Legal Setback to Obamacare Batters Democrats as Midterms Loom

Friday, 15 Oct 2010 01:44 PM

By David A. Patten

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The double whammy of constitutional challenges in Florida and Virginia against Democrats' massive healthcare overhaul on the eve of the midterm elections is shaping up to have major implications in tight races nationwide, political commentators tell Newsmax.

On Thursday, a federal district judge issued a stinging order rebuking Justice Department attorneys for using "Alice-in-Wonderland" arguments against a 20-state lawsuit challenging the constitutionality of Obamacare.

Judge Roger Vinson, a Reagan appointee to the bench, ordered a trial of the lawsuit to begin Dec. 16. Florida Attorney General Bill McCollum described the ruling as nothing less than a "victory for the American people."

Adding to the administration's political woes: On Monday morning, arguments in a similar-but-separate lawsuit against Obamacare, which was filed by Virginia Attorney General and rising GOP star Ken Cuccinelli, are scheduled to get under way in Richmond, Va.

The timing for the issue to make headlines could hardly be worse for Democrats. Polls show the Patient Protection and Affordable Care Act continues to be unpopular with voters.

The House passed the measure this year via the legislative maneuver known as "reconciliation," a process generally reserved for bills focusing on appropriations and the federal budget. Until now, Democratic leaders scoffed at any suggestion they could lack the constitutional right to order all Americans to engage in economic transactions not required by the states in which they live.

Last October, a reporter had the temerity to ask House Speaker Nancy Pelosi, D-Calif: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”

Pelosi's imperious response was vintage Beltway hubris: “Are you serious?" she asked, aghast. "Are you serious?”

Later, her spokesman told the reporter: “You can put this on the record. That is not a serious question. That is not a serious question.”

But so far, two federal judges have determined that question to be a very serious one indeed. And Democrats fighting the adverse tide of this election cycle may find it increasingly difficult to explain why they didn't focus more of their political capital on creating jobs, instead of creating of a vast new entitlement program.

Kenneth M. Duberstein, who was Ronald Reagan's White House chief of staff in 1988, notes that not a single Democrat is running ads this cycle touting their support for healthcare reform.

Wisconsin Democratic Sen. Russ Feingold ran an ad that promoted healthcare reform but did not specifically reference the legislation Congress passed.

"What I think is critically important is that it is one more indication that Barack Obama overreached," Duberstein said of Judge Vinson's ruling that allows the legal challenge to Obamacare to continue. "The liberals in Congress, led by Nancy Pelosi and Harry Reid, overreached. They didn't fix our healthcare system. They didn't control costs. As a result, they've totally alienated a majority of Americans.

"The people understand that Barack Obama was elected to fix the economy," he adds, "and not to tinker with the wholesale change of our healthcare system.

"To the extent that people care," Duberstein tells Newsmax, "and I think they do, I'm sure this will have an impact. The only time healthcare reform is mentioned in the debate is when Republicans are running against it, and Democrats are running from it. That tells you something about the potency of the issue in the political debate."

Both the Florida lawsuit and the one going to trial on Monday play into the oft-repeated tea party message that liberals have expanded the reach of federal governance beyond the constitutional limitations as established by the Founding Fathers.

Matt Kibbe, the president and CEO of FreedomWorks, a conservative organization that has supported tea party organizations around the country, says keeping Obamacare in the news is bad news for Democrats, especially in close races.

"I think it's going to make more clear that Nov. 2 is a referendum on Obamacare, because as we proceed with the court challenge, we need to continue to drive public opinion.

"But we also need a new Congress that is going to demonstrate its desire to repeal and replace this legislation," he says. "That affects how the courts think about these issues. If you look at the way courts make decisions, it's always the case that public opinion matters."

Kibbe cites recent polls that show voters' two most frequent objections to Obamacare mirror key talking points of the tea parties.

"One is that it's an overreach of big government, and government just shouldn't get this involved in people's lives," Kibbe tells Newsmax. "And two, that the country can't afford it.

"You would think that it would have been about something more personal… 'I don't want the government between me and my healthcare,' or 'I'm worried that my premiums are going to go up.' No, these are national issues about the proper role of government, and that the government spending too much money it doesn't have."

Kibbe finds that a hopeful indication the tea party message is resonating with American voters.

McCollum tells Newsmax the recent rulings make opposition to Obamacare an even better issue for conservatives on the campaign trail.

"I think that people are going to have to take note of this now and say, 'Look, this is serious,'" McCollum says. "We've said all along this is not political, this is very fundamental."

McCollum adds that even Democratic attorney generals have expressed concern about state sovereignty, as well as the requirement that all individuals purchase healthcare coverage.

"I think we are making this case and will make it all the way through," he says. "And this is not just political. Will it have some ramifications on the elections? I think so, because I think it shows we have a meritorious case.

"This is not frivolous, this is not political. It is a really serious legal matter that will go to the United States Supreme Court and will be a very, very important decision when it's read," McCollum says.

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