December 4 2012
Will ObamaCare Go the Way of McCain-Feingold?
One of the most depressing aspects of the outcome of the election is that it ratified ObamaCare. We are now stuck with this massive federal seizure of one-sixth of our economy.
But maybe we aren’t.
David Catron, a health care revenue cycle expert, suggests in the American Spectator that ObamaCare could go the way of the moribund McCain-Feingold campaign finance legislation.
It was very depressing to challengers of McCain-Feingold when the Supreme Court upheld it in 2003. Critics of McCain-Feingold rightly saw the law as undermining the First Amendment. But, like advocates of overturning ObamaCare, they were defeated by the high court. But they kept fighting.
Lawsuits challenging McCain-Feingold continued but had little success until 2007, when the justices ruled that it was unconstitutional to prohibit campaign ads from mentioning the names of candidates within a defined period before the election.
Then Court overturned another crucial provision of McCain-Feingold in 2008. The death blow came in 2010 with the Citizens United ruling.
Catron see this fight as a precedent for dealing with ObamaCare bit by bit. He asks:
Are the legal foes of Obamacare as numerous and determined as those of McCain-Feingold? The answer to that question is an unequivocal YES. Their numbers are greater, they are far better financed and they are demonstrably more dedicated to the cause. In fact, the dragon's teeth sown by the Court's misguided June ruling produced a spate of fresh troops to reinforce those already on the legal battlefield. There are now at least forty legal challenges to the law pending in federal courts involving its various provisions as well as its implementation.
A lawsuit filed by Liberty University, a Christian college, has just been revived by the Supreme Court. Liberty filed the suit claiming that ObamaCare violates its religious freedom. The Fourth Circuit Court of Appeals originally declined to rule.
There is no guarantee that Liberty will win. But there are also dozens of other suits against ObamaCare by religiously-based employers. These suits and no doubt others as not yet filed offer hope. Just one hitch:
Unfortunately, an important factor in all of this involves the longevity of the remaining Supreme Court justices who heed the Constitution. If one or more of these is promoted to that great tribunal in the sky, and the president is able to appoint another administration lackey like Elena Kagan to the Court, Obamacare may well be safe.
On the other hand, if any of the serious challenges to PPACA arrive on the docket before any of the "conservative" justices shuffles off this mortal coil, the legal system may yet prove itself not to be an ass after all.