One question legal minds might entertain when pondering whether ObamaCare ought to be overturned is this: Should any law be constitutional that is so damned ugly? Whether one looks at process, product, implementation, or its legal defense, ObamaCare is unrelievedly repulsive. Better to strangle such monstrosities in their cribs than let them propagate.
Of course, aesthetics was not on trial in Florida v. United States Department of Health and Human Services. But as America waits for the Supreme Court to render its decision later this month on the constitutionality of the Affordable Care Act (ObamaCare), let’s go down memory lane and consider the process that got us here.
In his 2008 campaign, candidate Obama was against the mandate that individuals buy health insurance. But Obama had also campaigned on “change,” and so upon attaining the presidency he did just that and accepted a bill where the mandate was the funding linchpin. As a candidate, Obama made pledges that the process of writing the bill would be transparent, with real-time updates on C-Span and the Internet. Pledges of transparency were tossed aside when it came to dealing with the pharmaceutical industry and its drive to block re-importation of drugs from Canada. Other aspects of process to consider include:
Waiting for comedian Al Franken’s stolen election in Minnesota to be finalized so that the Senate would have a filibuster-proof majority; the Senate’s ramming through of the bill in the dead of night on Christmas Eve; the shenanigans after the Senate lost its super-majority with the election of Scott Brown, which include the House deeming the bill to have been passed without an actual vote, as well as problems with reconciliation; looting half a trillion dollars from an old entitlement (Medicare) to pay for the new entitlement; the dishonest scoring in trying to sell the bill; lies about the cost of the bill; the legal niceties of whether the individual mandate is a tax; Speaker Pelosi’s assurance: “We have to pass the bill so that you can find out what is in it.”
Surely, this cannot be what most normal people think of as “good government.” Nevertheless, the hideousness of the process was baked into the product — a 2,500-page behemoth ugly as sin. From his Olympic heights at the signing ceremony, Obama snarled: “release the Kraken.” But no one, save Betsy McCaughey, had read the monster and now it was the law of the land.
After enactment, the feds got crackin’ on the Kraken; they began implementing ObamaCare. It was the Age of the Regulators, which, like the Third Reich, would last a millennium. (If you’re a Democrat, a millennium is a thousand years.) Over a thousand “waivers” to complying with ObamaCare were handed out to Obama’s friends, mainly unions (and a few D.C. blow dealers). HHS Secretary Sebelius began a War on Religion, mandating that contraception, sterilization, abortifacients and such be covered by the health insurance policies offered by religious institutions. (There were unconfirmed reports that some Muslim institutions petitioned Sebelius to mandate that female circumcision (e.g., clitoridectomy) also be covered by insurance so that there would be no reasonable objection once it is required of all American women.)
In any event, Roman Catholics rebelled. An insulting “accommodation” was granted, and the pious were put in the uncomfortable position of having to choose between incurring the wrath of Obama and that of the Deity. They chose the former, even as Obama Himself assured them that there was no difference. Catholics continued to rebel and 43 institutions filed 12 First Amendment lawsuits — all destined for the Supreme Court.
One troubling aspect of implementation was proceeding with it while the legality of the bill was being challenged — if struck down, all that expense would have been wasted. Nevertheless, the administration proceeded with implementation even as they racked up losses in the courts.
Perhaps the most embarrassing legal defense conjured up by Obama’s lawyers was that the individual mandate, despite what the president had said, was a tax after all. Calling the penalty a tax was an attempt by Obama’s lawyers to bring ObamaCare within the ambit of the tax powers of Congress, and thus bolster claims of its constitutionality. This pathetic ploy was elegantly shot down in 2010 by Judge Henry Hudson in Virginia v. Sebelius, but Obama’s lawyers stuck with it anyway.
So now we are left waiting to see if there are five justices on the high court who not only know the Constitution, but have a sense of aesthetics, too.