What is the situation?

What is the situation?

Posted on February 3rd, 2011 by Ken Watson

Congress passed a law. A biggun. I won’t indict the methods employed, the simple fact is they got it passed. But this was an unusual critter. First off titanic in size and scope. Also as opaque as a public document could be. As Nancy Pelosi informed us so elegantly, we would have to pass it to see what was in it. Weeks after the vote the first reports from Reality returned. They were bad. Oh, so bad. You see, all the industries effected by the Patient Protection and Affordable Care Act, which is all of ’em of any size, have people whose job it is to read laws and regulations that could matter to the bottom line or present legal exposure. It took them a couple weeks to find in the Act that following these procedures would spike their healthcare costs, render some of their offered coverage plans illegal (McDonalds, most famously) or in the case of actual medical industry participants, make their businesses impossible to conduct. By law and regulation these findings are disclosed to the public. Well, the Democratic Congress of ’06 to ’10 and the Administration didn’t care for that. Malefactors were brought before Congress to explain themselves. Unfortunately for the Democrats, they did. Reality turned out to be especially durable here, even the most skillful blandishments couldn’t alter the mathematics. The Administration responded in the only practical fashion: waivers. Today some seven hundred waivers from some particular element of PPACA have been issued, overwhelmingly to Unions, oddly, as of course organized American labor was a starting forward in the push for the bill. No one, not a single player in this debacle will now state publicly that the law is sound as passed. All are open to alterations, just yesterday a waiver was issued for everyone from the formerly “key” 1099 requirement which would have demanded the IRS be apprised of any business transaction more than $600. A year. Obviously when it became apparent that certain influential demographics would have to treat their barista as an independent contractor, something had to be done.

So already we are in an atmosphere where the media driven enthusiasm for PPACA has evaporated, since it was vaporous, and opposition (never meager) has been fueled and manned by hard, genuine experience. That was reflected in the House passage of a straight repeal. The Senate defeated the measure with 51 votes. Ah, friends, I’m no expert but that sounds damn close especially when one considers that the Senate is still in Democratic hands and their leader said there wasn’t ever going to be a vote!

We can call this the Home Front in the struggle. In the Congress there are trenches dug. But it is not the only front. Twenty-six states are now party to a suit that declares the whole contraption is unConstitutional. Twenty-six. How many are there again? I’ll have to check on it to get the hard number but this is a good few. And not all Republican. And not all Republican.

So, as you may have heard, a Florida judge ruled in favor of the plaintiffs saying in essence, no, the idea that the federal government can dun and imprison citizens for not participating in this contrivance is not within the enumerated powers found in the Constitution. Nope, not there.

Now against any ordinary monolith this would be sufficient. Without this compulsion the whole thing fails, even on its own terms and best case scenario. And it always was the most suspect provision since it was the most outrageous. Candidate Obama lambasted Hillary for suggesting such a thing. He said we could just as well eliminate homelessness by requiring everyone to buy a home! That was some downhome wisdom there. I wonder what ever happened to that guy?

Anyhow the mandate is struck down. Now, here’s an oopsie. Ordinarily any project like this, like Medicare or Social Security, there would be, as a matter of legislative competence, something called a “Severability Clause” which would state that any part of this act being struck down should not be taken as invalidating the whole article. This is the norm. Inserting severability is the rule for reasons that are now obvious to everyone. Was this just an oversight? No how. No way.

The calculation was one derived straight from Hollywood comedy. The drafters (an amorphous legion of straight-A student government types who have courted their legislators over decades) knew they were on shaky ground and the mandate was the worst element. So what to do? While some judge some where MIGHT possibly see a problem with a new system of debtors prisons if there is no severability clause then striking down the mandate strikes down the entirety and hey, NOBODY is going to do that, right? I mean come on! In essence the healthcare law, confronted by an angry and armed populace while emptying their granaries has produced a pistol, pointed it at its own head and said, “Nobody move or the geek gets it!”

This is where we find ourselves now. The law is a dead letter. That is a simple legal fact. But it carries on, zombielike; slow, rotten, voracious and unstoppable while the forces of Reality and the Federal bench stand struck not with terror but incredulity. No one in the biz can believe that the pro-PPACAs would actually, ya know, just ignore a court order. But they are. Or have been for about 48 hours. So now in the offices of ALL State Attorneys General and many municipalities, businesses, schools… really any place there is medicine or insurance, there is a question. To whom do we listen? Actually it’s not much of a question. There is absolutely no legal doubt that the court was well within its rights and the Feds now blatantly outside theirs but the Executive acts as if nothing at all has happened.

The question is the most foundational of all Constitutional questions. Just who is in charge? So when you hear, as we have, that oh no, there’s no crisis here. Everything is just groovy. The proper response is, “Says who?”