Health Care Bill Legislative Alert

Thursday, June 17, 2010 (ET)

by Michael Connelly

Mr. Connelly teaches law, including constitutional law, through Education to Go, an online company that provides courses to numerous universities, including the University of Hawaii system. The author of three books and publisher of a website, he resides in Carrollton, Texas, and can be reached by email.

Although the Health Care Bill has already passed I believe it is still necessary for me to update my blog readers on the latest developments about the new law. One of the major concerns expressed by me and other Constitutional lawyers was the fact that this legislation was basically adopted without being read by most members of Congress and it is what is being called “fill in the blanks legislation.” By that I mean that Congress granted broad authority to the President and his appointees to adopt whatever regulations they want to expand the law and enforce it. Several events have already occurred in this area.

First and foremost, the repeated pledges made by Obama to the American people that under the law they would be allowed to keep their current health care plans and the doctors they have chosen have now been negated. According to reports by FOX News and other sources, the regulations being adopted will directly affect the coverage provided by employers to employees. If the employer decides to change insurance providers or if even minor changes are made to the coverage such as a change in the co-pays or prescription drug benefits, the entire policies will be thrown out and employers and employees will be required to go through the Federal Government to get new coverage approved by Washington bureaucrats. This will change both the type of coverage and the names of the doctors that can be seen.

It is not surprising that these regulations will not apply to members of labor unions. Their plans are “grandfathered” in and will not be affected by these regulations. They are the only ones exempt from the new regulations. Unfortunately, millions of other Americans will potentially lose their current coverage. This is clearly a violation of the authority given to Congress or the Executive Branch of Government by the Constitution.

In addition, on June 10, 2010 President Obama issued an Executive Order in conjunction with the new health care legislation. The order is titled: “Establishing the National Prevention, Health Promotion, and Public Health Council.” The entire order can be found on the official White House website at: http://www.whitehouse.gov/the-press-office/executive-order-establishing-...

There is also an Advisory Group established that is required to provide certain reports and recommendations to the Council. The most troubling report called for is contained in Section 6 C of the order that states: “(c) contains a list of national priorities on health promotion and disease prevention to address lifestyle behavior modification (including smoking cessation, proper nutrition, appropriate exercise, mental health, behavioral health, substance-use disorder, and domestic violence screenings) and the prevention measures for the five leading disease killers in the United States;”

What exactly is behavior health modification and where is the Constitutional authority for the Federal government to try and modify or control the behavior of the American people when it comes to things like what we eat and the amount of exercise we must have? What will the government be looking at when it comes to our “mental health” and “behavioral health?” In the former Soviet Union people who opposed the Communist form of government were regularly committed to mental institutions and in Communist China those who exhibited behavior contrary to that mandated by the State were sent to “re-education camps” in order to modify their behavior.

This is an Orwellian concept far outside of what is acceptable in a free nation and frankly just a few years ago I would have laughed at anyone who suggested that this could occur in the United States of America. Yet, from the standpoint of one who supports our Constitution, I find the language in this Executive Order very dangerous. Moreover, at the beginning of the Executive order Obama says this: “By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 4001 of the Patient Protection and Affordable Care Act (Public Law 111-148), it is hereby ordered as follows:”

I beg to disagree Mr. President. While Section 4001 of the Health Care Bill may claim to give you this authority, the Constitution of the United States, that you took an oath to defend and uphold, does not give you any such authority. Unless I am violating an existing Federal or State criminal law, nothing I say or do as an American citizen is subject to your control.