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Mike Siegel is Joined by Karen Harned with the NFIB
October 20, 2010
Karen Harned is the Executive Director of the NFIB Small Business Legal Center. She is interviewed by Mike Siegel with the Boss Business Hour just hours after Judge Roger Vinson ruled that the suit filed by the NFIB and 20 states in response to the recently enacted healthcare laws was valid and allowed it to keep going.
If the NFIB and states win, the entire healthcare act could fail. The issue boils down to whether the government has the constitutional power to compel citizens to purchase insurance.
Transcript:
Siegel: Folks, welcome back in. Good to have you with us right here at the BOSS Business Hour. What a great organization, advocating for small business. Another great organization advocating for small business is an organization that I have had a good deal of contact with over the years, NFIB, National Federation of Independent Business, in various states. In fact, on this program we have had the executive director of the Nevada NFIB and here in Nevada we have the NFIB as an organization doing great work for small business and all over the country. There national executive director from the national office of the National Federation of Independent Business in the small business legal center is Karen Harned, and we are glad to have her on the program about a very exciting decision by a federal district judge. Ms. Harned, thanks for being with us. How are you.
Harned: I am doing great. Thanks for having me today.
Siegel: Alright. Let's go right to it. Apparently Judge Vincent this week has basically said in answer to the compliant filed by 20 states and the National Federation of Independent Business, your organization, that they are fundamentally correct in wanting this law suit to go forward with respect to the health care bill and the notion of mandatory compliance in the bill to buy health insurance. I think from the judge's words he fundamentally said that "I am not interested." He didn't say it in this way, I am just paraphrasing what I think he means. "I am not interested in having every citizen, just by being alive and a citizen, to have to buy health insurance in this country as mandated by the government." What do you make of that?
Harned: Right. We are thrilled. In fact, the decision just came down a few hours ago, three hours ago, and we are thrilled that he has said that, yes, this mandate that requires everybody to either buy health insurance or pay a fine is unprecedented and raises significant constitutional questions that must move forward. The government all along has said that, you know, this is a frivolous lawsuit, that these claims we were raising were not serious, and the judge completely countered that and said, no, in fact these are very serious claims and I want to hear them in full. So, we are very excited about that.
Siegel: Well, I think it was very important that the judge actually acknowledged a statement from the CBO, the congressional Budget Office, way back in 1994 during the Hillary Clinton proposal for health care, and they simply made an observation, did the CBO, that the notion of requiring everyone to buy health insurance under federal law is something that would be, and again these are my words, a massive expansion of federal power that is unprecedented. I believe the judge actually used the word unprecedented in his own statement in quoting the Congressional Budget Office. So, you have got to believe that he has very deep concerns and is very troubled by the government trying to force people to buy health insurance.
Harned: Right, and he should. That is why we are cautiously optimistic that as we go through the next phase of this litigation we will ultimately prevail. Because it really is hard to see where the line gets drawn over congress' power over all of our lives, if this mandate is upheld. Really what will they not be able to force us to do going forward. In fact, he asked at the last time we were before him, the government he said, you know, what would stop congress from passing a law requiring everybody to buy GM cars, if GM said they needed, you know, more sales to keep them afloat, since the government is the majority owner in that company? They definitely answered that question, but I don't think… they definitely didn't answer it to our satisfaction and I think that is the problem. That there really is no good answer. Because if the individual mandate can be upheld, then really anything can be upheld when it comes to dictating how we spend our money and live our lives.
Siegel: Well, what really is troubling about this, Senator Patrick Leahy from Vermont was asked months ago about what the authority was, and he was taken aback by that. He said, well, hey, we in congress have the authority, nobody challenges our authority. He had no answer basically, except that he had the authority. Senator Feinstein from California said that it is the commerce clause, and want to turn to that because the judge rejected the commerce clause because, look, the fact that people do not buy a service, and we will call health insurance a service or a product as the case may be, across state lines means that it is not under the federal government umbrella anyway. Because as we stand today, you have to buy your health insurance intrastate, within your own state. Therefore, the commerce clause would not apply, because the commerce clause only applies to commerce between the United States and other nations and between and among the states, not within one state. So, you cannot apply the commerce clause to that, and the judge did reject the commerce clause, didn't he?
Harned: Right, and also, I mean, I think even more troubling to him was this idea that for the first time we are calling commerce inactivity. You know, you are doing nothing, you have chosen not to buy health insurance, you are not taking an action, yet that inactivity, the government is arguing, actually is activity and an economic decision that has implication to commerce and as a result the commerce clause applies. It is a very, very contorted argument to make, if you will, by the government and I think the judge has serious concerns by that. I mean, if inactivity is now commerce, then again there really is not limits to what congress can regulate under the commerce clause.
Siegel: What this now means is that he basically decided, as understand it, on a summary judgment motion by the federal government saying, judge, you ought to dismiss this because there are no merits, what he basically said here is, as I understand it, was that there certainly are merits to this case and the case must go forward. Is that correct?
Harned: That is correct. So, now we do get to go to the merits of the case and that will be what we are doing in the court filings in November and beginning of December. Then we will be back down before him, he is in Pensacola, and we will be back down before him on December 16th for oral arguments.
Siegel: And, of course, this will ultimately go before the United States supreme court, but this is a huge first step. Because the way I read his comments was that, if you had to bet on his thinking, it would be that he doesn't want the government to interfere in people's lives to this degree, that the constitution does not warrant that kind of interference in people's lives.
Harned: Again, we feel really good about that. The constitution really, this is stretching it way beyond its limits and way beyond anything the founders ever intended. You know, he definitely again sees.. you know, I think he even said at the end of his opinion that there is a question as to whether or not this is extraconstitutional, because it really is so vast, the power that congress is saying they have here. So, we feel really good about it. We feel really good that when we make our case he will understand and be sympathetic to the arguments we are making.
Siegel: Mike Siegel here at the BOSS Business Hour. Good to have you with us. Karen Harned is the executive director of the National Federation of Independent Business at the small business legal center. Her organization is one of the plaintiffs in the case, basically suing the federal government on constitutional grounds that the mandate to buy health insurance is fundamentally unconstitutional. Given the successful completion of this phase of the case, Ms. Harned, what does this do in terms of small business? If in fact the case winds up saying, as Judge Vincent has said, that this is in effect going beyond constitutional standards, beyond the constitutional mandate given to the federal government, what would that mean for small business in terms of the benefit versus having to apply the mandate to their employees?
Harned: Yeah. That is the main reason we got involved in this. We got involved because small business owners, you know, are very concerned about what this law overall means to them and, more importantly, the constitutionality of it. What will be off limits as far as congress regulating them and controlling their lives individually, and as business owners, if this is allowed to stand. They are already seeing the very, very damaging effects of this law. I just came from Wisconsin last week where I heard from several small business owners that are hearing that their health insurance coverage is being dropped because of the new law, that providers don't want to offer that insurance any more. They are very concerned about premium increases. We are hearing that, wide spread, you know in the 20-30% range premium increases which is just unprecedented. So, for them, you know, a victory here would mean not just, you know, having their liberties restored but also making sure that the cost of doing business doesn't become so great that they go out of business.
Siegel: Now, is there any date set as to when the merits of the case, the trial, will take place?
Harned: So, we will be before the judge on December 16th on the merits of the case as far as oral arguments and then we expect a decision from him early next year, you know, probably the spring of 2011. At that point, it will be appealed and we will be in the 11th circuit court of appeals, which is in Atlanta, and then that will probably take about a year. So, we are expecting to have a decision from the 11th circuit and ask the supreme court to hear the case some time in 2012.
Siegel: Ms. Harned, we will certainly keep in touch to get updates on this as it goes along. Great news. I appreciate your time and thank you so much for being with us.
Harned: That you for having me.
Siegel: That is Karen Harned. She is the National Federation of Independent Business small business legal center. Mike Siegel with you at the BOSS Business Hour. We do it all for the small business advocate. Stay with us.
If the NFIB and states win, the entire healthcare act could fail. The issue boils down to whether the government has the constitutional power to compel citizens to purchase insurance.
Transcript:
Siegel: Folks, welcome back in. Good to have you with us right here at the BOSS Business Hour. What a great organization, advocating for small business. Another great organization advocating for small business is an organization that I have had a good deal of contact with over the years, NFIB, National Federation of Independent Business, in various states. In fact, on this program we have had the executive director of the Nevada NFIB and here in Nevada we have the NFIB as an organization doing great work for small business and all over the country. There national executive director from the national office of the National Federation of Independent Business in the small business legal center is Karen Harned, and we are glad to have her on the program about a very exciting decision by a federal district judge. Ms. Harned, thanks for being with us. How are you.
Harned: I am doing great. Thanks for having me today.
Siegel: Alright. Let's go right to it. Apparently Judge Vincent this week has basically said in answer to the compliant filed by 20 states and the National Federation of Independent Business, your organization, that they are fundamentally correct in wanting this law suit to go forward with respect to the health care bill and the notion of mandatory compliance in the bill to buy health insurance. I think from the judge's words he fundamentally said that "I am not interested." He didn't say it in this way, I am just paraphrasing what I think he means. "I am not interested in having every citizen, just by being alive and a citizen, to have to buy health insurance in this country as mandated by the government." What do you make of that?
Harned: Right. We are thrilled. In fact, the decision just came down a few hours ago, three hours ago, and we are thrilled that he has said that, yes, this mandate that requires everybody to either buy health insurance or pay a fine is unprecedented and raises significant constitutional questions that must move forward. The government all along has said that, you know, this is a frivolous lawsuit, that these claims we were raising were not serious, and the judge completely countered that and said, no, in fact these are very serious claims and I want to hear them in full. So, we are very excited about that.
Siegel: Well, I think it was very important that the judge actually acknowledged a statement from the CBO, the congressional Budget Office, way back in 1994 during the Hillary Clinton proposal for health care, and they simply made an observation, did the CBO, that the notion of requiring everyone to buy health insurance under federal law is something that would be, and again these are my words, a massive expansion of federal power that is unprecedented. I believe the judge actually used the word unprecedented in his own statement in quoting the Congressional Budget Office. So, you have got to believe that he has very deep concerns and is very troubled by the government trying to force people to buy health insurance.
Harned: Right, and he should. That is why we are cautiously optimistic that as we go through the next phase of this litigation we will ultimately prevail. Because it really is hard to see where the line gets drawn over congress' power over all of our lives, if this mandate is upheld. Really what will they not be able to force us to do going forward. In fact, he asked at the last time we were before him, the government he said, you know, what would stop congress from passing a law requiring everybody to buy GM cars, if GM said they needed, you know, more sales to keep them afloat, since the government is the majority owner in that company? They definitely answered that question, but I don't think… they definitely didn't answer it to our satisfaction and I think that is the problem. That there really is no good answer. Because if the individual mandate can be upheld, then really anything can be upheld when it comes to dictating how we spend our money and live our lives.
Siegel: Well, what really is troubling about this, Senator Patrick Leahy from Vermont was asked months ago about what the authority was, and he was taken aback by that. He said, well, hey, we in congress have the authority, nobody challenges our authority. He had no answer basically, except that he had the authority. Senator Feinstein from California said that it is the commerce clause, and want to turn to that because the judge rejected the commerce clause because, look, the fact that people do not buy a service, and we will call health insurance a service or a product as the case may be, across state lines means that it is not under the federal government umbrella anyway. Because as we stand today, you have to buy your health insurance intrastate, within your own state. Therefore, the commerce clause would not apply, because the commerce clause only applies to commerce between the United States and other nations and between and among the states, not within one state. So, you cannot apply the commerce clause to that, and the judge did reject the commerce clause, didn't he?
Harned: Right, and also, I mean, I think even more troubling to him was this idea that for the first time we are calling commerce inactivity. You know, you are doing nothing, you have chosen not to buy health insurance, you are not taking an action, yet that inactivity, the government is arguing, actually is activity and an economic decision that has implication to commerce and as a result the commerce clause applies. It is a very, very contorted argument to make, if you will, by the government and I think the judge has serious concerns by that. I mean, if inactivity is now commerce, then again there really is not limits to what congress can regulate under the commerce clause.
Siegel: What this now means is that he basically decided, as understand it, on a summary judgment motion by the federal government saying, judge, you ought to dismiss this because there are no merits, what he basically said here is, as I understand it, was that there certainly are merits to this case and the case must go forward. Is that correct?
Harned: That is correct. So, now we do get to go to the merits of the case and that will be what we are doing in the court filings in November and beginning of December. Then we will be back down before him, he is in Pensacola, and we will be back down before him on December 16th for oral arguments.
Siegel: And, of course, this will ultimately go before the United States supreme court, but this is a huge first step. Because the way I read his comments was that, if you had to bet on his thinking, it would be that he doesn't want the government to interfere in people's lives to this degree, that the constitution does not warrant that kind of interference in people's lives.
Harned: Again, we feel really good about that. The constitution really, this is stretching it way beyond its limits and way beyond anything the founders ever intended. You know, he definitely again sees.. you know, I think he even said at the end of his opinion that there is a question as to whether or not this is extraconstitutional, because it really is so vast, the power that congress is saying they have here. So, we feel really good about it. We feel really good that when we make our case he will understand and be sympathetic to the arguments we are making.
Siegel: Mike Siegel here at the BOSS Business Hour. Good to have you with us. Karen Harned is the executive director of the National Federation of Independent Business at the small business legal center. Her organization is one of the plaintiffs in the case, basically suing the federal government on constitutional grounds that the mandate to buy health insurance is fundamentally unconstitutional. Given the successful completion of this phase of the case, Ms. Harned, what does this do in terms of small business? If in fact the case winds up saying, as Judge Vincent has said, that this is in effect going beyond constitutional standards, beyond the constitutional mandate given to the federal government, what would that mean for small business in terms of the benefit versus having to apply the mandate to their employees?
Harned: Yeah. That is the main reason we got involved in this. We got involved because small business owners, you know, are very concerned about what this law overall means to them and, more importantly, the constitutionality of it. What will be off limits as far as congress regulating them and controlling their lives individually, and as business owners, if this is allowed to stand. They are already seeing the very, very damaging effects of this law. I just came from Wisconsin last week where I heard from several small business owners that are hearing that their health insurance coverage is being dropped because of the new law, that providers don't want to offer that insurance any more. They are very concerned about premium increases. We are hearing that, wide spread, you know in the 20-30% range premium increases which is just unprecedented. So, for them, you know, a victory here would mean not just, you know, having their liberties restored but also making sure that the cost of doing business doesn't become so great that they go out of business.
Siegel: Now, is there any date set as to when the merits of the case, the trial, will take place?
Harned: So, we will be before the judge on December 16th on the merits of the case as far as oral arguments and then we expect a decision from him early next year, you know, probably the spring of 2011. At that point, it will be appealed and we will be in the 11th circuit court of appeals, which is in Atlanta, and then that will probably take about a year. So, we are expecting to have a decision from the 11th circuit and ask the supreme court to hear the case some time in 2012.
Siegel: Ms. Harned, we will certainly keep in touch to get updates on this as it goes along. Great news. I appreciate your time and thank you so much for being with us.
Harned: That you for having me.
Siegel: That is Karen Harned. She is the National Federation of Independent Business small business legal center. Mike Siegel with you at the BOSS Business Hour. We do it all for the small business advocate. Stay with us.
