Why Judge Vinson Did Us a Favor

February 14, 2011
Why Judge Vinson Did Us a Favor
The Unconstitutionality of Obamacare
By MARK SCARAMELLA

Why does an outback writer in Boonville, Mondocino county, California,  have to write on a left-wing website about how a right-wing judge did the left -- and the American public -- a favor?

Why do I have to explain to local liberals that Obamacare, especially its "mandatory health insurance" provision, is unsupportable -- even if the wonderful Barack Obama proposed it?

I had to turn my microscope way up to find any decent liberal, progressive, left-wing or single-payer-advocate commentary about Florida Federal Judge Roger Vinson's recent ruling tossing the entire Obamacare sham out on Constitutional grounds because, Judge Vinson said: forcing people to buy crappy insurance is unAmerican. (Ok, Vinson didn't call it "crappy." I did.)

Let's begin with former health insurance PR man Wendell Potter who wrote last year that the key provision in Obamacare -- that millions of Americans would be REQUIRED to buy health insurance -- was the only way the Obama administration could get the bill past the insurance companies:

"Many insurance executives were wary of such a mandate because they don't like the government mandating anything, especially those pesky state mandates that force them to include certain benefits in the policies they sell. Advocates of an individual mandate eventually brought the skeptics, including many of AHIP's [American Health Insurance Plan's] board members, around to their way thinking by persuading them that insurers could make billions MORE [my emphasis] in profits if every American had to buy an insurance policy from them. Now you know the real reason behind AHIP's shift from neutrality on the issue to full-fledged support. It's all about the money."

After Judge Vinson's ruling was issued last month, occasional CounterPunch contributor Marshall Auerback wrote that "If we had wanted incremental improvements to HEALTH CARE there are nearly infinite combinations of small policy changes we could have pursued ­ without involving insurers at all. And Dems celebrating this great victory by Wall Street were both laughable and hugely disingenuous."

Joe Firestone of fiscalsustainability.org, who obviously read the bill -- as opposed to Nancy Pelosi who famously said "We have to pass the health care bill so you can find out what is in it" -- remarked:

"Folks, [Obamacare] was a bad bill. It should never have been passed. Its negative elements far outweigh its positive elements. Its claim that it will cover 32 million people is nonsense. The states are broke. They can't serve the additional people on Medicaid envisioned by the bill. That's 15 million of the 32 million projected covered. Of the other 17 million, many will not sign on because the very rapid price increases we've seen from the insurance companies will make it much more "rational" for people to accept the mandate penalties or seek waivers than to actually buy the bottom level of nearly useless insurance they're being forced to buy.

"I know this bill is marginally improving the situation for some Americans now. It's allowing some people, mostly middle class people to keep their kids on their insurance for a few more years. And some as yet miniscule number of people have been able to get insurance through the risk pool, where insurance is allowed to be way over-priced by the provisions of the new bill. I've outlined why this bill should have been defeated in December 2009. The final version of the bill was virtually the same as the version I criticized here :"

Then we looked at Judge Vinson's actual ruling.

Most of Vinson's lengthy judgment is a pseudo-academic lecture on the Constitution, discoursing at length on the history of the "commerce clause" and the "necessary and proper clause" intermingled with a close legalistic reading of the "Patient Protection and Affordable Care Act."

Vinson, a right-wing Reagan appointee whom some describe as a "Tea Partier," first concludes that the insurance mandate part of Obamacare is unconstitutional. Then, citing the fact that Obamacare has no "severability clause," Vinson tosses the tiny baby out with the swimming pool full of bathwater.

Some conventional critics (even including Mr. Auerback) have said that the Obama administration blundered ("sloppy drafting," said Auerback) by not including a "severability" clause in the Obamacare legislation.

Not so, says Judge Vinson. The omission was intentional.

"The defendants have asserted again and again that the individual mandate is absolutely 'necessary' and 'essential' for the Act to operate as it was intended by Congress," said Vinson. "I accept that it is." After some more detailed analysis, Vinson added, "In other words, the severability clause was intentionally left out of the Act."

So Judge Vinson is agreeing with the health insurance companies that without the mandate, the health insurance business would be in trouble because they might have to provide slightly better insurance without getting millions of new customers. And we can't have that.

Further on, Judge Vinson adds, "For the reasons stated, I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate. That is not to say, of course, that Congress is without power to address the problems and inequities in our health care system. The health care market is more than one sixth of the national economy, and without doubt Congress has the power to reform and regulate this market."

By referring to the "health care market," Judge Vinson is essentially ignoring single-payer style reformers and is trying to save the insurance companies from having to live with the minor reforms in Obamacare without getting billions in profits from millions of Americans who will be forced to buy (very bad) "health insurance."

As Mr. Auerback concludes: "…a Medicare buy-in would bring the US health care system closer to the 'ideal' low-cost, universal (single-payer) insurance plan. Highly unlikely to occur, but if the Roberts court [i.e., the Supreme Court which most legal observers think will issue the final word on Obamacare] does force us back to square one, shouldn't we try to get it right this time?"

Obamacare is a classic example of a bad law being worse than no law. And a judicial declaration saying that forcing people to buy bad-to-non-existent health insurance on penalty of fines is unconstitutional is good no matter what the politics of the judge are.


Mark Scaramella is a regular contributor to counterpunch.org and the managing editor of the Anderson Valley Advertiser in Boonville, California (www.theava.com). He can be reached at (themaj@pacific.net)

http://counterpunch.com/scaramella02142011.html

Do you this the cop-killer should be paroled?

http://www.nydailynews.com/ny_local/2011/02/15/2011-02-15_heartbreaking_job_for_heros_widow_she_writes_to_keep_killer_in_prison.html

Check out some of the comments here.

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This is a congressional hearing that needs to heard and fixed before the 2012 election

http://pajamasmedia.com/blog/military-voting-accountability-starts-today/

Should have been done before the 2008 election and the states should be
held to account for what they failed to do and have failed in also
cleaning up the election rolls.

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Old Guard Moving Aside at CPAC

Old Guard Moving Aside at CPAC
by Kelley B. Vlahos, February 15, 2011

"The United States has the reverse Midas touch – everything we touch turns to crap."
- Military historian Bill Lind, talking on American foreign policy to a standing-room-only crowd at the Conservative Political Action Conference on Friday.

Something unusual has happened at the annual CPAC confab in Washington. It's looking less and less like the conservative revival tent of the days when the "Moral Majority" and Phyllis Schlafly's counter-counter culture crusades set the tone, and more like a battleground for competing right-of-center ideals.

Even Newt Gingrich and Ann Coulter -- who first emerged in the '90s as rock stars among right wing youth, are looking, well, a little played and misfit in the emerging milieu.

While I cannot speak for the first 30 years of CPAC, I know that in the last 10 years there has never been a display of friction among conservative attendees as witnessed in the halls and on stage at this year's event. Libertarian youth, seemingly motivated by two issues -- the government's mishandling of the economy and its interventionist foreign policy -- flooded the ranks for the second year in a row. But this year they were seemingly more accepted by the crowd, and by the growing Tea Party presence in the crowd, and they were able to influence the weekend's events.

In what way? For starters, they were able to -- for the second time in the last two years -- push Rep. Ron Paul, R-Texas, to the top of the CPAC straw poll for presidential contenders. But the libertarians also made news by staging a walkout of the main ballroom when former Sec. Def Donald Rumsfeld was given the "defender of freedom award" on Thursday. Those who remained, heckled Rumsfeld and former Vice President Dick Cheney, who appeared on stage to give him the award, and was called a "draft dodger" and "war criminal" in the ensuing outbursts. Sure, the hecklers were swiftly tossed out and booed while the majority of the crowd engaged in the requisite "USA! USA! USA!" to drown them out, but the fact any of this had transpired on the floor of the CPAC ballroom was somewhat extraordinary.

 

One could say it all began before the 2008 election, when Paul startled the GOP establishment by winning primaries and snowballing the disaffection among libertarian-leaning Republicans, some of them now considered "Tea Partiers," into a real live movement, if not cult status. As the GOP front runners poked fun publicly at Paul's positions, particularly on foreign policy and war, his support grew. It blew up at the GOP national convention, when Paul's base threw an alternative "Rally for the Republic," attended by thousands of voters who more or less would have been card-carrying Republicans if the party had done its job right.

Since then, groups like the Campaign for Liberty have poured tons of resources into recruiting the college set for Paul's cause. Tapping into their common sense attitudes about war and the social issues of the day -- like say, getting government out of one's personal business -- plus their energy and sense of rebellion, Campaign for Liberty and groups like Students for Liberty have turned out more attendees to CPAC in the last two years than any of the tired GOP proto-presidents put together. According to Dave Weigel over at Slate, over 1,000 kids affiliated with Campaign for Liberty attended this year, and likely helped Paul take 30 percent of the straw poll.

Of course, one could point out, like Weigel did, that the organization spent a lot of money to get those kids to Washington. But here's the fix: for the second year in a row, the students were willing to come, and more so, instead of just taking the ride, many actively participated. And loudly. As a result, the panel discussions, and even some of the speeches, seemed to be gelling more around an anti-interventionist spirit for the first time in recent memory. Thanks to a tanking economy, a losing war in Afghanistan, massive debt and a new spirit of limited government all around, criticizing the war machine at CPAC didn't automatically qualify someone for sneers and jeers by the conservative elite.

Instead, panels like "Cut Pentagon Spending, Strengthen America," "Should Defense Spending Be Open to Budget Cuts?" and "American Empire: Before the Fall," were not only given prime real estate during Friday's schedule but they were packed with attendees. It gave smart commentators like Bill Lind to make brazen comments like the one at the top of this column, and draw wild applause from the audience to boot.

"The invasion of Iraq was not conservative, it was anti-conservative," Lind said to a burst of applause during the defense-cutting panel. And then carrying on with his argument against the ever-expanding Military Industrial Complex: "You will not reform the Pentagon until you stop the money flow."

In years past, particularly after 9/11 when the Republican establishment pretty much wed itself to the Global War on Terror, one would have never a US Marine veteran standing up in front of a CPAC audience, calling out the military as bloated and antiquated in its thinking, and the war policies in Iraq and Afghanistan a mistake. On Friday, veteran Jake Diliberto, founder of Veterans for Rethinking Afghanistan, told a standing room only audience that the "national security apparatus that exists today is dysfunctional to the point that its doing more harm than good." Earlier, he told Antiwar.com that "we have our own little civil war thing going on here in the conservative movement," over war and national security, and it seems to playing out right there in the belly of the beast.

Edward Kenney agreed. He said he had no problem handing out invitations Friday to a pair of panel discussions hosted by the Afghanistan Study Group, which said in a September report that it was time to withdraw troops from Afghanistan. The group has culled its members from the moderate Washington foreign policy elite and could hardly be called "conservative." However, at CPAC, "people are receptive," Kenney told Antiwar.com. "Generally, people are more on the libertarian side."

Of course that did not mean that the fear mongering, Islamophobic hawks who have been nesting in the conservative movement and at CPAC since 9/11 weren't out there still guarding their roosts. While indeed, Afghanistan and Iraq are shopworn subjects, the "creeping influence" of Islamic sharia law on the west is a popular one, hitting all the right notes of this conservative audience (minus the libertarians): their fear of Muslims, the belief that Barack Obama is a secret, non-American Muslim, and the idea that we are fighting a war against insane killers who blindly hate us for our freedom, and not because of our failed foreign policies over the last 40 years.

 
(Photo by James Bovard)

Fittingly, there were two "Ground Zero Mosque" films being circulated to titillate conservatives who had spent their summers railing against the Park 51 Islamic Center in Manhattan. One, Sacrificed Survivors: The Untold Story of the Ground Zero Mega-Mosque, by PRB Films and the Christian Action Network, and The Ground Zero Mosque: The Second Wave of The 9/11 Attacks, produced by the Stop Islamization of America (SIOA) and American Freedom Defense Initiative (AFDI), the director of which is none other than jihad hunter Pamela Geller. She hosted no less than two screenings of the film, which luridly appropriates gruesome footage of individuals falling from the Twin Towers on 9/11 -- it was raining bodies, goes the narration -- to generate outrage against a religious center than has yet to be built.

 
Angela Keaton (photo by James Bovard)

"That's why it's too soon to build mosques in general," declared one audience member after seeing a clip of the film, according to TPM. Free pretzels and red meat -- that was all the overflowing crowd at Geller's panel apparently needed. "Moderate Muslims don't exist," said another.

CPAC stalwart and fellow jihad hunter David Horowitz, whose booth sponsored a creepy "Palestinian Wall of Lies" in the exhibition hall, used his speech to fuel a conspiracy that the Muslim Brotherhood was infiltrating, get this, CPAC. Suhail Khan, a board member of the American Conservative Union, which runs CPAC, has been dodging Horowitz and Geller & Company for years on circumstantial charges that this Republican operative, who has worked as a Republican aide on Capitol Hill and in the Bush White House, is connected to pro-terrorist mosques in the U.S. Horowitz used the events in Egypt this week to continue his campaign against Khan, and Grover Norquist, another Muslim "sympathizer" that Horowitz's gang can't stand (video and transcript here).

"Over the last 10 years, the influence of the Muslim Brotherhood has spread throughout our government," Horowitz declared to a rapt audience in the ballroom.

Then there are the Republicans who want you to forget Afghanistan and Iraq and instead be convinced that most Americans are staying awake at night worrying about Iran, and that in general, they "don't feel secure." A poll issued by SecureAmericaNow.org, a group that had a hyperbolic 15-year-old girl channeling Liz Cheney serving as spokeswoman in the exhibition hall, charged that the majority of America sees terrorism as the greatest threat to our country, followed by Barack Obama himself.

"We must put these issues of national security back into the national agenda," said GOP pollster and Secure America Now spokesman Pat Caddell, who issued the poll numbers in a ballroom panel on Friday titled "Public Attitudes Toward Security" (video here).

He and his panel-mates even managed to tie in rising public "anxiety" they found in their poll with the Park 51 mosque. "The mosque issue was really the first signal that Americans feel insecure," said neoconservative columnist Joel Mowbray, who was moderating.

Really, it was the first signal that the right wing, enjoined by some factions of the Tea Party, were going to shift focus from warmongering overseas, an increasingly loser subject with conservatives, to fear mongering of the "terrorist menace" on the home front, just in time for the 2010 elections. Now, it's onward to 2012.

This of course all clashes head-on with the aforementioned growing libertarian influence at CPAC.

Strong support, hooting and hollering, booing and applause for each other's cause underscore that this battle for the direction of foreign policy and national security is far from over. But if the successful walk-out of a formerly revered Republican icon and the heckling of a neo-conservative ex-veep is any indication, young antiwar libertarians are fully and openly engaged for the long war, no longer at the margins, but on conservatives' most hallowed turf.

http://original.antiwar.com/vlahos/2011/02/14/cpac-2011/

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