Health Care Law’s Achilles Heel? A Growing Legal Morass

Achilles death clip art

The Achilles of mythology was a mighty warrior who seemed invincible. It turned out he had a weakness and it was his undoing. According to one version of the legend, the arrow to Achilles’ heel was guided by the god, Apollo, who sought vengeance for the death of his son.

There are a number of well-kept secrets about the health care law, but I think the increasing legal morass has become the most important. “Morass” is a negative word: A growing number of citizens, businesses, and the state of Oklahoma have turned to the court system to seek relief. This means Americans are – or can show they reasonably expect to be – increasingly bogged down (or damaged) by the health care law and attendant reams of regulations and rules promulgated by unelected appointees and bureaucrats. But, if the growing pile of legal problems were responded to proportionally, both in the form of legal challenges and effective pressure, it would be the federal government bogged down – specifically it’s ability to execute the health care law – and less so the citizens.

Perhaps then, elected officials and bureaucrats would finally do the obvious, meaning they’d scrap the law and be forced to have a real debate about health care1 When I reference a “real debate about health care”, I do mean to say that for this issue, saying no is not adequate. Our health care economy is broken and the status quo cannot stand. The real issue is not disagreement regarding whether the system is broken, the disagreement is about how to fix it . For that turn of events to ever come about, however, the growing legal problems can’t remain a well-kept secret .

What national headlines there have been regarding “ObamaCare”, have focused on the controversy regarding the Obama Administration’s delay of the employer mandate, apparent “buyer’s remorse” by labor unions, yet-another proposal from some Republicans to “defund ObamaCare” and the predictable round of condescending lectures by GOP card-carrying members of the Ruling Class2 By labeling Karl Rove as a “card-carrying member of the Ruling Class”, I’m specifically referring to a definition in a work mentioned in GiN articles so many times before: Angelo M. Codevilla’s essay, “America’s Ruling Class and the Perils of Revolution”. For Mr. Rove, I added the additional modifier “GOP”, to acknowledge his unique role as apparent ongoing architect of Republican Party establishment policy. For an analysis of Nebraska state level politics using Codevilla’s description of the political landscape, see our work “Nebraska’s Ruling Class and the Perils of (Assisted) Political Suicide”. , like Karl Rove.newspaper clip art

Within states, the headlines – if there have been any – mostly cover a retread of the same worn-out debate points from four, three, and two years ago. In some states, the retread is followed by a predictable cave-in by legislators and governors in the form of Medicaid expansion – a health care law provision more than half of the states’ attorneys general sued to block.

Nebraskans can consider the paragraph above as a description of 2013 – 2014 in the Capitol. Unfortunately, we’ll get to rehash the retread before the cave-in occurs…which it will…absent…hmm…spine transplants for the GOP super majority?…divine intervention?

With that in mind, let’s review: while Congressional Republicans tell those who are paying attention to the issue at all, that the ONLY way to “stop ObamaCare” is to focus like laser beams on Congress (again) and await another miracle that will not come, state officials and bureaucrats continue to entangle their states even further in the health care law’s spider web3 Earlier in this article, I referred to state legislators’ and governors’ efforts to expand their Medicaid programs. In addition to that active assistance in implementing the health care law, governors and legislators have entangled their states further in various ways through actions regarding insurance exchanges. While these two health care law elements are related, they do constitute individual elements. . Meanwhile, the few actually effective and viable pathways for protecting citizens from the assured damage, remain largely untapped and even less well known.

Just WHY the legal challenges have been ignored is a subject too lengthy to tackle here. But, just WHY the legal challenges are worthy of attention, is a subject that needs to be addressed. To do so doesn’t require much time, however: I’ll just point to a single, but important truth. Any notion that the Supreme Court ruling in June 2012 was the culmination of a thorough, definitive legal process regarding the 2010 health care legislation, is just plain false. By thorough and definitive, I mean, including, but not limited to, a comprehensive evaluation of all the potential legal issues presented within the text of the health care legislation and careful deliberation regarding what to challenge. There is one key fact that proves there is no way the Attorneys General could have presented a thorough case: the AGs’ lawsuit was filed March 23, 2010. The final, compiled version of the two bills4 What we all refer to as “the health care law” was actually two bills; The Patient Protection and Affordable Care Act of 2010 and a huge set of amendments + federal take over of student loans, The Health Care and Education Reconciliation Act of 2010. The final, compiled version, is marked “As amended through May 1, 2010″ and dated June 2010, and is as “readable” a copy of the legislation as is available, because it includes changes made by the Reconciliation Act. we all refer to as “the health care law” wasn’t released until, at earliest, May 1, 2010. Considering what happened in Congress to, git ‘er done, HOW could the AGs have known in adequate fashion all that the legislation contained or had any time to deliberate?

Is there any wonder that more challenges have been filed? Many issues were necessarily left on the table from the text of the legislation as finalized in May 2010. And there should be additional challenges arising from all those endless streams of regulations and rules flowing out of federal agencies.

Dominoes falling clip art The only things worth wondering about, really, are years of campaign promises, a sea of politicians waving white flags, and what looks like a big dominoes game all set up, then, one after the other, Republican legislators and Governors across the land, with few exceptions, grab federal grant funds as they fall over, one by one, in various ways, actively assisting with or acquiescing to implementation of this law.

What you see, below, and will see in a part two, are enhanced, updated versions of a document I produced in May as part of a research packet. Having now spent days on this subject again, five months later, I’m shocked at the lack of attention, from the media and elected officials. I also think it’s downright bizarre that I’ve compiled more information that is up to date here, than is available within the Wikipedia article on the subject. It’s equally bizarre, that searches of Google’s “News” engine for some of the cases listed below, produces one published news article about them5 Note that my search of Google News was for the actual names of cases, meaning I used the standard convention adopted by the court systems and news outlets. For instance, if I were to search for news stories about the Supreme Court cases ruled on in June 2012 regarding the health care law, I’d search for NFIB v. Sebelius. Further, Google News is different from the main Google search engine; the main engine pulls in results from across the internet, including blog posts, images, videos, etc. .

I think it is reasonable to conclude that there exists very little incentive for…anyone with a loud enough megaphone…to make the existence of the growing number of legal challenges filed known to the wider world. As I noted above, just WHY is a subject I’ll have to tackle separately.

I recognize there is a lot of information here – we will publish articles with additional information as time allows.

BUT, this is not all…

As I noted above, there is a part two. The list above reports about active cases. In part two, I report about several important potential issues which could produce more litigation challenging the health care law or, as I’ll detail in that follow-up, action or inaction by state government officials pertaining to the implementation of the law within states.

Images & Graphics Sources

The images and graphics in this article were obtained from the following sources:

“Achilles’ death”  and “internet news reader” from clker.com

Dominoes from freeclipart.net

References & Notes

1.
 When I reference a “real debate about health care”, I do mean to say that for this issue, saying no is not adequate. Our health care economy is broken and the status quo cannot stand. The real issue is not disagreement regarding whether the system is broken, the disagreement is about how to fix it
2.
 By labeling Karl Rove as a “card-carrying member of the Ruling Class”, I’m specifically referring to a definition in a work mentioned in GiN articles so many times before: Angelo M. Codevilla’s essay, “America’s Ruling Class and the Perils of Revolution”. For Mr. Rove, I added the additional modifier “GOP”, to acknowledge his unique role as apparent ongoing architect of Republican Party establishment policy. For an analysis of Nebraska state level politics using Codevilla’s description of the political landscape, see our work “Nebraska’s Ruling Class and the Perils of (Assisted) Political Suicide”.
3.
 Earlier in this article, I referred to state legislators’ and governors’ efforts to expand their Medicaid programs. In addition to that active assistance in implementing the health care law, governors and legislators have entangled their states further in various ways through actions regarding insurance exchanges. While these two health care law elements are related, they do constitute individual elements.
4.
 What we all refer to as “the health care law” was actually two bills; The Patient Protection and Affordable Care Act of 2010 and a huge set of amendments + federal take over of student loans, The Health Care and Education Reconciliation Act of 2010. The final, compiled version, is marked “As amended through May 1, 2010″ and dated June 2010, and is as “readable” a copy of the legislation as is available, because it includes changes made by the Reconciliation Act.
5.
 Note that my search of Google News was for the actual names of cases, meaning I used the standard convention adopted by the court systems and news outlets. For instance, if I were to search for news stories about the Supreme Court cases ruled on in June 2012 regarding the health care law, I’d search for NFIB v. Sebelius. Further, Google News is different from the main Google search engine; the main engine pulls in results from across the internet, including blog posts, images, videos, etc.
6.
 Jon Bruning was one of five candidates in the GOP primary race and was widely considered the favorite of the NEGOP leadership. Other candidates were State Treasurer Don Stenberg, Pat Flynn, retired investment adviser and insurance broker from Schuyler, Spencer Zimmerman, whose general engagement in the campaign was minimal, and, Valentine State Senator Deb Fischer, who won the primary and went on to defeat Democratic candidate, former Nebraska U.S. Senator and Governor, Bob Kerrey in the General Election in November 2012.
7.
 A note of caution: National Women’s Law Center supports abortion on demand, homosexual “rights”, etc. While NWLC’s information seems accurate and up-to-date regarding litigant names, in providing links to documents, dates of actions in cases, etc., my examination of explanatory information provided many skewed statements which lack full disclosure of facts to readers.

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