The Obama administration is in denial. It’s understandable after a major defeat like the one it recently endured over ObamaCare.
Last week, the 11th Circuit Court of Appeals ruled that the individual mandate in the health care law—the signature piece of legislation touted as the zenith of Obama’s presidency—is unconstitutional. The decision is not merely a set-back, it is a lethal blow to the very foundation of the entire law, and a great victory for every American—especially the small-business community, which would be hard hit by tax increases and new regulations promulgated by the health-care law.
The administration has downplayed the ruling and is even using the loss as an opportunity to frighten the public. White House adviser Stephanie Cutter wrote in a blog post that elimination of the mandate would lead to double-digit premium increases in the individual market.
The president defended the mandate during a recent town hall meeting while on his Midwest bus tour, contending that without the mandate, taxpayers would have to pay the costs of emergency care when the uninsured require medical treatment.
Even accepting these claims as true, which we do not, they are simply not based on the legal authority afforded to Congress. Still, the administration argues that “the individual responsibility provision” is constitutional.
Fortunately, the 11th Circuit was unconvinced. It determined that the law’s requirement of all Americans to purchase a good is unprecedented and well beyond the authority granted to Congress in our nation’s founding documents.
In its opinion, the court wrote:
“We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers.”
In other words, if the mandate is upheld, there would be no boundaries to the powers of Congress over all of us. Given Congress’ recent track-record and hasty, 11th hour decisions, this is a scary thought, indeed.
What the Court did not do was find the mandate inseverable from the law. But as the aresident himself has declared, the Patient Protection and Affordable Care Act’s (PPACA’s) life-blood is the individual mandate.
We at the National Federation of Independent Business agree with the administration on one point—the law cannot stand without it. With the Court’s finding that the mandate is illegal, like a building with no support beams, it will eventually crumble under its own weight. As the case moves forward, the NFIB will continue to pursue the invalidation of the entire law before the Supreme Court.
To that end, we are calling our government to action: It is time for the Obama administration to seek immediate review by the U.S. Supreme Court, so that once and for all, Americans have resolution about the law’s constitutionality. PPACA is already imposing huge costs on states and businesses and in these times of economic uncertainty, it is crucial that a final ruling is made as quickly as possible. Small businesses will be in an extended period of limbo until the Supreme Court rules.
The tendency in Washington is to prolong debate; to wait for a more receptive political environment before attacking a problem. Any effort by the Obama administration to slow or delay Supreme Court review would simply be election-year political maneuvering, and our economy can’t wait another year. Our small businesses cannot grow, invest and create jobs while they wait for the Court’s final ruling on the constitutionality of the health care law. They need certainty now and our federal government owes them a fair and expeditious appeal to the Supreme Court.
We are hopeful that the Obama administration will not run out the clock filing appeals and motions at lower level courts.
If the administration is confident in its position, it should seek an immediate and final decision in this case. Denial is a natural response to loss, but it’s time the administration’s moves on and send this case to the Supreme Court without further delay—for the sake of the economy, for small businesses and for the freedom of all Americans.
Karen Harned is the executive director of the National Federation of Independent Business’ Small Business Legal Center.
Karen R. Harned, esq. is executive director of the NFIB's Small Business Legal Center.