Legal Center: Obamacare Devastates Companies

Monday, 29 Nov 2010 10:54 AM

By Dan Weil and Kathleen Walter

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The Democrats’ new federal healthcare law is hurting small businesses big-time, says Karen Harned, a lawyer with a national business group that has joined in the 20-state lawsuit against Obamacare.

“It is really having a detrimental impact on small business owners,” says Harned, executive director of the National Federation of Independent Business Small Business Legal Center. “Our members are suffering from even higher premium increases than in the past two decades. And a lot of them are having trouble even keeping the coverage they have, which we were all promised.”

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Insurers are telling many small business owners that the plans they have now won’t be offered again next year, she tells Newsmax.TV.

“In so many aspects of this healthcare law, Congress went too far,” Harned contends. “There’s no better example than the commerce clause. Congress has broad authority under the commerce clause to regulate economic activity. But we aren’t talking about activity.”

The issue actually is inactivity. “We’re talking about the choice somebody makes to not engage in commerce,” she says. “For the first time, Congress is using the commerce clause to compel individuals to engage in economic activity. We think that’s fundamentally unconstitutional.”

The next court hearing for the lawsuit the federation has joined with 20 state attorneys general is Dec. 16. In October, Federal Judge Roger Vinson rejected three of the states' six objections to Obamacare and ruled another one moot.

But he gave the states and the federation permission to press forward on the two points most legal analysts say are their strongest:

• That a federally mandated expansion of Medicaid will "run [state] budgets off a cliff."

• That the individual mandate requiring people to have healthcare insurance exceeds the federal government's constitutional authority, under the Commerce Clause, to regulate interstate commerce.

Observers agree that the suit is on a track that will put it on the U.S. Supreme Court docked.

And what if the suit fails (and/or Congress doesn’t force a repeal or broad scaling back)?

“If the individual mandate is allowed to stand, it’s hard to imagine what law Congress could pass under the commerce clause that would be ruled unconstitutional,” Harned says.

“Laws like telling us how many fruits and vegetables we have to eat every day. There would no longer be a constitutional backstop against laws like that.”

Harned noted that, during Elena Kagan’s confirmation hearings, the newest Supreme Court justice refused to say that a law requiring individuals to eat five fruits and vegetables a day would be unconstitutional.

“Our concern is that there will be no end to the scope of congressional power over our lives if the individual mandate is upheld,” Harned says.

And the principles run broader than healthcare, she says, adding, “This lawsuit isn’t just about healthcare. It’s about all our fundamental freedoms.”

Regardless of whether Congress repeals the law, she says, “it’s critical for the court to weigh in that Congress can’t compel you to buy a product or a service.”


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