McCaughey: Obama Had to Send Health Law to High Court

Wednesday, 28 Sep 2011 07:50 AM

By Martin Gould

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The Obama administration had no choice but to refer challenges to its signature healthcare law direct to the Supreme Court. Without that decision, uncertainty could have lasted for years, expert and former New York Lt. Gov. Betsy McCaughey tells Newsmax.

“I was thrilled when I heard,” she said. “The country would have been outraged if the administration had prolonged this litigation and allowed the nation to remain in legal limbo.

“States and businesses are spending in total billions of dollars preparing for a law that may never go into effect.”

Opposition to the law has remained constant, not just because of what it says but because of government actions, such as granting waivers and uncertainty over whether it would be overturned, McCaughey said in the exclusive interview.

“That uncertainty is costing the nation jobs. The administration cannot afford to allow this legal uncertainty to continue,” she said.

McCaughey, a long-term critic of so-called Obamacare, described the administration’s act as “a high-stakes ploy” given the make-up of the Supreme Court and the fact that a decision is now likely to come shortly before next year’s presidential election. But she said that, as it was inevitable that the challenges would end up there eventually, it is far better that they should be heard sooner rather than later.

“No one can tell you its chances,” she said. “It’s about 50/50. It will be a very close decision.”

McCaughey believes the entire future of healthcare now rests in the hands of one man, Supreme Court Justice Anthony Kennedy, as the decisions of the other eight members of the court are all predictable — with Justices Breyer, Sotomayor, Ginsberg, and Kagan seen as likely to vote in favor of the administration and Scalia, Thomas, Alito, and Chief Justice Roberts likely to vote against.

“It’s never easy to predict how the justices will vote, but the people who watch these justices predict that is the way it will come out,” she said. “I would like to think that they all will put their understanding of the constitution ahead of political consideration.

“But many of them have a very expansive view of federal authority and are judicial activists who are apt to accept expedience as a ground for enlarging government power. The Obama lawyers have argued on the grounds of expedience saying we have to force people to buy insurance.”

Kennedy, she said, has a history of “showing great deference” to the federal system. “Let us hope that Justice Kennedy is committed to preserving our federal system.”

The administration made the decision to go directly to the Supreme Court on Monday after a three-judge panel of the 11th Circuit Court of Appeals ruled that the law’s requirement that virtually all Americans must buy health insurance was unconstitutional. The alternative would have been for the decision first to go before the entire Atlanta-based circuit.

But as it is almost certain that any decision made by the full court would end up being appealed to the Supreme Court, the administration decided to short-circuit the process. A final decision from the Supreme Court could come around June, right in the run-up to next year’s presidential election.

The Supreme Court should agree with the three-judge panel because the administration’s argument that all Americans are “inevitably and universally engaged in healthcare commerce” does not hold water, McCaughey said.

“That is the false claim made by the Obama lawyers again and again before every panel” she said. “That is simply not true.”

Figures show that half of all Americans use virtually no healthcare, at least until they are 65 and can be covered by Medicare, while 5 percent of the population take up roughly 50 percent of all healthcare costs, she said.

“Healthcare needs are highly skewed,” she said. “It would be like requiring everyone to buy flood insurance — even those who live on top of a hill.

She also noted that the 11th Circuit dismissed the administration’s contention that mandatory insurance is necessary to eliminate “free riders."

“The decision pointed out that free riders are largely illegal immigrants who, of course, are unaffected by the mandate, they are exempt from it; or lower income people who will be provided for by the expansion of Medicaid and also will not be compelled to buy private health plans.”




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