Pensacola Health Care Insurance Lawsuit Notes From Today

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Bonita Colley, Pensacola TAC chapter coordinator attended the lawsuit hearings today brought against the general government’s “Obamacare.” Bonita has provided an excellent eye witness account of the proceedings.- FL TAC 

Written by: Bonita Colley

Today, December 16th, 2010

Federal Courthouse in Pensacola, Florida

At 9am sharp court was in session to hear the case of the 20 States against the Federal Government’s Health Care Insurance Mandate.

Plaintiffs: To represent the state of Florida was Attorney General McCollum, future Attorney General Bondi, Special Council to the A.G., Deputy of A.G.; Representatives from the States of: Texas, Louisiana, Georgia, Alabama, Nebraska, and Utah. 

Defendants: There were 4 representatives for the Federal Government. (They introduced themselves as the Attorneys of the “United States” ~ (In my opinion that is a misnomer because 20 of the states can not sue themselves as they are part of the United States.)

I am not an attorney nor a reporter so this article will be on what I witnessed and heard in the court room to the best of my ability as a citizen of Florida.  My opinions will be stated within brackets.

Federal Judge Roger Vinson began by reminding everyone that the 3 branches of the Federal Government and the State Governments take an oath to uphold and defend the Constitution of the United States.  He then directed everyone’s attention to the painting in the court of Judge John Marshal, the first Supreme Court Justice.

 The Plaintiffs attorney began by stating that the Health Care Lawsuit violates the Constitution and will end up going to the Supreme Court.  He then went on to state that Arizona now has a State Constitutional Amendment on the National Health Care issue. ( Tenth Amendment Center on this Amendment) (Arizona voters: approved the constitutional amendment to opt out of state- or federally-mandated health-care coverage.)

He went on to say that the Medicaid roles will increase by 30%  which will be an injury to the states and the structure of the Federal Mandate relies upon Medicaid.

The Plaintiffs attorney, David Ripkin then took time to say the Commerce Clause governs over the common good of all and is held within the Federal limited enumerated powers.  Where as compelling individuals to buy health insurance would fall under General Police Power which is an action held by the states alone. 

Under the Commerce Clause congress regulates the channels of activities between the states of people and things.  The Police Powers are left to the states alone. 

Next to be brought up was the  Necessary and Proper Clause

Plaintiff stated that Individuals can not be regulated under the Commerce Clause.  This went into a discussion over the changes made to the Commerce Clause in the 1930′s.  Then a discussion over Economic Decisions vs. Economic Effect Decisions of individuals.

Congress lacks the power to institute mandates upon individuals.  Mandates upon individuals compels a person to act so this falls under General Police Power and that power lies with the state.

The health care market is 1/6 of the US Economy. So in the interest of Congress they try to find ways to insert more money at the front end and try to find ways to limit the out flow at the end.

This is the excuse of the federal government to say a mandate on the individual falls under the Necessary and Proper Clause; this works within the enumerated powers.  Plaintiff argued that the mandate on the individual is not essential to regulate the health insurance industry.  The individual is remote and falls under the police power.  He then went on to stress the Necessary and Proper Clause works under the enumerated powers in the Constitution.

Next point brought to light is the case of United States vs. Comstock bringing about the different layers of the Necessary and Proper Clause ~ Danger of Federal Police Power.  Then stated the 5 Considerations in the Comstock case. 

If the health care issue is granted on the side of the Federal Government by standing on the Necessary and Proper Clause then this would destroy State Sovereignty.  Comstock would not help defense case.

Individual mandate helps congress in objective of regulating in order to help private insurance from failing.

Next Raich case concerning cannabis under the Commerce Clause could not be used within this case.  Opinions were expressed by Plaintiff attorney and Judge.  Judge ended saying this was like comparing apples and oranges.

Plaintiff then summarized that the Individual Mandate should be struck down.

Next argument was over Coercion of Health Care Mandate.

Plaintiff cited South Dakota vs. Dole  (The last condition, the Court explained, means only that Congress cannot use a conditional grant to induce states to engage in unconstitutional activities… Only the last produced even a serious argument from the Court. O’Connor, in dissent, suggested that Congress’s interest in setting a minimum drinking age of twenty‐one was insufficiently related to its interest in highway construction under the third part of the test.)  Pressure to Compulsion, force states to do Federal bidding.

If the states do not comply then they will lose 40% of all Federal Grants of Medicaid.  This is 11.5% of the State of Florida’s budget.  Medicaid under the new health care mandate will be 1,270 times larger than it is now.  The Health Care Mandate eliminates the Medicaid plan the states agreed to and signed.  Citing Harris vs. McCray (could not find this case, I may have written down the wrong name)

Judge then brought up that 2 of the states are considering opting out of the Medicaid system. (could not find this exact wording in an article but did find two states that are poised to opt out of new public health plan ~ read here.)

With the new mandate it would raise the eligibility of medicaid to those making 128%  (family of two would be $18,649.60) above poverty line. With this criteria it would put a larger burden upon the states.

The 2009 Poverty Guidelines for the
48 Contiguous States and the District of Columbia
Persons in family Poverty guideline
1 $10,830
2 14,570
3 18,310
4 22,050
5 25,790
6 29,530
7 33,270
8 37,010
For families with more than 8 persons, add $3,740 for each additional person.

The new Health Care Mandate changes the complete fabric of the Medicaid system and this is not something the states agreed to concerning medicaid.  The new mandate can not function if the states withdrawal from Medicaid and the poor in that state would not be protected with any medical care coverage.

Congress is wielding a “stick” over the states by creating this change in Medicaid to be in compliance with the new Health Care Mandate.  Again this is Coercion.

Plaintiff then gave another option that could be implemented: Congress could phase out Medicaid then offer New Medicaid to states, then states decide to agree or not.  But as it stands now the states are denied the choice.  He went on to cite the case ofLee vs. Wiesman showing deprived of choice. The Judge once again stated comparison of apples and oranges.

Plaintiff underlined that the Health Care Mandate does not allow the states an unfettered choice to comply and puts into question the Duo Sovereignty and not being subservient to the Federal Government.

It was brought to the front that in 2019 the states will pick up the whole burden of this mandate.  These cost will exceed the “savings” stated by the Federal Government for the years leading up to that time.

Future predictions there will be a severe shortage of health care providers, so the cost to state to obtain the needed providers to cover this mandate will be high, then add the cost of litigation when the state is not able to obtain the numbers of providers mandated, and then the CMS yanking the funding when the providers are not obtained.  All these in perspective it is unreasonable to place such a mandate upon the states.

The next point the Judge wanted discussed was Severability. (I am not too sure what this implied.)  Plaintiff then stressed again that the Mandate can not stand nor function on its own without the placement of Medicaid.  Congress removed the severability clause.  (does this mean you can not pick and choose the parts of the mandate to comply with, ie. opt out of medicaid?)   The Individual mandate part is unconstitutional.  The judge then brought up the parts of the mandate that are already in place, such as, FLSA stating employers must provide a place for nursing mothers.  (interesting concept)

~Injunctive Relief ~ Statute outside of constitution must go.

We then took a 15 minute break as the Judge stated it is common knowledge that the human bladder must be relieved every 1 hour and 45 minutes. (He does have a sense of humor!)

Defendant then took the floor.

His opening remark was that “The Plaintiff is trying to turn back the  clock on the Constitution and limit the power of Congress!”  (Oh this gets interesting!)

He said the mandate “encourages individuals” to purchase health insurance to pay now for health care later.

The judge then stated there is a difference between the Health Care Market and the Health Insurance Market.  He explained by saying:

Health Care Market encompasses; Hospital care, Doctor care, over the counter medicine, prescriptions, herbal remedies, holistic care, etc.

where as

Health Insurance Market is only coverage of a limited few areas of the Health Care Market.  So what gives the right to govern the Health Care Market with the Health Insurance Market? 

Defendant went on to say there in an inter-relation of the 2 markets.  The Health Insurance Market is the machine of finance of the Health Care Market.

The judge then went on to say that Health care is a substantial and unpredictable thing.  People are not allowed under the mandate to chose a “catastrophic” insurance, now the insurance must cover everything and likened it to car insurance covering things like oil change and tire replacement.  All in consideration of the new mandate.

Defendant said that congress was concerned about uncompensated care. (explaining why so much must be in the insurance everyone is to purchase.)  Stating that the uninsured are active parties in the health care system from well visits to emergency room visits and this mandate would place partial burden upon those who are now uninsured.

Judge then asked; “Is there any limit to congress if all decisions have economic impact?”

Defendant then stated that Health Care Insurance is a different purchase compared to other purchase decisions.

In the 1930s a change happened in interpreting the Commerce Clause.

Judge interjected again stating; “There are ways to take care of poor ie. state run hospitals.

Congress determines “how” you will pay for services.  Congress has power when purchases are National in scope.

Discussion ensued over the Commerce Clause as it relates to the 5th Amendment (nor shall private property be taken for public use, without just compensation), Eminent Domain was brought into the discussion.

Determining between National or Local gives the justification of the Commerce Clause.  $2.5 trillion Health Care Market, with reforms on preexisting conditions etc. with Minimum coverage provision. 

Judge then brought up the opt out penalty against individuals who do not get this coverage, is this penalty applied to insurance for this person?  This mandate prohibits just purchase of catastrophic.  There are many options available instead of this extreme mandate.

Defendant then addressed the Necessary and Proper Clause stating that the Necessary is “to regulate” and the Proper by “putting the burden on people who benefit.  (now I quote the defendant) “People have the right to have their medical bills paid.”  (What??????  They have the RIGHT to have their medical bills paid?  Where pray tell is that written?  Doctors and Hospitals have the right to be paid for their services rendered but people do not have the right for someone else to pay their medical bills! good grief!)

The judge then said; “Why should I modify my life and beliefs to conform to this mandate?”

Defendant then stated the Federal Government can not commandeer from the states but they can the individuals.  (again WHAT????  The state is the protection for their citizens!  Where and how do they justify that the federal government can commandeer from individuals?)  He then went on to say our founders wanted a stronger central government. 

He likened Medicade as to the same as highway funds linked to drinking age and speed limit.  He then addressed the issue brought to the front by the Plaintiff about state spending going up 1.9% and explained that the federal government will bear the cost 100% in the beginning then 90% there after.

Then stated that in 1934 the Supreme Court expanded the Commerce Clause. ( I could not find the exact cases but this site give a good overview of how the Commerce Clause has been bent and reshaped by the Supreme Court. Supreme Court Expansion ) (If anyone could enlighten us with a better link that explains this issue better please feel free to post under comments.)

He went on to say that Grants allow the Federal Government to dictate terms of receiving these funds. (and where do they get these “funds”?)

Defended then took up the issue of Severability.

Something was said about the “Free Enterprise Board of June 2010″

As for the State Standing the defense strongly disagrees on the states rights to be in this suit who did not bring evidence at time of suit.  He claimed that 9 of these states did not bring evidence so should not be considered in this suit, but 11 states did.  He said passing statutes after the suit was brought forth can not stand.  He went on to say something to the affect of the States do not have standing to sue the Federal Government.  They can’t challenge severability and sue against mandated taxes. 

Injunctive Relief – Stating the fact that it won’t be until the year 2014 that this takes affect that states can not sue for punitive before hand. (Can not the same argument be used to say you can not force health insurance before health care is needed?)

Plaintiff then took the floor again for closing arguments ~

He began by sharing the quote; “The Constitution protects us from our own best intentions.” (as I researched this on the net this is what I found about this quote: 

~Also over at my table is a copy of the Supreme Court decision written by Justice Scallia. We’ve heard his name before. And if you don’t have this, they cost me a dollar fifty to make them, and so I want you to have it. If you can’t afford the dollar fifty, take it anyway. You can make as many copies of this as you like. Okay? Its extremely powerful. You would think that the Constitution was completely restored when you read through this. It was odd it was based on the Tenth Amendment. And I believe that this is where your sheriff really comes in to count here.

James Madison said in the Federalist Papers: “We can safely rely on the disposition of the State Legislatures to erect barriers against the encroachments of the national authority.” That’s what your sheriff’s supposed to do, that’s what your governor’s supposed to do, that’s what you mayor, city council, county commissioners, dogcatcher, are all supposed to do. Teachers, school boards all of them. They are autonomous, you can see it right here, they are sovereign — and yes, under article 1, Section 8, the federal government does have superior authority under those eighteen assignments, eighteen duties. Anything outside that they cannot do it. And so they are probably about 98 % in everything they do outside the Constitution.

On the bottom of page 19 it gave me the greatest reward we could have ever had. Justice Scallia, and I quote, said this: “But the Constitution protects us from our own best intentions.”~ read article here)

He went on to say the Commerce Clause can not regulate individuals.  This is a commandeering of the Free Market Economics.  He then went on to quote Page 12 of the Defendants arguments stating the Health Care Mandate was along the same lines as commandeering individuals to raise armies.

The new Medicaid laws need to be unambiguous so the states can make a knowing and unfettered choice.

If states drop out of Medicaid then the states citizens will not only be contributing to the states who follow this mandate but then have the added burden to shoulder the cost of their state’s poor as well.

Our Individual and State Sovereignty must be protected by the court.

Defendant took the floor for closing arguments ~

There is a different view of State Sovereignty since the 1930′s.  It is a case between Formalism vs. Flexibility.  The Commerce Clause must be defined on what is Properly Local or Properly National.  What has affect on interstate commerce.

The judge then stated he would make his judgment soon but could not give a date. 

(That is the end of my notes.  Like I stated in the beginning, I am but a citizen witnessing the proceedings and deciphered them to the best of my ability.  I do hope all criticism will be merciful.  The privilege to sit and listen to history being made was a humbling experience.  In my opinion I believe the Federal Government wants this to go to the Supreme Court in hopes to make the last dramatic change to our Constitution that will strip away all State and Individual Sovereignty and make the Federal Government Lord and Master over us all.  I just hope at this time the state legislators will realize they do have the power to declare nullification.  It will not be easy but we all must sacrifice in order to regain our freedom in this country.  Do we really want the general government dictating to us how we take care of our own health?  Those of us who lean more towards holistic and herbal healing remedies will be made criminals in the process of deciding upon the true course of health. 

I did appreciate the humor of Judge Vinson and the way he laced it through all the complicated arguments.  Yet, there just isn’t a way to figure out the ruling or what exactly the judge will rule upon.  If you get anything from my meager view point I hope it is a learning experience of how we got to where we are and how our Constitution has been warped through the years with many of the court cases and rulings.  Without really realizing it our own view points have been changed from the many rulings and underhanded ways of past presidents ie. the New Deal! 

I will try to update in some way on when Judge Vinson gives his ruling. )

 Below is the link to the first time I reported on this suit in September.

National Healthcare Lawsuit

Bonita Colley is the Chapter Coordinator for the Pensacola Metro Tenth Amendment Center Who are you Mrs. Tenth Amendment Center Lady? I am a wife, mother, grandmother. I have worked from serving tables to mechanic on aircraft in the military. I have taught home school to Sunday school. My roots and patriotism runs deep back before the Revolutionary War. I care about the people and the government of this great country. I do not know it all and never claim to know it all, the day you quit learning is the day you die! I enjoy debate and a challenge. I can be serious and I can be a crack up. I love to laugh, learn, and listen to others. I enjoy sci-fi movies and reading books on history. I was born in Alaska and lived all over this great country. If you would like for me to come share with your liberty minded group, be a guest on radio (that would be a first), set up an information table at your event, or just serve by sending you information please feel free to email me. :-) bonita.colley@tenthamendmentcenter.com

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EDITOR’S NOTE: The views expressed in the above post are those of the individual author only. The article is presented here to foster discussion, and does not necessarily represent the views or positions of the national Tenth Amendment Center.
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