The Republican Lawyer Blog : Health Care

Obamacare Ruling Post-Mortem Thoughts

Michael Collins — Mon, 02 Jul 2012 13:47:00 GMT

At a Federalist Society event on Capitol Hill, two attorneys who spoke at the RNLA’s 2012 National Policy Conference and were intimately involved in the Obamacare litigation provided their insights into last week’s decision.

Michael Carvin, who represented the National Federation of Independent Business before the high court, spoke about the majority opinion upholding the Obamacare individual mandate.

Carvin remarked that it is hard not to be cynical about the process, with the Court finding the individual mandate exceeds Congress’ commerce power, but somehow fits within its taxing power.

He believes that the court effectively changed the individual mandate statute, as on its face, the statute establishes fines as a consequence to the mandate. “No rational person can think this wasn’t a re-write,” he said.

Further, Carvin was disillusioned about re-writing the statute to be a tax, considering Congress and President Obama explicitly told the American people the individual mandate was not a tax. He claimed that deferring to Congress and the Administration on the individual mandate being a tax is like “deferring to Bernie Madoff because you believe in the free market process.”

Carrie Severino, Chief Counsel of the Judicial Crisis Network and author of an amicus brief in the Obamacare case, also spoke at the event.

She refuted comments that have labeled Chief Justice Roberts’ opinion as “statesmanlike,” saying that such actions are judicial activism. “Decisions based on considerations other than the law itself” are judicial activisim, Severino said, citing a definition promulgated by Judge Robert Bork.

Despite the setbacks for opponents of the individual mandate in the ruling, Severino proffered that there are three “silver linings” that those on the losing end could take away from the holding.

First, she noted that the holding exposes the dishonesty in comments by congressional Democrats and President Obama that the individual mandate does not constitute a tax. As Chief Justice Roberts declared, the individual mandate only stands because it is an exercise of Congress’ taxing power.

Second, she believes the holding provided some key narrowing in commerce clause jurisprudence. Despite upholding the individual mandate, Chief Justice Roberts provided a fifth vote for establishing that there is an end to Congress’ oft-cited commerce power, which could be applied in future Commere Clause cases.

Finally, Severino noted that the decision has created an opportunity for citizens to become educated on constitutional issues. She proffered that conservatives benefit when Americans learn more about the constitutional structure and that Congress is a branch of limited, enumerated powers under Article I.

While on the same side of the case as Severino, Carvin said that he is “not of [the] silver lining view.” He called the outcome a “fundamentally frustrating episode” and repeatedly called the Chief Justice’s reasoning “sophistry on stilts.”

However, he did say that the politics may benefit Republicans, and that he hoped this November’s election leads to the decision that many contend Chief Justice Roberts avoided making – striking the individual mandate.

I'm Back

Chris Berg — Fri, 26 Mar 2010 19:46:00 GMT

My friends, after three long months I’ve decided to return to the blogosphere. Alas, I’m neither tanned nor well rested. The ever evolving campaign finance laws have kept me burning the midnight oil, and the nightmare that is Obamacare has kept me awake many nights. Out of principle I’ll remain this lovely pallor because I won’t pay a 10% federal tax at the tanning booth - not that this is something I have ever partaken in, two minutes in the sun and I’m a permanent shade of pink or red.

So why am I back?

The current state of the law is changing so rapidly we all need to do a better job staying informed. Just today decisions were released in SpeechNow.org v. FEC and RNC v. FEC. These are the most significant campaign finance decisions since the release of Citizens United v. FEC on January 21st. At least one of them, RNC v. FEC will be championed to the Supreme Court by Ted Olson, a recipient of the Republican Lawyer of the Year award. When we look beyond the realm of campaign finance litigation to what’s occurring nationwide as Republican Attorneys General defend their states and citizens against mandates imposed by the recent federal health care legislation, I feel there are important legal issues that need to be highlighted, and I believe this blog provides an excellent venue for that debate.

So where have I been?

In January I accepted a new position with a non-profit organization in Washington DC. In February I was elected chairman of my local county party. I’ve been organizing a national youth leadership conference and continuing to work on campaign finance issues.

While I no longer work for the Republican National Lawyers Association I still believe in the important work that they do. This forum has provided us an important venue to share election law happenings and discuss the events of the day. I hope that my commentary will help keep you abreast of the rapid changes in this important area of the law. As always my comments on this blog are my own and do not necessarily represent the views of the Republican National Lawyers Association or my current employer.

Illinois Supreme Court Strikes Down Tort Reform Law

Justin Riemer — Wed, 10 Feb 2010 13:57:00 GMT

The Madison Record reports that the Illinois Supreme Court struck down the "state's historic medical malpractice reform law" in Lebron, a Minor v. Gottlieb Memorial Hospital. The law at issue set caps on noneconomic (pain and suffering) damages in medical malpractice cases to $500,000 against doctors and $1 million against hospitals. Specifically, the court found "that the limitation on damages violates the separation of powers clause of the Illinois Constitution . . . by permitting the [Illinois] General Assembly to supplant the judiciary's authority in determining whether a remittitur is appropriate under the facts of the case." (For non-lawyers, a remittitur is a ruling by a judge that lowers the amount of damages awarded by the jury.) Please click here for the opinion.

The Decatur Herald-Review notes that the law had solved the huge problem in the state of skyrocketing medical malpractice rates, "especially for those health professionals in high-risk specialties such as obstetrics and neurosurgery." This, as what happens in other states without caps, caused a flight of doctors out of the state. "In many rural areas of the state, high-risk specialists were hard to find" before the passage of the law.

The Wall Street Journal also reported on the decision:

The ruling is a setback for supporters of tort-reform efforts in Illinois, including the state's doctors and hospitals. It was criticized by pro-business groups nationwide, which long have claimed that medical-malpractice suits are a major contributor to rising health-care costs.

"This is very disappointing and frustrating," said Ed Murnane, president of the Illinois Civil Justice League, a pro-business group.

Plaintiffs' lawyers, meanwhile, hailed the ruling. "The Illinois Supreme Court has decided that the health-care crisis can not be solved by further hurting the patients who are victims of medical errors," the Illinois Trial Lawyers Associations said in a statement.

Many state supreme courts have upheld the constitutionality of damage limits, and the high courts in Times New Roman, Kansas, and Missouri are weighing the issue.

The Illinois case is "part of a national trend by the plaintiffs' bar to challenge damage caps," says Mark Behrens, a Washington, D.C., defense lawyer with Shook, Hardy & Bacon LLP who tracks liability trends nationwide. Mr. Behrens says that the other courts opposed to caps may cite the decision as support, but "I doubt it will change many minds."

Unsurprisingly, "[t]he decision broke strictly along party lines," with the Democrats in the majority and the Republicans voting to uphold the caps.

McConnell: Start Over and Get It Right

Matt Suermann — Thu, 10 Dec 2009 18:47:00 GMT

With the Senate version of the health care bill making its way though the Senate, Senate Republican Leader Mitch McConnell has been working hard to educate other Senators that the bill needs to have a restart and allow for a process that allows for the bill to be done right. His office issued the following release today laying out why this bill is wrong for America.

Start Over and Get it Right

'The majority leader said we'd be working every weekend. We take him at his word. We expect to be here this weekend - and we look forward to it. Republicans are convinced there's nothing more important we could do than to stop this bill and start over with the kind of step-by-step reforms Americans really want'

WASHINGTON, D.C. - U.S. Senate Republican Leader Mitch McConnell made the following remarks on the Senate floor Thursday regarding the importance of getting it right on health care reform: "The American people have seen what Democrats in Congress plan to do with seniors' health care. They've looked on in disbelief as almost every Democrat in the Senate voted again and again to slash Medicare. "Now they're watching in disbelief as Democrats float the idea of herding millions more into this near-bankrupt program as part of a backroom deal to force their plan for health care on the American people by Christmas. "Every day it seems we hear new revelations about the secret conference room deliberations where Democrats are frantically working to get their sixty votes by Christmas. And every day we hear about some new idea they've come up with for creating a government plan by another name. "This week's version would have the Office of Personnel Management running the program - an idea that was shot down almost as soon as it was announced by a former OPM director, who said it couldn't be done. "I flat out think that OPM doesn't have the capacity to do this type of role." "This is precisely the kind of approach Americans are tired of in Washington - and this is precisely the kind of health care plan Americans didn't want. "Seniors thought they could expect lower costs. What they're getting instead is an assault on their Medicare. Small business owners thought they could expect lower costs. What they're getting instead are higher taxes, stiff fines and costly mandates. Working Americans thought they'd get more efficiency, less fraud, cheaper rates. What they're getting instead are new bureaucracies and higher costs. "Business leaders from across the country enthusiastically support the idea of health care reform. They know better than anyone that costs are out of control and that something needs to be done. But they've read the bill Democrats in Congress have come up with. They're telling us this isn't it. "Not only won't this bill solve the problem, they say. It makes existing problems worse. "The Vice President of the U.S. Chamber of Commerce was here yesterday. He said there's a desperate need for reform - reform that bends the cost curve down. He said that unfortunately this bill fails the test. "He said this bill will only lead businesses to lower wages, decrease working hours, reduce hiring, and cut jobs. He said it adds to the deficit. It adds to the debt. It includes massive new spending programs and entitlements, and incredibly, as I've noted, it also borrows from existing entitlement programs. "Businesses look at this bill and they see:

§ Half a trillion dollars in new taxes

§ As many as 10 million employees at risk of losing their coverage

§ Crushing new mandate

"This is not reform.

"This bill doesn't solve our problems - it spreads them. "That's why seniors don't like this bill. That's why job creators don't like this bill. And that's why public opinion has dramatically shifted against this bill. "Americans want reform. But this is not the one they asked for. This bill is fundamentally flawed, and it can't be fixed. "Americans want us to stop. They want us to start over and get it right. "Democrats should stop talking at the American people and start listening to them. "Republicans are prepared to provide a platform for that debate for as long as it takes. "The majority leader said we'd be working every weekend. We take him at his word. We expect to be here this weekend - and we look forward to it. "Republicans are convinced there's nothing more important we could do than to stop this bill and start over with the kind of step-by-step reforms Americans really want. "We have amendments. We want votes. We've been waiting since Tuesday to have more votes. We're eager to continue this debate."

The Price of Health Care - $300 Million

Chris Berg — Mon, 23 Nov 2009 14:17:00 GMT

Many news stories have been reporting it took a sweetener $100 million to secure the vote of Senator Mary Landrieu for Harry Reid's health care plan. Senator Landrieu has set the record straight, "it's not $100 million, it's $300 million." Here's the story from the Washington Examiner:

Facing fallout from an apparent sale of her health care vote to Majority Leader Harry Reid (D-NV) and the Democratic Caucus, Senator Mary Landrieu (D-LA) took a shocking approach in response to the payoff allegations: she flaunted it!

To help secure her vote, Reid included a provision in the bill sought by Landrieu to provide increased Medicaid funds for states recovering from major disasters such as 2005's Hurricane Katrina that devastated New Orleans and parts of Louisiana, Mississippi and Alabama. When the bill is closely examined, however, the provision provides immense financial support for only one state: Landrieu's Louisiana.

Landrieu defended the inclusion of the provision and said Republican critics who accuse her of selling her vote for $100 million are wrong and that she has the support of Louisiana Gov. Bobby Jindal (R) and Health and Human Services Secretary Kathleen Sebelius.

Then, in a statement sure to be repeated by Republicans endlessly over the coming weeks of Senate health care debate, the senator flaunted the inclusion of the provision. "I will correct something. It's not $100 million, it's $300 million, and I'm proud of it and will keep fighting for it," Landrieu told reporters after her floor speech. "But that is not why I started this health care debate; I started this health care debate for all the reasons I just mentioned in my statement" on the floor.

The apparent purchase of the senator's vote is already garnering significant response from Republicans as well as taxpayers footing the bill for this provision. The nickname for the provision? "The Louisiana Purchase."

The Private Sector Helps Solve The Government’s Problems

Chris Berg — Fri, 20 Nov 2009 17:35:00 GMT

It was the best of times, it was the worst of times;

it was the age of wisdom, it was the age of foolishness;

it was the epoch of belief, it was the epoch of incredulity;

it was the season of Light, it was the season of Darkness;

it was the spring of hope, it was the winter of despair;

we had everything before us, we had nothing before us;

we were all going directly to Heaven, we were all going the other way.

-- Charles Dickens

Today the Washington Post brings us two stories of private entities conducting government functions. First, the Carlyle Group has been contracted to run Connecticut highway rest areas – this seems like an appropriate partnership. The other, involves the Bill and Melinda Gates Foundation performing a job that the government is failing to do – raise teacher effectiveness.

When a private foundation has to take it upon itself to conduct a governmental function, we really need to ask ourselves whether the government should be expanding into the healthcare business. I hope Pelosi and Reid aren't counting on the generosity of Bill Gates to take on America's healthcare system.

Carlyle Expands into Connecticut Rest Stops

The Carlyle Group said Thursday that it has signed a deal with Connecticut to refurbish and run the state's 23 highway service stops in return for a share of the revenue over the next 35 years.

The District-based private-equity giant and its partners will invest $178 million in the state's roadside service centers as part of the agreement, which will include putting Subway restaurants as well as Dunkin' Donuts locations in the centers, according to a Carlyle spokesman. Dunkin' Donuts is owned by Carlyle.

Can Bill and Melinda Gates Save Our Schools

The Bill & Melinda Gates Foundation announced Thursday a $335 million investment in teacher effectiveness, funding experiments in tenure, evaluation, compensation, training and mentoring in three large school systems and a cluster of charter schools.

The grants amount to one of the largest privately sponsored school improvement initiatives in recent years. Through them, the foundation aims to push policymakers to put more weight on teacher performance than qualifications.

Hillsborough County schools, in the Tampa area, will receive $100 million; Memphis schools, $90 million; Pittsburgh schools, $40 million; and five charter networks in Los Angeles (Alliance for College-Ready Public Schools, Aspire Public Schools, Green Dot Public Schools, Inner City Education Foundation and Partnerships to Uplift Communities Schools), $60 million.

The initiative, including $45 million to study how to measure teacher effectiveness, is of the same magnitude as Obama administration reform efforts.

George Will on Constitutionality of Health Care Reform

Justin Riemer — Thu, 19 Nov 2009 17:59:00 GMT

Every so often George Will writes something that really strikes a chord. (Not that he isn't usually clever and insightful.) Will has written an excellent piece on whether the proposed health care legislation in Congress would pass constitutional muster. Will looks at the cases of Gonzales v. Oregon (case involving Oregon's "right to die" statute) and Horne v. Flores (a case where an Arizona English immersion policy conflicted with federal regulations requiring bilingual education). In both cases the Supreme Court sided with the states, citing federalism concerns that those areas were typically areas of state responsibility.

No one doubts that Congress has considerable sway in passing laws via the Commerce Clause. The Supreme Court has upheld laws that (to a non-lawyer at least) would appear to have nothing to do with interstate commercial activity. However, as Will points out, there is a difference between regulating activities that people "choose" to engage in rather than "requiring" someone to engage in that activity. Please click here for the piece.

Is that Cadillac Really a Clunker? An Analysis of UAW Health Care Plans

Chris Berg — Thu, 19 Nov 2009 16:40:00 GMT

RNLA members and former Department of Labor officials Vinnie Vernuccio and Bruce McElvein have a great article at the American Spectator today discussing the perilous state of the UAW VEBA. They help explain the consequences to UAW retirees.

The United Autoworkers (UAW) and GM are asking the U.S. Department of Labor (DOL) for a chance to play the old shell game. In back alleys the only winner is the person running the game and in this case the UAW is running it while autoworkers and U.S. taxpayers are being duped. DOL can put a stop to this and should insist on an honest game.

For decades the big three automakers, GM, Ford, and Chrysler, signed contracts with the UAW for lavish healthcare benefits. These benefits -- which could even be called "the Cadillac of healthcare benefits" -- extended well after the workers retired.

After years of avoiding dealing responsibly with retiree health care it became obvious to both the automakers and the union that the companies could not afford these extravagant lifetime health care benefits. Each car company individually cut a deal with the UAW that called for them to put a combined $50 billion in assets into Voluntary Employee Benefit Association accounts. The VEBAs would be run by the UAW for the 'benefit' of the workers.

Unfortunately the UAW waited too long to cut its deals.

Read their full article The UAW's Shell Game here.

Nancy Pelosi has a Christmas Present for You

Chris Berg — Mon, 16 Nov 2009 14:59:00 GMT

My favorite holiday movie is A Christmas Story. It's the story of young Ralphie Parker and his dream of awaking Christmas morning to find "an official Red Ryder carbine-action 200-shot range model air rifle with a compass in the stock, and this thing which tells time."

Like a young Nick Naylor he lobbies his parents, his teacher and even Santa. On Christmas morning Santa Claus takes care of young Ralphie, and hidden away behind the piano he finds his gun.

Ralphie's Aunt was not so kind. Though well meaning, she sent him a pink bunny suit. It had to have been the worst Christmas present a child could receive. Nancy Pelosi has her very own pink bunny suit to give to America. Her Christmas Present is a 2,000 page healthcare bill – one size fits most, no returns, and no re-gifting.

Happy Holidays!

"I'm hopeful that we will have a bill as a Christmas present for the American people. But we will have a bill and it will be soon." Pelosi said.

Pelosi said she plans to see the senate leaders at the conference table.

" Now, we will go up to the table fighting for a public option because we believe that's the best way to keep the insurance companies honest and to increase competition," said Pelosi.

Read the full story here.

I Have a Lot of Respect for Representative King

Chris Berg — Wed, 11 Nov 2009 15:39:00 GMT

Remember last Saturday Representative Steve King held a Healthcare House Call to encourage his colleagues to "Kill the Bill"? At the time, I didn't realize he was missing his son's wedding in order to stand up for what he believes. Here's to you Representative King, and best wishes to Mick and Stephanie.

When it came down to a choice between attending his son's wedding and staying in Washington to vote against health care reform Saturday, Steve King knew what he had to do.

He skipped the wedding.

Health care reform passed the House of Representatives anyway, 220-215, but King, Iowa 5th District congressman, said Monday he doesn't regret his decision.

The Republican had been battling HR3962, pushed by the Democratic majority in Congress, for months. He'd known about his son Mick's plans to wed Stephanie Bettin on Nov. 7 for months, as well. On Nov. 1, during a trip home to Kiron, Iowa, he told Mick, Steph and other family members the vote could fall on the wedding day and it might not work to do both.

"It was not a hard decision for me to decide then that I had to be in Washington, if that was the time the vote was coming up. But it was still hard, if you know what I mean," King said.

The reaction in the room?

"No one in this family asked me to reconsider. They all said, 'We know that you will do what you have to do,'" King said. "So I call it full-family support and full understanding. As I said, the best thing that I could give them would be to preserve the freedom that I was born into and be able to pass that along to any children that they will be blessed with."

See the full story here.

Beam Me Up – Maybe James Traficant Has the Healthcare Solution

Chris Berg — Mon, 09 Nov 2009 23:06:00 GMT

Pelosi-Care passed the House. I'm sure you've already checked out the RNLA paper on Healthcare Reform. SEIU is lobbying heavy for passage in the Senate, and ACORN has to sit this one out while they wrangle with their latest scandal. Who can save the day? How about former Congressman James "Beam Me Up" Traficant? I wonder why he's holding town hall meetings.

While not offering a specific plan, Traficant urged his audience to join forces with retirees from other companies as well as salaried workers to respond with a strong, unified and collective voice. The issue regarding Delphi retirees has been addressed but must be resolved, he said.

"If it's not a marriage, at least let it be a shotgun wedding. Join forces," Traficant said, referring to collaborating with former LTV Steel and other retirees.

The ousted 17th District congressman, who recently was released from federal prison after serving seven years for various corruption crimes, also implored the Delphi retirees to have clear goals and be strong and assertive when approaching their elected officials.

"Come together and work with Congress and push them to make you whole," he said.

Read the full article here.

ACORN Would Love to Be Part of This Fight

Chris Berg — Mon, 09 Nov 2009 14:12:00 GMT

Pelosi-Care has passed the House. As much as those words should scare you, the game isn't over yet.

All but one Republican voted against the Bill. The Republicans lead rallies, protests, brought in Jon Voight and John Ratzenberger. Representatives Bachmann and King really lead the charge. The public spoke up, but the Democrats in power continued to move the Bill forward.

Now the fight moves to the Senate. In the Senate one or two votes may have more of an impact on this legislation.

Democrats are aware that in many ways their electoral prospects and President Obama's opinion rating hinges on this measure. Look at what our friends at SEIU are doing about it. First they went after swing members, urging their union ranks to call and advocate for healthcare reform. When targeting specific members wasn't enough, they decided to target all male members of Congress:

We rigged our toll-free phone line to direct calls to male members of Congress. That's right - the men in Congress need to hear from us about how women are routinely discriminated against by insurance companies. Let's educate them on what women are facing every day: higher premiums, less coverage, and battles with insurers over "pre-existing conditions" like pregnancy and c-sections.

You know ACORN would love to be part of this fight.

I’m No Jon Voight, but I Will Be There Tomorrow

Chris Berg — Fri, 06 Nov 2009 23:57:00 GMT

Jon Voight was in town for the first Health Care House Call. If you've been following the news you know that Nancy Pelosi has scheduled a vote on her monstrosity of a bill for tomorrow. There's going to be a second Health Care House Call tomorrow. Congressman Steve King will be there. So will I... I won't be speaking, but come spend the afternoon with me anyways. I hope to see you there.

Second "House Call" Press Conference Planned For Saturday

Congressman Steve King today made the following statement calling on American citizens to come to Washington this weekend to stop a government takeover of health care.

"Nancy Pelosi and Washington liberals cannot ignore what transpired yesterday in Washington. Americans from every state stormed Capitol Hill. They took over the Hill. And they loudly chanted 'Kill this bill!'

"We can kill this bill and stop the government takeover of health care. We need the help of every American willing to stand up for freedom and liberty. I urge all Americans who oppose this bill to come to Washington tomorrow morning and join us to stop this bill."

Tomorrow at one p.m. Congressman King will join his Republican colleagues and Americans from across the nation seeking to have their voices heard in the health care debate for a second House Call press event. Republicans and other participants will deliver a message that the American people reject a government takeover of health care.

What: Second Health Care "House Call" on Washington

Who: Republican Members of Congress
Americans concerned about our health care future
Other Guests - TBA

When: Saturday, November 7, 2009 at 1:00 p.m.

Where: East Egg of U.S. Capitol (see map below)

RNLA Health Care Update

Justin Riemer — Fri, 06 Nov 2009 17:44:00 GMT

RNLA has put together a health care update that gives you the truth on Pelosi's health care bill, its cuts to Medicare, funding for abortion, and its tax increases. It also discusses the GOP alternative. Please click here to check it out. Only waiver is that the timeline section may be slightly dated because according to some reports the Democrats may not have the votes.