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The Ignored Silent Evil Gorilla in Obamacare

By: halsted (Diary)  |  March 28th, 2012 at 10:57 AM  | 

RESIZE: AAA

While everyone is debating the individual mandate and the cost fallacies in the Affordable Healthcare Act, one of the most potentially damaging aspects of the bills is being largely ignored. The idea that a bill can be passed in Congress which would have wording that states it can never be repealed or changed is insane.

The founders of this country meant for making and changing laws to be difficult. With both sides of any issue standing their ground and debating vigorously, only the best ideas which could produce some semblance of consensus would be enacted. The Constitution has a mechanism built in it for change, but it is hard to do on purpose. The founders had been subject to rule by whim and wanted no more of it.

The Affordable Healthcare Act sets in place policies which, by law, cannot be changed.  This is tyranny of the majority in perpetuity. Whenever a party finds themselves in a strong enough majority, it can put in place policies that cannot be changed even if that party is uniformly rejected later.

Suppose a party with the presidency, a filibuster-proof Senate majority, and control of the House of Representatives (as was the case in 2008-2010) passes a reprehensible law (e.g., Women can no longer vote, pedophilia is legal, reinstitution of slavery, decapitation as a mandatory sentence for jaywalking, etc.) and adds to it a provision that the law cannot be repealed. At the subsequent election, the people throw all the idiot legislators and President out of office for passing such a bill. However, the newly installed legislature cannot repeal that bill. To have the ability to pass bills which cannot be changed or repealed is to put in place that the only way to change policy is for armed insurrection to overthrow the government and reinstitute the government every time a policy change is required. That is insane. You end up with more governments than France over the years. Yet this is what the Democrats tried to do. They violated the rules of the Senate to pass a bill and then try to have it remain in place forever by the language within the bill.

I find this the most egregious part of the entire episode.

COMMENTS

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  • Scope

    that Ocare was being debated. I also remember reading that no Congress can pass a law that the next or succeeding Congress’s cannot repeal or change. Of course the entire argument is about the law’s constitutionality, not that the liberals have ever paid any attention to the Constitution. Even with that, there have been votes in the current Congress to repeal all or parts of Ocare, and the libs have not bothered to remind anyone that the law can’t be changed or repealed, as they know they have no leg to stand on. Let’s hope that the entire law goes away.

    • rightland1111

      I believe that the Supremes are real people and I also believe that they (with the exception of Ginsberg, Kagan, who should recuse herself and Sotomayor) know just what raminifactions this entire bill has on the “LIFE” of this country.

      This bill, because of all the other BS in it, will bring our country to its knees…they know it…most of us know it…and the Libs…well..they are out to lunch.

      • streiff

        concerning the high degree of probability that you are abusing our terms of service.

        You ignored me.

        If you feel you’ve been maligned hit the contact button and make your case.

  • Scope

    It’s just being reported that Justice Bryer held up several pages from the Ocare bill, and said that the law includes so many other things than just the individual mandate, and asked how they are supposed to pick and choose between what to keep or what to get rid of. He also brought up the vote buying that went on in Congress to get the bill passed, and in particular brought up the Cornhusker Kickback. Very interesting points from one of the lieberal justices.

    The medicaid argument begins at one.

    • acat

      Seems like Breyer may be trying to get the government lawyers to provide some evidence for him to find Ocare non-severable here…

      Given the lack of a severability clause, and the everything-and-the-kitchen-sink nature of the law, the argument would look like “We can’t get rid of the mandate because we would have to get rid of all this other stuff too!” …

      It’s a crap argument, in the real world, but .. I hesitate to think good things about Breyer.

      Mew

      • lineholder

        in conjunction with the questions Breyer has asked during the last the two days, it does indicate that he’s questioning the legitimacy and validity of specific things included in the law.

        With Kagan and with Sotomayor…I think they are both so focused on the political end of it that even if they knew beyond all shadow of doubt that the precedent for expansion of federal power could indeed be a significant threat across our society as a whole for future generations…they’ll just shut out the reality plain and simple. Their political positions are such that they favor this grant of power to the federal government.

        Breyer at least seems to have some questions in that regards.

        • acat

          She’s the poster-child for getting more conservatives – not GOP weenies – into the Senate.

          (and given Kennedy, Scalia, Ginsberg, and Breyer are all over 70, a *very* good reason to vote ABO in November!)

          Mew

          • westcoastpatriette

            socialistic piece of crap bill stand, the wrath of the people will then be turned on them in full force. And the people may then be ready to listen to Gingrich’s strategies for dealing with an out of control judiciary that functions as an oligarchy.

            Seriously, I wonder how much the judges are factoring in the sheer weight of the fact that twenty-six states are suing over this — we can’t all be crazy in demanding that something be done. And the fallacy that only the Supremes (great and mighty as they are) are able to interpret the Constitution properly will backfire in their faces if they let this bill stand. I am sick of being jerked around by politicians and corrupt judges. Time to think outside the box — come on Gingrich.

          • lineholder

            IF SCOTUS rules to let the individual mandate stand, then I think is it very much so possible that this could raise an even higher level of awareness than already exists as to the judicial implications of re-electing Obama, and could conceivably provide more people with greater motivation to put boots on the ground for Republicans.

          • Dave_A

            The only way to dump it will be to get control of all 3 branches of government in November.

            However, I’m cautiously optimistic that it will be overturned – that said, we won’t know until late in the election season anyway (the verdicts are usually issued at the end of the court’s term)….

          • acat

            That is, a second October Surprise?

            Mew

            * the first surprise being that CCB is back on the table, Boehner has no chance of getting conservatives to get a non-CCB debt hike passed, and Obama is spending fast enough that he’s gonna hit the debt ceiling in September or October…

          • Dave_A

            ntxt.

      • Scope

        on the severability clause even being argued before the SC is that the law that was “passed” and “signed by Obama” never included the severability clause. Judge Vinson in Fla. struck down the entire law as he read the law as was passed and signed. So does that mean that the SC can arbitrarily just add back a severability clause, or assume that they really meant to include it, but for whatever reason didn’t?

        I wouldn’t presume to think that Souter brought up the fact of all the “vote buying” that went on to get the law passed, as to why the severability clause was not included. I’m sure that even he knows that the clause was supposed to be reinserted during reconciliation, but the bill never went to reconciliation because Brown was seated, and the Democrats knew they couldn’t get it passed in the Senate again. I’m not sure how Souter would be helping Verrielli in bringing up the fact that a lot of back room dealing had to go on to pass the bill. That points clearly to the fact that the bill was strictly passed as partisan legislation, and had not one Republican to make it a bi-partisan bill. It will be interesting to see what Verrielli’s response was to Souters thinking.

        I agree with other’s here that believe that Souter is in fact thinking about the ramifications of upholding or striking down the legislation. Souter has asked many good questions that indicate he is open to being swayed by the attorney’s. I know that one cannot glean anything from the justice’s questions, but I also find it hard to believe that some or all of the justices would bring up points in oral arguments that will be heard by the public, only to turn around and completely throw out the arguments of the attorney’s with their answers. I’m sure it’s not impossible that one or more of the justices that don’t get the answer they want will abandon the whole question or reasoning. I don’t know how to put this any better than saying are the justices just wasting everyone’s time with the oral arguments, and have already made up their minds, and nothing will sway them.

        • acat

          but other than that I see your point. I think they’re trying to decide whether to punt the whole enchilada back to Congress, or to split it and let Congress pick up the pieces.

          Politically, I think the former works better for conservatives as it disillusions the Dems while giving us the option of saying “For more decisions like this, we need to ensure a conservative court, vote GOP!”. (yeah, yeah, Nixon and Bush 1.0′s picks sucked .. but they suck *less* than Kagan or Sotomayor!)

          Mew

          • rightland1111

            I know you do not like Breyer…but I believe he will go with the rest. I also BET the Alito (sp) will write the dessenting opinion. We all remember Obama’s SOTU address where he all but insulted the Supremes…well he did insult them. So…that is my Vegas bet…the entire thing goes back to Congress because the Court will rule the entire bill unconstitutional.

          • clintonformccain

            …but then again, he’s so arrogant, he probably doesn’t care.

            I’m actually thinking 6-3, as well. It’s anybody’s guess, but if the votes is 5-4 to overtuner, Sotomayer could increase her power on the Court dramatically by casting in with the majority and establishing right out of the gate that she’s not an automatic stooge for the Dems — in the same way that Kennedy gains power with a reputation as a potential swing.

            I wouldn’t even hazard a guess on the severability issue. Thare are no good choices for the Court on that one.

          • Scope

            the grannies, ooops, I mean the nannies will be the ones voting to uphold. Then the liberals will be screaming- see we told you that the conservatives hate all women. They will turn it into gender warfare yet again.

          • Dave_A

            dissent, if the law is overturned?

            Or did you mean to say ‘majority opinion’?

        • lapert

          Generally the courts assumption is one of severability – a clause is unnecessary and also not dispositive on its own (it can still be severed).

          This is one area where, if they do rule the mandate unconstitutional, they may try and define a more concrete standard for severability arguments. From the transcript alone (haven’t heard the audio yet, not sure it will change my mind) I don’t get a good sense of how they are leaning.

          And for he record, Scalia mentioned the Cornhusker kickback as an example of a provision that if found unconstitutional would clearly not have been the intent of congress to kill the whole act – thus the notion that the act, at least in some instance, is severable.

          And Roberts talked about all the unrelated provisions as a means of obtaining votes in a question around the impossibility of knowing what Congress would have intended to stand on its own.

  • halsted

    Section 3403 reads in part:

    • lapert

      You might want to read the rest of that Section – this doesn’t say that the bill cannot be repealed or changed.

      • Ann_W

        I don’t remember all the details, but there is a clause in the bill that refers to all the bureaucracies of the ACA and then just gives a small time frame (months IIRC) that those can be dismantled. That window according to the bill is in 2016, I think. It’s not a surprise that not many people have found the clause; even the Supremes are admitting that they haven’t read it all.

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  • Viet71

    What an abdication of congressional responsibility.

    Another dagger in the heart of the ACA.

  • jimmyg

    You realize that in January of 2011 the House voted to repeal Obamacare. It passed and died in the senate. At no time was the issue you have raised, that their is a prohibition on its repeal within the law itself, ever raised by anyone.

    Perhaps you have a link.

  • halsted

    look at the wording of section 3403 quoted below, as inserted by Harry Reid