Stark View of Obamacare — updated

Our Lunch and Learn yesterday reminded us about the problems with this bill. So it’s hard to disagree with a Washington Times oped writer (and physician) when he says:

“The die is cast: Obamacare will not survive. This is not a prediction of how the Supreme Court will rule on President Obama’s health care takeover, mind you. It’s the harsh reality that if Obamacare does not die a judicial or political death – or better yet, both – it will die an economic death, and if it does, it will take America down with it.”

Previous post: Overview of healthcare law

The March 28 Lunch and Learn gave us a chilling look at Obamacare — and a rather unnerving view of what the Supreme Court might do.

The speakers were attorney Tom Farr of Ogletree Deakins, who has extensive appellate litigation experience, and Dr. Steven Kagan, a surgeon with Carolina Vascular.

Farr provided a quick overview of the main legal issues. “This is one of the biggest cases in the history of the United States,” he noted.

One issue is the Anti-Injunction Act, which bars legal action against a tax until it has been imposed. However, he said,  the court is not going to use that act to sidestep this issue.

The key provision of Obamacare is the individual mandate, which compels everyone to buy insurance or pay a penalty. But, Farr said, the justices in their questioning likened that forcing everyone to buy a Chevy Volt, or eat broccoli, or buy cellphones so they could respond in an emergency.

Another issue is whether the rest of the law falls if the mandate is struck down. But the Senate took out a clause stating that if any part of the law is declared unconstitutional, the statute still stands. Most observers also think that without the funding supplied by the mandate, the rest of the law would be a fiscal disaster.  In light of all that, Farr said, “I don’t see how the court can sever [the mandate] from rest of the statute.”

So, how will the court rule? Farr estimated that four of the justices would find ways to justify any social program backed by a Democratic president and Congress. Four other justices, however, have been advocates of judicial restraint, a quality usually admired by conservatives. Those four, however, might apply judicial restraint in this case, with consequences conservatives might rue.

Don’t read too much into the pointed questions some justices had for the government’s lawyers, he said. In oral arguments, the justices are “like a cat playing with a dead mouse, and the lawyer is the mouse.” But the justices’ approach in the arguments may not indicate the final ruling.

Dr. Kagan focused on two problems with the law: the bureaucracy and “the penalties and taxes that are headed all our way.”

He noted that the law creates at least nine new federal offices. He focused on Medicare Payment Advisory Commission (MedPAC). As I understand it, that board gets the power to set Medicare rates unless Congress overturns its recommendations, and the law is written to make it hard for Congress to act. But the only way for rising medical costs to be cut under Obamacare is to cut payments to doctors and hospitals. The real result: doctors and hospitals will stop taking Medicare patients.

Then there are the taxes and penalties. This includes taxes on really good insurance plans, on withdrawals from health savings accounts, on employers, on cosmetic procedures, on medical equipment, on medical providers themselves, among others.

Yet all this will inevitably affect how doctors treat patients. “There is no amount of government spending that can replace a healthy doctor-patient relationship,” Kagan said.