Republicans: Take ObamaCare to Court

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.

The Patriot Post® · Republicans: Take ObamaCare to Court