The Right Opinion

Republicans: Take ObamaCare to Court

By Arnold Ahlert · Sep. 24, 2013

Conservatives in Congress, and their fellow travelers among the chattering classes, are working overtime devising clever strategies to defund ObamaCare. I won’t bore you with the details, but suffice it to say none of them will likely amount to a hill of beans.

National Review’s Andrew McCarthy offers the most compelling argument in terms of an attempt, noting that “(a) Obamacare is very unpopular and its downside consequences are just beginning to kick in; (b) the defunding strategy includes a commitment to fund the rest of government so it can be demonstrated that Obama would really be the one shutting down the government over Obamacare; and © Obama himself has already unilaterally and unconstitutionally defunded aspects of Obamacare, including repugnant accommodations for big corporations, Obama insiders, and members of Congress…”

Thus according to McCarthy, “Republicans can compellingly argue that they are only insisting that the American people get the same relief from this awful law that Obama cronies, the ruling class, and the politically-connected get.”

Two major problems here, both exacerbated by our in-the-tank-for-Obama media. First, there isn’t a snowball’s chance in hell Obama gets the lion’s share of the blame for a government shutdown. Even if he went on television and said, “I’m shutting down the government,” the toadies at MSNBC, Politico, CNN, NBC, etc., etc., would proclaim the “evil Republicans” forced him to do it.

The second problem? Save for a handful of GOP politicians, the Republicans can’t make a compelling argument about anything, much less a scenario where the entitlement crowd would be forced to worry about getting their entitlements absent the slightest interruption.

On the other hand, Andy does have a potential strategy for killing ObamaCare embedded in his piece, and the most satisfying aspect of it is the reality that progressives have used it successfully for years. Stay with me now, because this is going to hurt for a moment:

Republicans shouldn’t defund ObamaCare. They should insist it be implemented to the letter of the law – and file a lawsuit in court to do just that.

By law, the Affordable Healthcare Act must go into effect beginning on January 1, 2014. Not part of it. All of it, including the employer mandate the president “unilaterally and unconstitutionally defunded,” as McCarthy noted. Make the Obama administration defend that unconstitutionality in a court of law, where government attorneys would be forced to argue that the same bill Obama considers his “signature achievement” is the one he’s willing to break the law as written to delay.

That’s pretty good, but it gets better still. As I noted in a previous column, in 2009 Sen. Chuck Grassley (R-IA) proposed an amendment for ObamaCare making sure it aligned itself with the 1995 Congressional Compliance Act, requiring the United States Congress and its Legislative Branch agencies “to follow many of the same employment and workplace laws applied to the private and public sectors.” When he rushed through the passage of the healthcare bill on Christmas Eve in 2010, Senate Majority leader Harry Reid (D-NV) neglected to address what would happen to the health insurance premium subsidies the federal government provides for Congress and their staff members.

Once again, Obama muscled those subsidies back into the bill using the Office of Personnel Management as his vehicle. Under pressure from Congress, he directed the OPM to create a new set of rules so that the Federal Employees Health Benefits Program can continue paying as much as 75 percent of  the health insurance costs for Congress and their staffs. Congressmen and staff members who insulted the intelligence of ordinary Americans when they claimed Washington, D.C. would suffer a “brain drain” if they were subjected to the very same law imposed on the rest of us.

Yet ObamaCare is specific in that it requires congressional members and staff to enter into exchanges, or be covered by insurance “created” by law. Thus, the validity of this stunt should be challenged in court as well, since the OPM has no statuary authority to authorize that change, and the president can be challenged for acting unilaterally to protect Washington insiders.

The beauty of this particular aspect of the law is that, once again, the Obama administration, the very same one that never misses an opportunity to tout its “champion of the little people” credentials, would be in court arguing that the Beltway ruling class deserves better and cheaper healthcare than those very same little people. Even the lo-fo's might be able to grasp the monumental hypocrisy of that reality.

As for the courts, it seems virtually impossible that the ultimate defenders of the rule of law would cast the rule of law aside. If it got that far, imagine the spectacle of the United States Supreme Court attempting to overrule its original ruling. Remember, they found that certain parts of the bill were unconstitutional, such as the requirement that states set up healthcare exchanges. It is inconceivable that they would make the additional “discovery” that the start date of the law, duly enacted by the Legislative branch of government could be unilaterally dismissed by the Executive branch of government. Such a ruling would put our entire system of government, based on the constitutionally mandated separation of powers, in jeopardy. Even the too-clever-by-half, “I need to protect the integrity of the court” Chief Justice John Roberts would realize the long-term ramifications of such self-imposed mockery.

While in court, Republicans can pursue one more argument as well. They should contend that if the entirety of ObamaCare isn’t subject to the rule of law, then Americans shouldn’t be subjected to any part of it. Again, let the administration argue for selective law enforcement, a position utterly antithetical to the bedrock principles of our democratic republic.

Is this idea a long shot? Compared to what? The Kabuki theater that has Republican Senators Mitch McConnell (R-KY) and John Cornyn (R-TX) actively whipping members of their own party in their attempt to undermine fellow Senator Ted Cruz’s efforts to defund ObamaCare? Don’t get me wrong. I think Ted Cruz (R-TX) is one of the few bright lights in the GOP, but I suspect the Harvard-trained lawyer could be far more effective pursuing the fight against this monstrosity in court, where he would know exactly who opposes him and why. In the Senate, he is up to his neck in back-stabbing “colleagues” who want nothing more than to avoid any blame for anything related to this bill.

McCarthy puts those so-called “establishment Republicans” in perfect perspective, noting that they “resist” Obama and his agenda only when they know that “resistance is futile, token and sure to be inconsequential – when it’s good for a campaign commercial about how hard the GOP is working to undo Obamacare, not when it’s about actually working hard to undo Obamacare.”

That’s what most Republicans are really all about. And that’s why a lawsuit – with an initial request for an emergency stay against the implementation of the ObamaCare until the issue of the president’s unconstitutional machinations are adjudicated – may be a viable alternative. A courtroom is where most of this monstrosity was validated. A courtroom could perversely provide its undoing for two over-riding reasons: if the court rules one way, our Washington elitists will be subjected to their own handiwork. If it rules the other way, every Congressman up for election in 2014 will have to explain to their constituents why the rule of law can be applied capriciously. If the former occurs, bet the farm the “fixes” to the law with come fast and furious. If the latter occurs, the electorate will likely be angry enough eviscerate an incumbent class of politicians in both parties who conspire against the public whenever it suits their purposes.

Seems like a win-win to me.

© Copyright 2013 The Patriot Post

15 Comments

M Rick Timms MD in Georgia said:

We will likely have the opportunity to try this -- after the Senate and Obama beat down the House...

This is one of many examples of Obama's clearly unconstitutional habit of only enforcing the bills he like - or choosing to ignore certain parts of the law that he finds inconvenient.

This is Tyranny. Enough!! That is the way of Kings and despots, and Obama is acting like both. Forcing him to enforce and obey the law would be a good start.

Tuesday, September 24, 2013 at 11:38 AM

Jayve in ABQ, NM replied:

Right you are, sir. Before the Revolutionary War, the people put up with a lot less s*** from the British monarchy before they declared war. I'm afraid there will be a tipping point soon as it well past time to put a stop to all of this madness. I'm also afraid to say that armed confrontation will be the only means of restoration to our republic. No matter who is in power, be it a D or R, the wheels are already in motion.

Tuesday, September 24, 2013 at 2:21 PM

GAry McIntyre in St Paul said:

Have sent this to Ted Cruz or any other influential public figures to get it started? Court is the place that can stop it now.

Tuesday, September 24, 2013 at 12:01 PM

Orf in PA said:

Arnold, you still don't recognize the power of the mainslime media. Most people know only what the propaganda press tells them. Do you think the average brainwashed American will follow the court case when the media ignore it? The focus of conservatives should be to cancel the propaganda media by retracting their broadcast licenses until they report all the news.

Tuesday, September 24, 2013 at 12:32 PM

Rod in USA replied:

Love to see them do that if there is a legtimate way. But the MSM would just label it repressino of the 1st Ammendment, even though it is actually supporting a truly objective, unbiased and independent media.

Tuesday, September 24, 2013 at 1:55 PM

Bob in rochester said:

Sounds Like a good Plan, how do we make it happen?
We should pursue this course of action No matter what show the Washington D.C. theater troupe puts on.
We individuals also need to be ready to challenge any and all attempts by the IRS to Collect the "Taxes" imposed as penalties for failing to purchase insurance at the bloated prices created by Obama care.

Tuesday, September 24, 2013 at 12:35 PM

Bud in The D-ivided States of America said:

I think 'defund and desist' absolutely everything related to the O'Care-less Act, until the matter Can be settled in Court. Also, I think there should be a special Court comprised of the supremes and also the other courts to consist of 12 members, with 10+ years tenure in current post only.

And please, you couldn't offer me the funds for a 'Paid In Full for Anything I Want' degree or doctorate at HAAAAVAAAAD in TAXICHEWSHITS. (Sorry, Mark in Mass, no disrespect to you!) Hopefully, Cruz will figure out how to use the 'learned tactics' to conservative advantage.

Tuesday, September 24, 2013 at 12:38 PM

Bud in The D-ivided States of America replied:

sorry, meant to say drawn from the supreme and other courts. 10+ years tenure in current post an absolute requirement applies to the supremes as well.

Tuesday, September 24, 2013 at 12:40 PM

JTG in Indiana said:

It's my guess that Cruz has already thought of this angle and developing it as plan B. Try to defund it and get the dems on record first and use it for the election season. After the Senate kills it again, file the court cases. This will keep it in the limelight.

Tuesday, September 24, 2013 at 1:37 PM

BJ in St. Cloud, MN said:

In a perfect world it would work, but this ain't perfect anymore. Most of the GOP are no better than the DFL and it's just a game they play for the cameras when in fact they also want more govt intrusion and less accountability. Which of these "representatives" of the people has been calling for term limits on themselves. And that, my friends, sums it right up. They all want power in the largest quantity they can acquire without us rising up and "smiting" them. They've been fooling us "Joe Sixpacks" for far too long already. We spend all our time trying to pull our asses out of the fire and our sworn representatives don't have their crooked co-conspirators arrested because they all have skeletons. They don't represent us, they use us. They feed on us, they are screwing us. Ted Cruz might be one of the better ones but it's not hard to look good around the likes of the rest of them. At what point are we going to demand what we're paying for? How long are we going to listen to the bullshit these crooks are feeding us? For God's sake people, are there no real Americans with backbones anymore? Everybody so worried about their own little cushy world and is unwilling to fight for the freedoms these slime are taking from us. We need a 10 million gun owner march, a 10 million Tea Party march. we need someone to lead a dedicated minority that's willing to fight for our lives and our freedom or very soon we will pass the point of not return. For many years they've been seeing how far they can go and encroaching on our lives a little at a time. Do you like letting them use your money to buy votes? Do you like that those on the dole are living at our expense? Do you think because the gunman in the navy yard was hearing voice our guns should be restricted. They've gone too far many times for many years. God help us if we don't stop them soon.

TERM LIMITS-RECALL-IMPEACH-PROSECUTE-SOON

Tuesday, September 24, 2013 at 3:10 PM

boilingfrog in N.C. replied:

Bj I'm on board.

Tuesday, September 24, 2013 at 5:42 PM

BuzzardB in Havertown replied:

I also am on board. Saw Dick Durbin get smoked by Cruz on CSpan 2. How does Illinois send such a whole ass to the Senate? Sorry friends in the land of Lincoln. Pennsylvania has Bob "First To Endorse Obama" Casey, whose father is spinning in his grave because of that endorsement. Imagine his son supporting Kermit Gosnell's best buddy!

Tuesday, September 24, 2013 at 11:19 PM

Doc Zombie in Somewhere in AZ replied:

I'm in too. NOT spineless here.

Tuesday, September 24, 2013 at 11:38 PM

CATHERINE LESLEY in NEWNAN,GEORGIA 30260 said:

AFTER LISTENING TO OBAMA TODAY AND ALL OF HIS MANIPULATION,IF CONGRESS DOES NOT IMPEACH THIS MAN NOW THERE WIL BE NO HOPE FOR AMERICA!HE SPOKE TO THE AMERICANS AND ANYONE WHO WOULD LISTEN AS,THO THEY WERE TOO STUPID TO DO ANYTHING ABOUT HIM.WHAT HAS HAPPENED TO OUR CONGRESSIONAL PROTECTION WE USE TO BE SO PROUD OF.THIS MAN CANNOT BE THAT STUPID AS TO SAY HE DID NOT KNOW!HE KNOWS EXACTLY WHAT HE IS DOING.WE NO LONGER HAVE A MAN STRONG ENOUGH TO STAND UP TO HIM.GOD PLEASE HELP US BECAUSE I CANNOT SEE OUR STATE REPRESENTATIVES DOING ANYTHING ABOUT THIS STAIN ON AMERICA!

Thursday, November 14, 2013 at 7:09 PM

CATHERINE LESLEY in NEWNAN,GEORGIA 30260 replied:

IT IS TIME FOR AMERICANS TO STICK TOGETHER AND DEMAND BETTER FOR OUR CHILDREN AND GRANDCHILDREN.WHEN I HEAR THIS PRESIDENT ACTING AS TH O HE TRULY CARES I GET SICK TO MY STOMACH.WITH ALL THE LIES AND FINANCIAL TROUBLE HE HAS CAUSED AMERICANS,IS TIME TO STOP.THE SENATORS HAVE TO KNOW THAT THEY CAN LEAGELLY REMOVE THIS MAN .WHY DONT THEY /OR WONT THEY.DOES HE HAVE THAT MANY IGNORANT PEOPLE IN HIGH PLACES THAT SUPPORT HIM.SOMETHING US AMERICANS DONT REALIZE YET?WHAT IS IT?WHATEVER IT IS IT REQUIRES AN IMMEDIATE FIX NOW!

Thursday, November 14, 2013 at 7:17 PM