M2RB: Robert Palmer
Doctor, doctor, give me the news
I’ve got a bad case of lovin’ you
No pill’s gonna cure my ill
I’ve got a bad case of lovin’ you
By David Catron
The "Affordable Care Act" might die a death of a thousand legal
cuts.
Last June, upon learning that the Supreme Court had ruled
Obamacare's individual mandate constitutional, many observers were
forced to concur with the Dickens character who opined, "If the law
supposes that… the law is an ass." Yet, the increasing number of
anti-PPACA lawsuits that have been receiving serious attention from
the courts suggests that the legal system may not be as irrational
as it seemed when Chief Justice John Roberts began braying from the
bench on June 28.
If this seems Pollyannaish, consider the fate of
McCain-Feingold.
In December of 2003, many were just as shocked and dismayed when
the Supreme Court upheld the Bipartisan Campaign Reform Act (BCRA)
as they were by the bizarre Obamacare decision. BCRA was an
outrageous assault on the First Amendment, and yet the Court
allowed most of its provisions to stand. Yet, anyone who had
predicted that McCain-Feingold, as this abomination was more
commonly known, would be moribund a mere six years and one month
after the Court had ruled it constitutional would have been
disregarded as hopelessly naïve.
Nonetheless, the opponents of McCain-Feingold launched a series
of legal attacks that met with little success until 2007, when the
Court ruled in FEC v. Wisconsin Right to Life. In that
decision, the justices ruled unconstitutional the law's
proscription against campaign ads mentioning candidates by name
within a certain period prior to an election. Then, in 2008, the
Court voided another crucial provision in Davis v. FEC.
Finally, in early 2010, the Court delivered the coup de gras with
its landmark ruling in Citizens United v. FEC.
Are the legal foes of Obamacare as numerous and determined as
those of McCain-Feingold? The answer to that question is an
unequivocal YES. Their numbers are greater, they are far better
financed and they are demonstrably more dedicated to the cause. In
fact, the dragon's teeth sown by the Court's misguided June ruling
produced a spate of fresh troops to reinforce those already on the
legal battlefield. There are now at least forty legal challenges to
the law pending in federal courts involving its various provisions
as well as its implementation.
Moreover, the Court just
resurrected one of the original challenges to Obamacare by
ordering the Fourth Circuit Court of Appeals to reconsider
arguments on which it didn't deign to rule in Liberty
University v. Geithner last year. The Fourth Circuit's pretext
for not ruling on the University's claims was that the federal
Anti-Injunction Act (AIA) barred the Appeals Court from ruling on
the mandate. The Supreme Court's June ruling, however, held that
the AIA doesn't apply. Thus, the Appeals Court must give Liberty
another hearing.
Liberty's case differs from the lawsuits upon which SCOTUS ruled
last summer in that the University challenged Obamacare for its
unequal treatment of religious dissenters. As the original
complaint states,
"Liberty University is a Christian educational institution and
Plaintiffs Waddell, Merrill and Helgeson are Christians, but none
of the Plaintiffs is 'a member of a religious sect or adherent of
established tenets or teachings' as described in Section 1501 and,
therefore, all are prohibited from exercising a religious exemption
under the Act."
Another form of religious meddling prompted by Obamacare, the
HHS contraception mandate, has also spawned dozens of lawsuits.
Among the Catholic organizations suing over this outrage are the
Archdiocese of Washington, D.C., the Archdiocese of Atlanta, the
Archdiocese of Miami, and the Archdiocese of Pittsburgh. This
revolt also includes University of Notre Dame and, as the Becket
Fund puts it,
"hospitals, universities, businesses, schools, and people all
speaking with one voice to affirm the freedom of religion
guaranteed in the Constitution."
Among the businesses to which the Becket Fund refers are
Hercules Industries, Weingartz Supply Company, and Tyndale House.
And the courts are taking their challenges seriously. All three
have won injunctions temporarily preventing the government from
enforcing the HHS mandate. In July, Judge John Kane of the U.S.
District Court for the District of Colorado enjoined the government
on behalf of Hercules. And, within the past month, similar
injunctions were issued protecting Weingartz and Tyndale from the
depredations of HHS.
Another provision of Obamacare being challenged in court is the
Independent Payment Advisory Board (IPAB). IPAB, you will recall,
is Obamacare's
rationing board. When PPACA was signed into law, Congress
transferred much of its power to this committee, which will decide
what services will be approved by Medicare and how much the
providers of those services will be paid. The Goldwater Institute
has
filed a lawsuit, Coons v. Geithner, which challenges
the constitutionality of IPAB under the separation of powers
doctrine.
And, no list of Obamacare lawsuits would be complete without
mentioning the Oklahoma lawsuit challenging the illegal IRS rule by
which the Obama administration will attempt to funnel tax credits
and subsidies through federally-created exchanges, despite the
law's stipulation that such premium-assistance can only be offered
via state-run exchanges. This litigation is, in many ways, the most
important of all the lawsuits. Without its insurance exchanges, and
the accompanying subsidies, Obamacare will crash and burn.
These lawsuits involving the illegal IRS rule, IPAB, the
contraception mandate, religious discrimination, etc. by no means
exhaust the list of Obamacare challenges. This should inspire hope.
It took the good guys six years to bring down McCain-Feingold. With
a little luck, and a lot of patience, the good guys could well
prevail against Obamacare as well. One hopes, of course, that it
will not take six years. Still, "the law's delay," as Hamlet
lamented, must be endured unless the "bare bodkin" seems a better
choice.
Unfortunately, an important factor in all of this involves the
longevity of the remaining Supreme Court justices who heed the
Constitution. If one or more of these is promoted to that great
tribunal in the sky, and the president is able to appoint another
administration lackey like Elena Kagan to the Court, Obamacare may
well be safe. On the other hand, if any of the serious challenges
to PPACA arrive on the docket before any of the "conservative"
justices shuffles off this mortal coil, the legal system may yet
prove itself not to be an ass after all.
About the Author
David Catron is a health care
revenue cycle expert who has spent more than twenty years working for
and consulting with hospitals and medical practices. He has an MBA
from the University of Georgia and blogs at Health Care BS.
Bad Case Of Loving You (Doctor, Doctor) - Robert Palmer
Whooaaaaa
The hot summer night fell like a net
I’ve got to find my baby yet
I need you to soothe my head
Turn my blue heart to red
Doctor, doctor, give me the news
I’ve got a bad case of lovin’ you
No pill’s gonna cure my ill
I’ve got a bad case of lovin’ you
A pretty face don’t make no pretty heart
I learned that, buddy, from the start
You think I’m cute, a little bit shy
Momma, I ain’t that kind of guy
Doctor, doctor, give me the news
I got a bad case of lovin’ you
No pill’s gonna cure my ill
I got a bad case of lovin’ you
Whooaaa
I know you like it, you like it on top
Tell me, momma, are you gonna stop?
You had me down, 21 to zip
Smile of judas on your lip
Shake my fist, knock on wood
I’ve got it bad, and I’ve got it good
Doctor, doctor, gimme the news
I got a bad case of lovin’ you
No pill’s gonna cure my ill
I got a bad case of lovin’ you
The hot summer night fell like a net
I’ve got to find my baby yet
I need you to soothe my head
Turn my blue heart to red
Doctor, doctor, give me the news
I’ve got a bad case of lovin’ you
No pill’s gonna cure my ill
I’ve got a bad case of lovin’ you
A pretty face don’t make no pretty heart
I learned that, buddy, from the start
You think I’m cute, a little bit shy
Momma, I ain’t that kind of guy
Doctor, doctor, give me the news
I got a bad case of lovin’ you
No pill’s gonna cure my ill
I got a bad case of lovin’ you
Whooaaa
I know you like it, you like it on top
Tell me, momma, are you gonna stop?
You had me down, 21 to zip
Smile of judas on your lip
Shake my fist, knock on wood
I’ve got it bad, and I’ve got it good
Doctor, doctor, gimme the news
I got a bad case of lovin’ you
No pill’s gonna cure my ill
I got a bad case of lovin’ you
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