObamaCare is merely regulating the insurance industry. What’s the big deal?”

This myth continues to make the rounds, having been offered most recently by Nina Totenberg on a recent edition of “Inside Washington.” But none of the legal challenges to ObamaCare question Congress’s authority to regulate the insurance industry, a matter squarely resolved back in 1944 by the Supreme Court in United States v. South-Eastern Underwriters.

Rather, the litigation centers almost exclusively on the individual mandate, which requires nearly all Americans to purchase health insurance or else pay a monetary penalty.

Simply put, the individual mandate has nothing to do with the insurance industry. As the administration’s own attorneys have conceded in court filings, the individual mandate “applies only to individuals.” It does not apply to insurance companies.

Myth #3: “Judge Vinson’s decision was a classic example of judicial activism.”

Before the ink had even dried on Judge Vinson’s opinion, the White House quickly sprang into action, issuing a statement accusing Judge Vinson of “judicial activism” and “overreach.”

But by upholding the Constitution, Judge Vinson’s decision is the very opposite of judicial activism. Federal courts have an inherent duty to strike down laws that violate the Constitution because the Constitution is the supreme law of the land.

As Chief Justice John Marshall observed in Marbury v. Madison, “If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.”

In contrast, judicial activism occurs when judges make decisions not based on the Constitution, but on their own personal policy preferences, often in flagrant disregard of the Constitution itself.

Contrary to what the administration and others may think, activism does not refer to judges merely striking down legislation, but to judges actively advancing their own policy agenda through judicial decision-making.

Myth #4: “ObamaCare simply delivers on a major campaign promise by President Obama.”

Since Obama was elected by such an overwhelming margin in 2008, so this myth goes, ObamaCare is simply the culmination of the will of the people. In other words, by giving us ObamaCare, the president is really just keeping a key campaign promise.

But those supporters who voted Obama into office in 2008 most certainly did not think they were voting for a healthcare overhaul that relied on an individual mandate as the “linchpin” that holds the law together.

To the contrary, then-Senator Obama strongly opposed the idea of an individual mandate, stating that “if a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.”

In debate after debate, he repeatedly lambasted his rival, then-Senator Hillary Clinton, for wanting to “force people who don’t have insurance to buy it.” At a debate in South Carolina, he scolded John Edwards: “A mandate means that in some fashion, everybody will be forced to buy health insurance . . . . But I believe the problem is not that folks are trying to avoid getting health care. The problem is they can't afford it.” Unsurprisingly, even PolitiFact rates Obama’s position on the individual mandate as a classic flip-flop.

Myth #5: “Judge Vinson declared not just the individual mandate, but the entire ObamaCare law unconstitutional. That shows how radical he is.”

This is the myth that will not die. Following Judge Vinson’s ruling in Florida, defenders of ObamaCare seized on the supposed “fact” that he declared the entire law unconstitutional as further evidence that Vinson was an unhinged jurist whose ruling placed him “outside the mainstream.”

Similar reports followed from virtually every media outlet in the country (see here, here, and here). But nowhere did Judge Vinson hold that the entire law was unconstitutional. Rather, he found that only the individual mandate was unconstitutional; yet, because Congress hadn’t bothered to include a severability clause, the entire law was void.

This is an important distinction. Other than the individual mandate, Judge Vinson impugned no portion of ObamaCare on constitutional grounds, nor did he overstep his judicial duty.

Cory L. Andrews is senior litigation counsel for the Washington Legal Foundation. To date, WLF has filed three briefs in connection with the ObamaCare litigation.

Read more at the Washington Examiner: http://washingtonexaminer.com/opinion/op-eds/2011/02/dubunking-leading-obamacare-litigation-myths#ixzz1EHq3PfG5