Obama Universal Health Care Plan May Be Unconstitutional, and Other Broken Promises of the Obama Administration

Health insurance is a luxury that many Americans cannot afford. Mr. Obama’s universal health care plan (the Patient Protection and Affordable Care Law), like any public health care insurance presently provided in part by the federal government and by state programs such as MediCal, only provides the most needy patients with only the most basic and essential medical services.

The Obama health care law is quite similar to the insurance industry lobby’s own suggestion for a universal health care law, as put forward by America’s Health Insurance Plans (AHIP) in December of 2008. This similarity between the insurance lobby health care plan and the Obama health care plan is not coincidental, as both are based on Republican, pro-Insurer laws suggested in the early 90’s in opposition to the Clinton proposals for universal health care coverage. Specifically, the Obama law is based on a Republican health care plan proposed in 1993 by Senator Chafee and backed by the conservative Republican Heritage Foundation which introduced a similar health care plan at the same time. Neither the Chafee plan nor the Heritage Foundation plan was ever effectuated, due to political wrangling.

It seems that Mr. Obama’s health care law is not only equally supportive of insurance companies’ bottom-line profits, insofar as the fact that it requires most Americans to purchase private insurance coverage with limited tax savings from the Federal government (which the government can afford only by phasing out tax credits it presently gives to employers who provide insurance to their employees), but the Obama plan too may never be truly effectuated due to a mountain of legal challenges brought in various federal district courts based on the law’s potentially unconstitutional requirement that Americans purchase private health insurance. This key aspect of the law not only boosts private insurance company profits by forcing Americans to purchase policies from them, but by so doing, this part of the law may violate the Commerce Clause of the US Constitution.

Under the Commerce Clause, Congress has the power to create laws that regulate interstate economic activities. The Obama Administration suggests that Americans’ actions to buy or not buy insurance policies are exactly that: interstate economic activities which Congress may regulate.

Several states have already filed lawsuits challenging the Obama health care law on such grounds, including Alabama, Florida, Michigan, Nebraska, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, and Washington. These states argue that it is not a commercial “activity” to not purchase private insurance. In other words, a person’s refusal to not buy a private insurance plan cannot be regulated by Congress, since the person is not engaging in any interstate economic activity. It seems that the Obama administration’s perspective is that by failing to buy private insurance, a person would be negatively affecting the federal insurance plan, and by upsetting the proverbial apple cart, the person would be negatively affecting interstate commerce. This is a reach, especially for legal scholars who should know better, such as the federal attorneys fighting on behalf of the Obama health care plan. Most of our nation’s citizens, however, will not understand the complex legal arguments at issue here enough to see that the Obama plan’s constitutionality is highly suspect at best, and rather will conclude that Republicans are simply stonewalling the idea of universal health care coverage for no good reason. It seems like this may very well be the strategy of the Obama Administration – rather than focus on accomplishing the goal of meaningful universal health care coverage, they have proposed a plan that at best would impact only the most needy people and only in the most minimal and necessary ways; yet even still, such a plan is largely dead on its feet due to the evident unconstitutionality of trying to force people to buy private insurance plans from insurance companies, while simultaneously striking a political victory for Democrats by making Republicans look anti-populist for their seeming opposition to health care reform, when what opponents of the Obama health care plan are really doing is upholding the US Constitution, regardless of whether such opposition is based on liberal pro-Civil Rights beliefs or conservative Tea Party Constitutional “originalist” beliefs. Indeed politics make for strange bedfellows.

Other challenges to the Obama health care plan’s Constitutionality focus on the infringement of state’s self-determination rights and financial abilities to fund other necessary public services, such as education and social welfare, by forcing states instead to spend their own tax money to support the law’s newly expanded federal Medicaid system and to activate the law’s state-run exchange program to help residents find and purchase suitable private health insurance plans.

Yet, the Obama Administration has other concerns, like how it’s going to make good on its stirring campaign promises to progressives and grassroots activists.

During his campaign, Mr. Obama loudly and repeatedly promised to end US involvement in the war in Iraq within months of taking office. The Iraq war continues with a minor and partial pull-out date somewhere in late 2011 – don’t hold your breath.

During his campaign, Mr. Obama promised to close Guantanamo and adhere to human rights requirements to provide Guantanamo inmates with criminal trials in US courts. Guantanamo is still open for business, with no such trials afoot for nearly all of the prisoners of war held in that prison. Further, we really have no way of knowing whether the Obama administration has continued with the practice of extraordinary renditions of prisoners of war to “Black Ops” prisons wherein questionable if not illegal interrogation and imprisonment practices are the rule.

During his campaign, Mr. Obama promised to re-establish the many environmental protection policies that the Bush administration curtailed during 8 years of attacks on conservation and environmental justice efforts. As the good folks at our nation’s environmental conservation and environmental justice law firms can tell you, they are busy at work filing lawsuits against polluting companies, state governments, and the federal government for continuing corporate and governmental attacks on the environment.

During his campaign, Mr. Obama promised us to create a meaningful universal health care law that would provide all Americans with necessary health care coverage. I suppose by that he meant that he would institute the Republican, pro-insurance industry requirement that we all get in line to spend what little money we have to purchase private insurance policies from big insurance companies, lest we be held liable for violating the ironically named “Patient Protection and Affordable Care Law” – an Orwellian name for a law that is itself unconstitutional.

It’s interesting that Mr. Obama has borrowed not only his health care plan from the Republicans, not only his policies on war, the environment, civil rights, and corporate welfare from Mr. Bush (remember the Obama bailouts via billions of US taxpayer dollars to the banking industry and auto industry, now ironically called the “Financial Stability Plan”), but also it seems that Mr. Obama’s use of upside-down language from the prior administration. Remember that Mr. Bush called his destructive agenda and downsizing of federal funds for public schools in America the “No Child Left Behind” policy – a policy that in fact left a lot of children behind, due to severe undercutting of benefits and support for schools and teachers. So now, Mr. Obama calls his health care plan that will potentially prosecute Americans for failing to purchase plans from private health care insurance companies the “Patient Protection and Affordable Care Law.”

It seems like we misunderstood Mr. Obama when he told us his presidency would be about “Hope and Change.” It seems like all we are left with is hope, and no change. Keep hoping.

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