A Health Care Policy Series for the 112th Congress:  The Heritage Foundation

Building on decades of Heritage research, The Case Against Obamacare: A Health Care Policy Series for the 112th Congress examines 15 key provisions of the Patient Protection and Affordable Care Act. Each report:

  • Cites specific sections of the 2,700-page health care law
  • Provides detailed analysis of specific Obamacare provisions
  • Identifies key principles for a better way to reform health care

The unmistakable conclusion of this series is that Obamacare must be fully repealed. Congress cannot build sound market-based health care reform on the flawed foundation of this health care law. Until it can be repealed, Congress must employ its full powers authorized by the Constitution to:

  • De-fund the new law’s critical aspects
  • Block any further provisions from going into effect
  • Engage in aggressive oversight of Obamacare – its regulations and implementation.

Upon repeal, Congress should pursue a careful and thoughtful process to develop targeted solutions that address practical problems in the health care system based on the principles of personal ownership, consumer choice, and free markets.

Introduction: Repealing Obamacare and Getting Health Care Right

1. Obamacare and the Individual Mandate

2. Obamacare and New Taxes

3. Obamacare and the Budget

4. Obamacare and the Employer Mandate

5. Obamacare and Health Subsidies

6. Obamacare and Federal Health Exchanges

7. Obamacare and Insurance Benefit Mandates

8. Obamacare and Insurance Rating Rules

9. Obamacare and the Hidden Public Option

10. Obamacare and Medicare Advantage Cuts

11. Obamacare and Medicare Provider Cuts

12. Obamacare and the Independent Payment Advisory Board

13. Obamacare and Medicaid

14. Obamacare and the CLASS Act

15. Obamacare and the Ethics of Life


The Washington Times

WOLF: Obamacare waiver corruption must stop

If some Americans deserve exemption from a bad law, then all Americans do

By Dr. Milton R. Wolf

7:14 p.m., Friday, May 20, 2011

Selective enforcement of the law is the first sign of tyranny. A government empowered to determine arbitrarily who may operate outside the rule of law invariably embraces favoritism as friends, allies and those with the best-funded lobbyists are rewarded. Favoritism inevitably leads to corruption, and corruption invites extortion. Ultimately, the rule of law ceases to exist in any recognizable form, and what is left is tyranny.

America’s founders rejected that road to tyranny when they boldly declared that all men are created equal. They wrote a Constitution meant to secure the promise of equal protection under the law.

President Obama, former House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid, Democrats all, in their rush to take over America’s health care system, made all sorts of outlandish, unkeepable promises. Among the most egregious: Obamacare would allow you to keep your current health insurance and your doctor. Mr. Obama’s ownMedicare chief actuary now acknowledges that Obamacare may cause up to 20 million Americans to lose their current health insurance policies, and doctors are increasingly leaving Medicare, Medicaid and the practice of medicine altogether. Good luck keeping them. Another unkeepable promise: Obamacare “will create 4 million jobs, 400,000 jobs almost immediately.” The Congressional Budget Office’s budget director estimates the law actually will destroy 800,000 jobs.

Obamacare’s chickens, to borrow a phrase our president may have heard somewhere before, are coming home to roost. The law, as currently adjudicated, has been ruled unconstitutional. The president’s own secretary of health and human services, Kathleen Sebelius, has admitted a major section of the Obamacare law is “totally unsustainable.” Before casting his vote in favor of Obamacare, Sen. Kent Conrad, North Dakota Democrat, described it as “a Ponzi scheme of the first order, the kind of thing that Bernie Madoff would have been proud of.” Well, Mr. ConradMr. Madoff certainly would be proud of you and your colleagues.

The now-familiar monthly trickling down of new waivers is, at best, a tacit admission that Obamacare is a failure. So far, seven entire states and 1,372 businesses, unions and other institutions have received waivers from the law. The list includes the administration’s friends and allies and, of course, those who have the best lobbyists.

More than 50 percent of the Obamacare waiver beneficiaries are union members, which is striking because union members account for less than 12 percent of the American work force. The same unions that provided more than $120 million to Democrats in the last two elections and, in many cases, openly campaigned in favor of the government takeover of your health care, now celebrate that Obamacare is not their problem.

But the political payoffs don’t stop there. The Obama administration didn’t forget its closest friends in the latest round of waivers. Although there are 435 congressional districts across America, nearly 20 percent of the new waivers, amazingly, found their way to a single district - Mrs. Pelosi‘s. As for Mr. Reid, well, the entire state of Nevada found an early waiver in its Christmas stocking. After all, what kind of a friend would the president be if he couldn’t pull a few strings?

The priorities of the Obama administration and its Democratic allies are on display with every waiver granted. The list of beneficiaries in Mrs. Pelosi’s district, for example, belongs in an episode of “Lifestyles of the Rich and Famous.” Mrs. Pelosi, champion of the unions and no stranger to hypocrisy, has amassed a fortune as part owner of Napa Valley Auberge du Soleil resort – a luxurious nonunion shop. Now her luxury boutique colleagues also can benefit from her “do as I say” politics. The “four-diamond luxury” hotel Campton Place; Tru Spa, Allure magazine’s “best day spa in San Fransisco”; Boboquivari’s and its $59 porterhouse steaks; and Cafe des Amis, “a timeless Parisian style brasserie,” are among her beneficiaries.

As American families are being squeezed by increasing health insurance premiums as well as rising gasoline and grocery prices, I’m sure they’ll be relieved to know that San Francisco’s down-and-out millionaires will be protected from paying Obamacare’s bills. Mercifully, Mrs. Pelosi’s limousine liberals will no longer be forced to beg for Grey Poupon from every Rolls-Royce passing by.

Why did these particular businesses receive waivers? The administration that calls itself the most transparent in history won’t say. Nor will it explain why it has denied at least 79 requests from others. Worse still, Health and Human Services has decreed that it will not even accept waiver requests from individuals, so if you choose to purchase your insurance directly, you have no recourse.

Americans deserve and, in fact, are guaranteed by our Constitution a level playing field. We were never promised equality in results, but we do deserve to play by the same rules and to be judged by the same standards. When a new law like Obamacare is so deeply flawed that its supporters openly violate these American bedrock principles to sustain it, it’s time to repeal that law.

I will repeat the same question I’ve been asking since the first health care waiver was granted: If Obamacare is such a great law, why does the White House keep exempting its best friends from it?

Dr. Milton R. Wolf, a Washington Times columnist, is a board-certified diagnostic radiologist and President Obama’s cousin. He blogs at


Judge Vinson Issues His Health Care Law Ruling: What’s Next?

TAMMY FRISBY | FEBRUARY 01, 2011 | 7:22 AM
Now that federal judge Roger Vinson of a Florida district court has issued his much anticipated ruling declaring the 2010 health care reform law unconstitutional, it’s open season on predictions about how the decision will shape the political debate and the direction of health care policy. Here’s what I see when I look into the crystal ball.

This case is the heavyweight among the health care law lawsuits, being that it was brought by governors and attorneys general from 26 states. But Vinson’s decision, while it may be personally satisfying for critics of the health care law, won’t make a major difference in how things play out over the next year or so. Here’s why:

There will be little change in public opinion.

I’ll be watching the public opinion polls closely over the next few days and weeks, but I don’t expect to see significant change in the popularity of the health care law, even among independents and individuals with weak party allegiance. Even if the ruling does lead some Americans to reevaluate their opinion of the law, those reassessments will probably not swing decisively in one direction. Some Americans might be swayed to view the law less favorably while others could turn to support portions of the law they favor against what they might perceive as an activist judge legislating from the bench.

Yes, Senator Jim DeMint (R-SC) took the morning build up to the Florida ruling as the moment to trumpet (ok, tweet) that all 47 Republican senators had signed onto his bill to repeal the health care law. The news in that announcement was that the last four Republican hold-outs had agreed to support the bill (Lamar Alexander of Tennessee, Susan Collins of Maine, Thad Cochran of Mississippi, and Iowa’s Charles Grassley).

But it’s hard to make a convincing case that what led this gang of four to get behind the DeMint repeal bill was the prospect of a wave of public sentiment against the law following the Florida court decision. These senators would have been pressured by constituents and Republican party activists to take a public position in favor of repeal even if the Florida ruling had gone the other way. Recall that none of these lawmakers voted for the law last year, and between the Democrats in the Senate and Obama’s veto repeal isn’t going to happen, so it wasn’t a huge win for DeMint to get these four endorsements.

What DeMint would love to announce is that the Democrats in the Senate have begun signing on to the repeal. But until there are major shifts in public opinion on the law, we won’t see that. The least politically risky move for the Senate Democrats is to hold tight at their current position and not support the Republicans in their efforts to repeal, reform, and defund.

In the wake of the Florida decision, health care policy making in Congress is going to look like it did the day before the Florida decision: no repeal of the entire health care law, maybe repeal or reform of some relatively minor provisions, legislative fights in Appropriations committees to cut off funding for the implementation of the law, and plans for a mind numbing number of congressional hearings called by Republicans to paint the health care reform law as “job killing.”

Everyone is waiting on the Supreme Court.

What the Florida decision probably does do is rally activists and donors in the Republican Party and Tea Party for 2012 by creating a sense of momentum in their campaign against the health care law. If more energy and money flow to Republican and Tea Party candidates, that could mean big changes to American health care policy by a more heavily Republican Congress and maybe even a Republican president beginning in early 2013.

But any enthusiasm bump from the Florida ruling will be overshadowed in size and importance by the kick a Supreme Court decision would have. Provided the Supreme Court rules on the health care law sometime in the next 18 months (or rejects all petitions to hear appeals from the circuit courts), that’s the decision (or indecision) that will ignite activists and donors on the right and the left. That spark comes no matter the content of the ruling, and since the Democrats are already on the defensive, I think most of the action happens among the Republicans and Tea Partiers. If the high court declares the entire law or the individual mandate unconstitutional, the political right does a collective “I told you so” dance. If the law is upheld as constitutional, they will use the decision as the clarion call for the base to mobilize, elect Republicans, and repeal the law.

We already had conflicting rulings from lower federal courts (two declaring the law constitutional and one declaring the individual mandate unconstitutional), so it was likely the law was already moving its way toward a hearing before the Supreme Court. I don’t think the Florida decision did much to change in any meaningful way activists’ or lawmakers’ senses of the likelihood of a Supreme Court decision.

Don’t Make Too Big a Deal about Severability.

The Florida decision makes a difference in that it will force federal appeals courts and the Supreme Court to address the question of the law’s severability, an issue which was not raised by the earlier Virginia federal court ruling that found the individual mandate unconstitutional. But the prospects of the health care law remaining on the books would be the same no matter whether the law is declared severable or not. Democrats and Republicans agree that if the individual mandate is removed from the law, the law just won’t work. If younger, healthier Americans aren’t required to be in the risk pool, the new regulations that prohibit coverage denials based on preexisting conditions, end annual and lifetime benefit limits, and allow dependents under the age of 26 to remain on their parents’ plans will be too expensive for the pre-PPACA pool of insured individuals in the market to support (from a political standpoint, if not an economic one). If the Supreme Court ruled only the individual mandate unconstitutional, I’d put my money on Republicans picking up enough Democratic votes to repeal the rest of the law.

We’re along way from that point, though. Over the next few days, there are going to be a lot of histrionic statements about the consequences of the Florida ruling. The upshot of the decision, as I see it, is that the course of the next year to 18 months remains unchanged.


6 New States Make 25 Joining Fla. Lawsuit Against ObamaCare

Just one day before the House voted to repeal ObamaCare, six additional states joined a Florida lawsuit against the measure — bringing the total challenging the law to 26 — more than half the states in the Union, according to Fox News, Jan. 19.

Iowa, Kansas, Maine, Ohio, Wisconsin, and Wyoming are taking part in the suit filed by Florida’s former Attorney General Bill McCollum (R), immediately after it was signed into law last March. McCollum was initially joined by the National Federal of Independent Business in protesting the 10-year, $938 billion measure.

Already part of the suit are Alabama, Alaska, Arizona, Colorado, Georgia, Indiana, Idaho, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington.

Other states have also pursued suits against ObamaCare — in December a federal judge in Virginia ruled against the provision that individuals be required to purchase health insurance.

The states in the Florida suit make the same claim — the law is unconstitutional. It violates individual rights by forcing people to buy insurance or face penalties, and its mandate on the states provides no funds to pay for it. Plaintiffs maintain the states are placed in the impossible position of accepting the new costs or forfeiting federal Medicaid funding. Sunshine News carried this statement on January 29, founded in the Bill of Rights, from McCollum:

This case is of pivotal importance to our constitutional rights because Congress has limited, enumerated powers under the Constitution, and beyond those powers Congress cannot pass law.

And Florida’s current Attorney General Pam Bondi added,

… [The] hearing demonstrated that the health-care law depends on a vision of limitless federal power that is completely contrary to our Constitution. As attorney general, I will continue to fight back on behalf of Florida’s families and businesses against this unconstitutional and unaffordable law.

But opponents disagree. Fox News continued,

Government attorneys have said the states do not have standing to challenge the law and want the case dismissed. Justice Department spokeswoman Tracy Schmaler said, “It is important to note that two of the three courts that have reviewed this law on the merits have found it constitutional, and those decisions — as well as two others the government prevailed on — are pending in courts of appeal. At the same time, trial courts in additional cases have dismissed numerous challenges on jurisdictional and other grounds that have not been appealed.”

Others wonder if Schmaler has read the Constitution. The lawsuit speaks to the heart of the document and the legality of the Act. In The New American, May 12, 2010 constitutional lawyer Joe Wolverton wrote,

The case at bar specifically impugns the so-called individual mandate. This provision of ObamaCare requires every American, regardless of income or personal preference, to purchase a qualifying health insurance policy or face tax penalties. If the power to regulate commerce or impose taxes is broad enough to justify this provision, then is there anything that would lie outside the boundaries of that power? Congress, theoretically, could compel citizens upon penalty of law to purchase any number of imaginable commodities and thus it would be “extending the sphere of its activity and drawing all power into its impetuous vortex,” just as James Madison foretold.

Wolverton contends that the attorneys general are to be lauded for their resistance, but there remains another means of asserting state sovereignty against a heavy-handed government:

Nullification is a constitutionally sound and procedurally cleaner method of checking Congress’s usurpation of power. Put simply, nullification requires each state to nullify, or invalidate, any federal law that a state believes violates constitutional restrictions on federal power and/or unlawful encroachments into the sovereignty of the states in violation of the Tenth Amendment.

Nullification is based on the argument that as the union was formed by the consent of the several sovereign states, these states as parties to the compact and the authors thereof, retain ultimate authority as to the limits of the power of the central government to enact laws that are applicable to the states and the citizens thereof. The Ninth and Tenth Amendments validate and buttress this assertion.

John McManus, president of The John Birch Society, agreed and told The New American:

This is a bad bill, and doesn’t need reform, but repeal. A lawsuit is better than no remedy at all, but the real answer is for states to nullify. There is no alternative but nullification of ObamaCare.

Nullification has successfully occurred before. For instance, the Real ID Act — it was passed, but it died because the states said no! Nobody used that word — nullification — but that’s what it was.

In an interview with The New American, Wolverton concluded:

The suits are ultimately doomed as they are, in essence, asking a branch of the federal government to undo the act of a sister branch. While such decisions might be handed down by this or that federal court, there will never be an absolute jurisprudential repeal of ObamaCare, as Congress, if determined will find ways around contrary holdings of judges.

Nullification is accomplished when states exercise their sovereignty by setting aside laws passed by the national legislature that exceed its constitutional power. Any measure passed by Congress that doesn’t conform to the express, limited, and enumerated powers granted to it therein by the people and the states, is null and has not the force of law.

Outside the Constitution, there is no law.

In spite of these congressional limits, Florida U.S. District Judge Roger Vinson could rule later this month whether he will grant a summary judgment in favor of the states or the Obama administration without a trial, according to Fox.

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