Software for the finest computer – The Mind


Posted by Tim Bryce on January 31, 2012


Mark the dates of March 26-28, 2012 on your calendars as we are about to witness one of the most titanic legal struggles in this century, the fight over the Patient Protection and Affordable Care Act (ACA), better known as “Obamacare,” which went into effect March 23rd, 2010. Actually, we won’t be able to see much of anything as cameras are not allowed in the Supreme Court proceedings. However, I can assure you it will be extensively covered by the media as this is a major constitutional issue. And you better pay attention as the decisions made here will have long term implications on our country.

In reality, there are three separate cases which will be heard individually, which is somewhat strange as they are all closely related. The stakes for this are high too as it will pit the President and the Democrats, the proponents of the bill, against the Republicans, the bill’s opponents. The outcome will undoubtedly play a role in the outcome of the November elections. Nonetheless, both sides will want to make sure “their people” are present on the bench, both liberal and conservative. Three justices may have to be recused though:

Justice Sonia Sotomayor worked for the president and helped write the legal strategy used for the court challenges. In other words, she is already intimate with how arguments will be refuted by the president’s people.

Justice Elena Kagan is a long-time cheerleader of the bill and served as Solicitor General during the Congressional health care debate.

Justice Clarence Thomas’ wife is an active opponent of the bill but he, himself, has no direct involvement.

Of the three, Sotomayor and Kagan are more intimate with the bill and played an active roll in its passage. Nonetheless, it is doubtful any of the judges will recuse themselves as the stakes are too high.

Representing the president’s side are the departments of Health and Human Services, Treasury, and Labor, along with their Secretaries, collectively “the government.”

Their opponents are 26 states with Florida at the forefront, private individuals Mary Brown and Kaj Ahlburg, and the National Federation of Independent Business (“NFIB”). Both Ahlburg and Brown are fighting for the right to remain uninsured.

The three cases include:

To be argued March 26-27 –
Department of Health and Human Services, et al. vs. the State of Florida, et al. (11-398)

Basically, the government is trying to appeal a district court’s ruling that the individual mandate (to purchase insurance) is unconstitutional and that it cannot be singularly severed from the act.

To be argued on March 28th –
National Federation of Independent Business, et al. vs. Kathleen Sebelius, Secretary of Health and Human Services, et al. (11-393)

Is intended to reverse the Eleventh Circuit’s judgment on the severability issue where they concluded the individual mandate can be severed from the remainder of the act.

The State of Florida, et al. vs. the Department of Health and Human Services, et al. (11-400)

First, questioning Congress’s authority to expand the eligibility for Medicaid of individuals up to 133% above the poverty level; Second, questioning the constitutionality of establishing penalties for large employers that do not offer adequate health insurance coverage to full-time employees, and; Third, whether other provisions of the Act could be severed from the Act’s minimum coverage provision if that provision were found to be unconstitutional.

In a nutshell, the case needs to answer the following questions:

1. Does the Commerce Clause (Article I Section 8 Clause 3 of the Constitution) grant Congress the power to require individuals to maintain a minimum level of health insurance or pay a tax penalty?

2. Did Congress exceed its enumerated powers and violate principles of federalism when it pressured States into accepting conditions that Congress could not impose directly by threatening to withhold all federal funding under Medicaid, the single largest grant-in-aid program?

3. Is the suit brought by respondents to challenge the minimum coverage provision of the Patient Protection and Affordable Care Act barred by the Anti-Injunction Act, 2 U.S.C. 7421(a)?

4. Is the individual mandate severable from the ACA?
(Source: Oyez)

My concern is how Obamacare, if sustained, will affect the sheer nature of capitalism by forcing people to purchase products they do not necessarily want. It is also an expression of more federal control over the states by withholding Medicaid. In other words, who should have more authority, the federal government or the states?

Regardless of the decision, it will be a “Win-Win” decision for the Republicans. If the Supreme Court overturns Obamacare, it will be a major defeat for the president and will mean we have to go back to the drawing board. However, if the Supreme Court sustains Obamacare, it will create a major uproar that will likely drive the Democrats out of office. Either way, the Republicans win.

Fasten your seat belts, it is going to be a bumpy ride.

Keep the Faith!

Note: All trademarks both marked and unmarked belong to their respective companies.

Tim Bryce is a writer and the Managing Director of M. Bryce & Associates (MBA) of Palm Harbor, Florida and has over 30 years of experience in the management consulting field. He can be reached at

For Tim’s columns, see:

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Copyright © 2012 by Tim Bryce. All rights reserved.



  1. Tim Bryce said

    A D.P of Cincinnati, Ohio wrote…

    “Obamacare will also further bankrupt the USA!”

    An A.B. of Oxford, England, UK wrote…

    “Exceptional article, highly astute for a change. The current administration is an OBAMANATION (seriously I do know how to spell) abomination! Clearly this administration has been a dismal failure. Bailing out law firms, SERIOUSLY? Wilmer-Hale? That’s only part of the dismal failure . . . CHANGE, you say? You call CLINTON relics CHANGE? I say BARF!”

    A J.D. of Columbus, Ohio wrote…

    “It will be interesting to follow for sure. As for a win-win for the Republicans–not sure how–but somehow Obama will survive it…and still manage to get the vote in November. I’m sure HOPING that does NOT happen–but I don’t think the Republicans have a candidate to offer that can actually beat the man. I’m not impressed with Romney or Gingrich and Santorum is too far behind the poles and broke. UGH. I was hoping they’d come up with a real leader.”

    A P.S. of Minneapolis, Minnesota wrote…

    “It will all be very interesting no matter how it plays out.”

    An L.H. of Ohio wrote…

    “We cannot afford to lose some of the factors of this bill. There are many; but one of the main points is that children cannot be denied medical insurance due to existing conditions. This bill is very groundbreaking, necessary and has and will save many Americans their lives and their pocketbooks.”

    A B.H of Boulder, Colorado wrote…

    Let me point out just ONE of the many shortcomings of the present MEDICAID system. My youngest daughter (now pregnant with my first grandchild – a girl, and due end of February) works as a medical assistant in an OB/GYN practice. In her previous practice, they saw a LOT of immigrant populations (legal – with green cards…as this is a sore spot for many people if they get benefits and are illegal). Most notably, here in the Denver metro area, Russian and Ethiopian demographics (not Hispanic, as many people might think) are significant. These Russian women would walk into the clinic wearing expensive clothes and jewelry, show their Medicaid benefits cards and receive free or very low cost medical care and prescriptions and then leave in their new Escalade SUV’s.

    Here’s the part that rubbed the office staff – BECAUSE they hold a green card, they were not required to meet the same financial standards that regular US citizens have to meet – in other words, if you are a US citizen, you have to be poor, or spend your assets down to a certain level to become eligible for Medicaid. Green card holders were not being held to the same standards, regardless of income. Most of the flaunters of the system were Russian, but they mentioned a few other minorities that also fell into that category.

    Here’s the real rub: One of the office staff has 4 children and makes $50 too much a year to qualify for reduced child care support. In effect, she is working pretty much full-time to provide child care for those kids, two of whom are in public schools and have to be watched after school until she and her husband can get home. AND, she has to pay for her medical benefits from work, she’s not eligible for Medicaid because she makes too much money. Now, one of the popular things to say is, ‘Why doesn’t she just stop working and take care of the kids?’ If you think about it in simplistic terms, it’s a good question. But, if she quits working, you have one more person NOT paying income tax, medicare premiums, Medicaid premiums, AND… at some point down the line, SHE has to work 40 quarters to be eligible for good old Medicare as her medical insurance in old age…she’s in a Catch-22 situation if there ever was one. Not to mention the fact that as congress contemplates CUTTING doctor payments from Medicare by 27% this year, more and more physicians will stop seeing medicare patients, further exacerbating a situation that is just getting worse all the time. One thing congress FAILED to think about in the new law (flawed as it already is) is, along with mandating that the public have insurance, making sure that doctors had to accept a certain (minimum) percentage of their patient population from medicare/Medicaid. That’s the ONLY way to ensure that the system doesn’t get hyperinflated…and Yes, it’s not any fairer on the doctors than it is on the public.

    I’ve always said, for every complex and difficult to explain problem, there are hundreds (or even thousands) of simple, easy-to-understand solutions that are absolutely and totally wrong. This one is just ONE of many of those problems our country is facing, and congress believes that simple answers are the way out of the problem, but I’ve never seen a ‘simple’ law being written by congress to address a problem…even the ‘Tax Simplification Act’ created more confusion than it solved.”

    A J.S. of Skidway Lake, Michigan wrote…

    “Having spent six months on the phone arguing with insurance company personnel, I can only imagine how much worse it will be when the federal government takes over. If we are forced to accept this health care plan, all legislators should be forced to accept the same. Obama has said that they have chosen to ‘opt out’ of the health care plan they’re forcing on us. I say we opt them all out of office and into the unemployment line.”

    An I.P. of Miami, Florida wrote…

    “Thank you Tim for sharing this information. I am sure this issue will turn into a circus act. Let’s just wait and see.”


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