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Help Governor Walker Understand the Truth: Keep up Calls and Emails on the Emergency Rule
Written by Kirsten   
Thursday, 17 November 2011 23:20

This it the third article in a series I began last week about the dangers Wisconsin currently faces in relationship to Obamacare. 


My friends, I have come to the conclusion that Governor Walker is being very poorly advised on the matter of compliance with Obamacare. We need to break through the bureaucratic double-speak that is surrounding him.

As many of you now know, efforts were too late this week to stop the governor from signing an emergency rule that brings Wisconsin into compliance with Obamacare. We had been told the Governor would sign the rule on November 15th or the 16th. We did not know until late Wednesday afternoon that the Governor had, in fact, already signed the emergency rule on November 3rd. The rule was published in the Wisconsin State Journal yesterday, November 16th.

The new emergency rule parallels language in AB 210, a bill that Senator Frank Lasee announced on November 1st that he would kill in the Senate Committee on Insurance and Housing. All of Senator Lasee's reasons for killing AB 210, in fact, now bear upon this emergency rule.

How so?  

Because the outcome of an emergency rule is generally a permanent rule. So, while the emergency rule lasts for only 150 days (with the possibility of a 120 day renewal), a permanent rule will be sought to replace it. This emergency rule is laden with language that comes straight out of the Patient Protection and Affordable Care Act (PPACA), aka Obamacare.

Right now, our governor is receiving---and trusting---wrong information. He appears to believe what the people at the Office of the Commissioner of Insurance (OCI) are telling him, most notably:

  1. We must comply with Obamacare in order to protect against Obamacare.
  2. Limited compliance does not harm Wisconsin or our lawsuit against Obamacare in any way. 

The decisions being made based on these falsehoods are placing Wisconsin and its residents at risk.


We must understand ourselves at least some of the likely impact of this emergency rule. Then, we must educate our governor so that he can quickly extricate Wisconsin from a trap. 

First, compliance and resistance are opposites. You simply cannot comply and resist in any effective way at the same time. To say that compliance = resistance is a redefinition so stark that it might as well be Newspeak...right out of George Orwell's 1984. Yet that is what OCI would have us all believe. Governor Walker has said he stands against Obamacare. OK, let's take him at his word and help him to understand clearly that complying, even in small ways, undermines resistance. 

Second, if even small degrees of compliance undermine resistance, then an emergency rule which brings us into compliance with Obamacare will indeed damage Wisconsin and the 26-state lawsuit to which our state is party--the lawsuit that challenges the federal law's constitutionality.


(Corrections made to this section: November 27th, 2011)

While we are clearly bucking the tide at the Capitol right now, we have a few things going for us as citizens. Whatever the bureaucrats and misinformed elected officials say, the national experts are on our side. The Goldwater, Cato, and Heartland Institutes, as well as the Citizens' Council for Health Freedom, have all told us that ANY compliance with Obamacare, however small, leaves a state in MORE danger of losing its rights and freedoms, not less. Moreover, we have a Florida District Court Judge and the 11th Circuit Appellate Court both telling us that compliance does indeed matter to the courts.

A little context: One of the major issues raised in relationship to Obamacare's constitutionality involves the severability of the individual mandate. The individual mandate is the portion of the law that would force citizens to buy a product: federally mandated insurance. If that portion of the law is deemed severable by the courts, it might be judged unconstitutional while the rest of Obamacare would stand. It's preferable, of course, if the individual mandate is NOT deemed severable. Any ruling of unconstitutionality would then result in a striking of the whole law.

In January in a Florida District Court, Judge Roger Vinson rendered his decision on the 26-state court case. He did a fascinating and wonderful thing.  He struck down the whole of Obamacare as unconstitutional!


In a March stay, Judge Vinson also noted that because eight of the 26 plaintiff states were continuing to move toward implementation of Obamacare, he would not prohibit continued implementation of the federal law.

By forging ahead with implementation of Obamacare, those eight plaintiff states, INCLUDING WISCONSIN, had sent a strong signal to the court that they only viewed the individual mandate as unconstitutional...and therefore severable. The Cato Institute actually wrote an excellent article concerning the implications of Judge Vinson's ruling.

After Judge Vinson's ruling, both the states and the Federal Government appealed the case, at which point it went to the 11th Circuit Appellate Court. The 11th Circuit disagreed with Judge Vinson in that, though it ruled the individual mandate unconstitutional, it was deemed severable from the rest of the law. 

So, when OCI claims that Wisconsin will not damage it's court case with the compliance this new emergency rule brings about, they are ignoring plain facts. Wisconsin's compliance had ALREADY damaged the state's credibility and the overall integrity of the lawsuit by the time Judge Vinson issued his clarification in March. That damage was greater by the time the appellate court ruled. That Wisconsin now CONTINUES to move toward compliance---any compliance at all---puts the case at even greater risk before the Supreme Court.


Wisconsin has already taken federal Obamacare funds it should not have taken. It has already developed a healthcare exchange prototype it should not have developed. And now it's ensuring compliance with Obamacare via emergency rules, which, as noted above, are headed toward permanent rules. Not exactly a model record for the courts to look at when it comes to severability.

On Monday, Wisconsinites found out about the emergency rule---though we didn't yet know it had already been signed.

Remember the other big piece of news that broke on Monday...?  

The U.S. Supreme Court announced that it would hear arguments in the 26-state March of 2012, just a few short months away. If Judge Vinson was cognizant of the fact that eight of the plaintiff states in the case were moving toward Obamacare, do you think that fact will elude our U.S. Supreme Court justices...?  Not a chance, particularly since they've agreed to consider the severability issue. 

In continuing to claim that a little compliance won't hurt us, Wisconsin is now sending the U.S. Supreme court the message it sent Judge Vinson and the 11th Circuit Appellate Court: This state considers the individual mandate severable from the rest of the law; we're not that concerned about striking down the whole ball of wax as unconstitutional. 


Again, we need to help Governor Walker understand this aspect of the situation. Keep calling him. Explain the damage this rule does to our lawsuit.  If he understood the truth, it would provide strong impetus for him to retract the emergency rule...IN A HURRY.

We should firmly insist that the governor refuse to comply with Obamacare in any way, at least until the U.S. Supreme Court has ruled on the matter in question. And we should continue to press him for the return of $49 million in federal grant moneys received in February that almost certainly provide leverage to the Federal Government in relationship to Wisconsin's compliance.

We also need to educate our legislators. Call them, too!  Better yet, make an appointment to see them in district. Insist that you speak with them about this topic. We're going to need their help.

Be polite, but be firm when you speak with Governor Walker or any other elected official. The goal for most will be to assure you that everything is fine. You need to help them grasp that it's not. Be the light in their darkness.

Lay out the facts.

Stick to them.

Don't be moved.

UPDATE, NOVEMBER 27TH, 2011:  After a discussion with a constitutional litigator this evening, I have come back to this article to correct a couple of important facts.  I would always rather ensure that my readers know and understand all of the facts. I had been under the misapprehension that Judge Vinson was an 11th Circuit Appellate Court judge. In fact, he was the district court judge who initially heard the 26-state lawsuit in Florida. 

The corrected section of this post, which I've clearly marked for the ease of all readers, reveals the matter of severability as even more important, not less. The disagreement between Judge Vinson in district court and the subsequent differing view of the 11th Circuit Appellate Court on the severability issue makes it that much more crucial that Wisconsin not prejudice the U.S. Supreme Court concerning the severability of the individual mandate. That the Supreme Court has agreed to hear 90 minutes of testimony on the severability issue in March 2012 should give Wisconsin tremendous pause about traveling even one more step down the road of Obamacare compliance.


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