Individuals and States Gear Up to Fight Obamacare

America took a big lurch to the left in March with the passage of the U.S. Senate health care reform bill. The president and congressional leaders overcame broad bipartisan opposition, and overwhelming opposition by the people (a CNN poll showed 59% opposed, with 39% in favor), to get it on the books. Our country now looks less like America, and more like the countries of Europe.

Within minutes of the signing ceremony, no fewer than thirteen states filed suit in federal court challenging the new law on constitutional grounds. Most of these challenges involve the individual mandate, which requires everyone to purchase a government approved insurance plan.

There are two prongs to this challenge. One is to assert a limit on the tortured interpretation of the commerce clause – any individual has standing here. The other asserts the authority of existing state laws that protect the rights of individuals to make their own arrangements for medical treatment – in this case, the several states have stepped into the arena adding a claim of state jurisdiction. Good times!

The seeds of the state level resistance actually germinated right here in Arizona! Concerned over the expansion of government run medical programs, a Phoenician orthopedic surgeon named Eric Novack, and his colleague Dr. Stephen Singer, drafted an amendment to the state constitution that would guarantee two things, and two things only: 1, that all Arizonans have the right to spend their own money to obtain legal health care services; 2, that all Arizonans have the right to not participate in any health care system, of any type.

They drafted a referendum that appeared on the 2008 ballot. The effort was well outspent by special interests, and was defeated by a mere one half of one per cent of the vote. Now here is the interesting part. The same concern existed in other states, and the language of the Arizona referendum was used in thirty-six of them for similar laws. Some were constitutional amendments, as in Arizona; others were statute laws passed by state legislatures, as in Virginia.

Meanwhile, back in Arizona, Dr. Novack and his persistent team presented their idea to the Arizona legislature in 2009, which referred it to the 2010 ballot as an initiative. Some of the wording was modified to allay concerns held by objecting special interests, including the Arizona Health Care Cost Containment System (AHCCCS), Arizona’s Medicaid agency, which claimed that the referendum would somehow interfere with its ability to provide benefits.

The passage of the Senate health care bill, commonly known as “Obamacare”, will surely generate much enthusiasm for the initiative, known as the “Arizona Health Care Freedom Act.” In fact, If the Arizona constitution outlaws the forcing of citizens into unwanted contracts or purchases, it will pose a direct challenge to one of the more odious aspects of Obamacare. The issue will be resolved in court, probably in the Supreme Court of the United States since there may be as many thirty seven states challenging the mandate. When the federal circuit courts of appeal arrive at disparate opinions, the Supreme Court usually steps in to resolve the issue.

These cases could inspire court challenges to other aspects of Obamacare.

The next congress will no doubt address Obamacare. Though president Obama would veto a total repeal, as more of it comes to light, lawmakers could repeal the pieces that will be found particularly unpopular. This huge push-back, inspired by the huge overreach of the legislation, may turn the tide of increasing government size and control.

If president Obama and congressional leaders wanted a fuzzy-bunny bipartisan bill, they could have had one. There are many Republicans who would have gone along with anything short of handing over the industry, but they were shut out. Ironically, Democrat’s problem was not the Republicans, there were not enough of them to matter. Their problem was fellow Democrats who knew that a vote for the wildly unpopular bill would threaten their re-election chances, even in many of the “safe” districts. Eventually, through bribes, threats of primary challenges and ethics complaints, they got it done, and Nancy Pelosi giggled through media interviews.

Japanese military officers were giddy after the successful attack on Pearl Harbor. The great Admiral Isoroku Yamamoto, who saw the big picture, said the following after the attack, “I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve.” Yep, the Americans are now awake. It’s not over.

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