George Washington for Obamacare?

by Atty. Emmanuel Samonte Tipon

“Susmariosep,” as my good friend and comprovinciano who has gone to heaven Max V. Soliven was wont to write.  “Health Care defenders look to George Washington.” USA Today, March 21, 2012, p. 2A. See also Huffington Post, March 27, 2012.

Are the Obamacarians so desperate for arguments to defend the validity of Obamacare - which is being heard by the U.S. Supreme Court this week - that they are even invoking the first President of the United States who died more than 200 years ago? They claim that Obamacare is similar to the Militia Act of 1792 which George Washington reportedly signed into law. The Militia Act was enacted pursuant to the constitutional power to raise armies and to regulate them. It provided for the conscription of men ages 18 to 45. It required conscripts to have a rifle. Obamacarians say this was an “individual mandate.”

The Patient Protection and Affordable Care Act of 2010 aka Obamacare requires people in the United States to buy health care insurance. A penalty will be imposed on those who don’t. It is called “individual mandate.” The Internal Revenue Service is the enforcer of Obamacare.

But the Militia Act has nothing to do with health care. It was based on a specific constitutional provision “to raise armies” which includes arming oneself. Obamacare is not based on a constitutional provision “to improve health care” because there is none. It is based on a general provision “to regulate interstate commerce,” not health care.  The Militia Act did not compel conscripts to buy anything; they could beg, borrow, steal, lease, or inherit the rifle. Obamacare requires people to buy health insurance; people cannot beg, borrow, steal, lease, or inherit health insurance. The Militia Act required only men aged 18 to 45 to have a rifle. Obamacare requires everybody – man, woman, or child of all ages – to buy health care insurance.

So much for this non sequitur.

MAIN ISSUES

There are four main issues about Obamacare to be addressed before the Supreme Court during the unprecedented 3-day hearing from March 26 to 28:

1. Does the court have jurisdiction over the case?
2. Is the provision (individual mandate) requiring people to buy health care insurance otherwise they will be penalized constitutional?
3. Is the individual mandate provision severable from the rest of the law, such that if it is declared unconstitutional the rest of Obamacare can still stand?
4. Can states be compelled to expand Medicaid?

HOW WILL THE SUPREME COURT DECIDE?

Many people have speculated that out of the 9 justices, the 4 appointed by the Democrats (pro Obamacare) will vote for Obamacare, while the 5 appointed by the Republicans (anti-Obamacare) will vote to strike down the law. But the Supreme Court justices do not necessarily vote according to wishes of the party or person who appointed them, unlike in the Philippines.

Others speculate that the Justices will succumb to pressure. That is why the pros and antis are buying media ads and organizing demonstrators to rally before the Supreme Court. Some believe that the Justices will vote for what is popular.   Again this is not the Philippines where Justices can oftentimes be swayed to decide in favor of what is “popular” so that they can also be popular.

Anyway, is Obamacare popular?  USA Today (openly pro Obamacare) conducted a poll which it published showing that 45% say that Obamacare is a “good thing” while 44% say it is a “bad thing,” with 11% “unsure”. Assuming that the poll results were not “doctored,” that is a good indicator of the popularity or unpopularity of Obamacare.

A number of people argue that Obamacare is a wise law because, for instance, people with pre-existing conditions can be insured; children up to age 26 can be covered by their parents’ health insurance; etc. But courts are not concerned with the wisdom of laws but only with their constitutionality. As stated by Justice Thurgood Marshall “The Constitution does not prohibit legislatures from enacting stupid laws.”

PYRRHIC VICTORY?

If Obamacare is held valid, it might be a pyrrhic victory for Obama. Those against Obamacare – Republicans, conservatives, independents, and even many Democrats – are very passionate. They will be so infuriated that they will vote in droves for any Republican who has promised to repeal Obamacare because that would be the only way to get rid of Obamacare.

The Supreme Court is expected to render its decision this summer. Whatever it decides will affect every one of us living in the United States, including illegal aliens.

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)