Health-care lawsuit: The real need is for a wiser approach to reform

Congressional supporters of the health reform act had plenty of warning that, however good its intentions, the bill was venturing into unprecedented legal ground.

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Congressional supporters of the health reform act had plenty of warning that, however good its intentions, the bill was venturing into unprecedented legal ground.

The accusations are as insidious as they are inaccurate. An e-mail was circulated earlier this month by a member of Congress accusing me of trying to “wipe out” the entire health care reform law, eliminate health care coverage for children with congenital heart defects, and take prescription drugs away from seniors. Hours later, Gov. Chris Gregoire, flanked by U.S. Health and Human Services Secretary Kathleen Sebelius, accused me of trying to have the entire law thrown out. She raised the specter that many seniors would each lose $250 worth of coverage and small business people would lose tax credits, among other ominous claims.

Perhaps advocates for government-controlled health care engage in these over-the-top tactics because they’re not interested in discussing the legality of their agenda. After all, two federal judges recently agreed with 28 state officials — governors and attorneys general — who believe that parts of the new national health care law violate the Constitution. 

Apparently those who think the government should control your health care choices think the U.S. Constitution is an inconvenience that can be brushed aside.

Their demagoguery allows them to change the subject away from the uncomfortable truth that Congress was warned by both the Congressional Research Service and Congressional Budget Office that the health insurance mandate is unprecedented and constitutionally problematic. Congress ignored these warnings. They compounded that error by removing a severability clause from an earlier draft of the bill that would have expressed the intent of Congress to preserve the rest of the law should any one provision be struck down. Federal Judge Roger Vinson cited the clause's removal as evidence that the bill's drafters did not want the individual health insurance mandate to be severable from the rest of the healthcare law. 

Perhaps if the 220 House members who voted to approve the bill had actually read it beforehand, they would have appreciated the significance of this blunder. They effectively put the entire healthcare reform measure at risk by including an untested mandate that their own staff members had repeatedly questioned and cautioned against, then arrogantly removed language that would have protected the bill should the mandate be struck down.

Everyone in Congress knew that a law this sweeping — one that impacts every single American’s health care options — would be challenged in court. We’re a nation that reveres our Constitution.

Those of us who signed on to the lawsuit all agree that the mandate requiring all U.S. citizens to have or purchase health insurance, or face a fine levied by the Internal Revenue Service, violates the powers granted to Congress.  The Constitution limits the power of the federal government in order to assure that federalism is real and lasting, and that the rights reserved to the states and individuals are respected and protected.

If Congress may require you to buy a government-mandated private product, are there any remaining limits on the power of the federal government to control our individual choices? Once those limits are erased, what else may a future Congress compel us to do?

These are questions that deserve serious consideration, as all the courts considering challenges to the individual health insurance mandate have agreed. Not one of them has dismissed those challenges as "frivolous" — exactly the charge that several state and federal elected officials and law school academics hastily and erroneously hurled at the states' lawsuit.  Notwithstanding their embarrassment in being proved wrong in predicting the lawsuits' dismissal, proponents of the health care law are undaunted in their desire to demagogue and attack dissenting voices.

I have publicly stated from the beginning that there are specific parts of the 2,700-page law that I believe are unconstitutional, and that these parts should be struck down and severed from the remainder. Federal Judge Henry Hudson reached the same conclusion in Virginia's challenge to the individual health insurance mandate. Judge Vinson, in the 26-state case in Florida, disagreed and invalidated the entire law. While I believe that the U.S. Supreme Court will ultimately agree with Judge Hudson, the Vinson ruling against severability highlights the needless risk taken by Congress in incorporating the mandate while deleting the severability clause.

Regardless of the Supreme Court's ultimate ruling, nothing prevents Congress from immediately fixing the legislation to make it constitutional. Despite their heated rhetoric, the governor and her allies in Washington D.C. know this to be true.

In fact, there’s a growing, bipartisan consensus in D.C. that removing the mandate is exactly what needs to be done. Even President Obama now acknowledges that an option other than the individual mandate can be found.

Reforming health care is incredibly important. Health care costs take an increasingly huge bite out of family —and state — budgets. And care should be affordable and available to all Americans. There are many solutions to these challenges that don’t conflict with the Constitution. However, some columnists, including Seattle Times editorial writer Lance Dickie, maintain that Republicans “fail to offer a single idea of their own.” In fact, Republicans have offered numerous concepts for bringing costs down while maintaining quality care. Those ideas include letting Americans deduct health insurance costs, allowing doctors to be paid for results rather than treatments, reducing abusive lawsuits against health providers, creating health savings accounts, and increasing competition by allowing health insurance to be sold across state lines.

Nearly every poll shows the healthcare law has never been popular with a majority of Americans. That’s likely because it was rammed through in a partisan process, rather than one built on consensus.  And still today, the bill’s advocates continue to use earth-scorching, divisive tactics to defend the law’s unconstitutional flaw. Instead, let’s reform health care while still respecting our nation’s foundational document.

I recognize that many of the bill’s advocates believe, as I do, in improving the health care system. However, as Daniel Webster once said, “Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions.”


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