Turning Back Obamacare

In Greek mythology, the warrior Achilles had no rival. As depicted in Homer's "Iliad," he was universally feared as invincible.

That is, until a lone arrow struck his vulnerable heel. Achilles crashed to the ground and died.

Enter the Orwellian-named "Patient Protection and Affordable Care Act" — more commonly known as Obamacare.

These days, the chattering class is expending a lot of keystrokes to convince Americans that Obamacare is here to stay. Republicans, they say, could never get a repeal through Congress, even if they had majorities in the House and Senate.

To override a presidential veto, the GOP would have to muster votes of two-thirds from each chamber. But from where I sit, Obamacare has more than one Achilles’ heel.

With majorities in both Houses, the Republicans could force the president to revisit his healthcare plan and eliminate and modify the worst provisions.
Still, the best hope for repealing the whole law comes not from the legislative branch, but the judicial one.

In fact, 20 states have joined a Florida lawsuit challenging the constitutionality of the president's healthcare plan. A second state-level lawsuit against Obamacare is also moving forward in Virginia.

The driving force behind the legal challenge: Florida Attorney General Bill McCollum. McCollum, a former congressman, is well-known in the Sunshine State for defending conservative causes. His lawsuit to block Obamacare has brought him national attention.

McCollum claims that there is no constitutional basis for Obamacare’s "individual mandate" that forces the purchase of private healthcare coverage.
Already the Justice Department is responding to such claims, citing the Constitution’s Commerce Clause, which authorizes it to regulate the flow of business across state lines.

Recently, I spoke to McCollum, a man I admire, about his case. He explained to me that the individual mandate actually seeks to regulate non-commerce.

"The Justice Department argues — I think rather weakly — that you, as a person sitting in front of your TV set and doing nothing, are actually affecting healthcare costs in this country," says McCollum.

Think about it: If the federal government has the power to make you buy health insurance, what couldn't it require? Solar panels for your home, perhaps? A plug-in automobile? Unionized lawn-care services, maybe? And if the federal government were free under the Commerce Clause to require you to make a transaction you don't want, even when your state also opposes the mandate, would the federal system of governance envisioned by the Founders still exist?

In my experience, most citizens fear an unrestrained federal government. Wasn’t that the purpose of the Constitution after all, to protect our freedoms?

There’s more good news: McCollum says Obamacare harbors another hidden vulnerability, called severability.

Severability is the boilerplate language you'll find in almost any contract or legislation, stating that if the courts strike down one of its provisions, the others will remain in effect.

It turns out that while members of Congress and their legions of aides were busy crafting the massive 2,400 pages of the final Obamacare legislation, they neglected to include this severability clause.

McCollum tells me that if he's able to convince the courts that even one part of Obamacare is unconstitutional, the lack of a severability clause means the entire Affordable Care Act will be voided.

While McCollum’s case winds through the courts, I like a multipronged approach in thwarting Obamacare: fighting it in public opinion, in Congress, and in the courts.

Republicans should not simply be advocating for “repealing” Obamacare. Instead they should put forth positive alternatives, such as tort reform to reduce insurance costs.

They could also require that providers bill patients first, not insurance companies, adding a layer of accountability. And new incentives could propel medical savings accounts while taking down state barriers, allowing private insurance carriers to compete across state lines.

This way the Republicans are not seen as the party of no — but as a positive force. By 2012, Obama may discover his health legislation is indeed his Achilles’ heel.