Rooted in Reason: Nurturing the Seeds of Liberty


Unconstitutional . . . Sort Of by maliab
August 17, 2011, 7:02 pm
Filed under: Health Care | Tags: , , ,

As you have no doubt heard by now, the 11th Circuit Court of Appeals has struck down the individual mandate portion of Obamacare, ruling that the Constitution does not allow Congress to require citizens to purchase health insurance.  That makes sense, as it tallies with that gut feeling you may have had that letting politicians decide that we were required by law to buy something is a dangerous path to travel.  The next thing you know, we’d all have statutorily-mandated commemorative Governor Abercrombie bobblehead dolls on our desks.  (Hey! It’s for the children!)

This is far from the first blow to Obamacare, which is reeling from the continual pummeling it has received since its controversial passage.  First, you had states’ attorneys and governors declaring their intent to fight it, then the court decisions started rolling in.  It’s pretty clear that we’re going to need a Supreme Court decision of some kind to put some of this confusion to rest, but it’s important to note that the victories we have seen thus far are not the death blow to the Obama healthcare plan.  Dr. Merrill Matthews of the Institute for Policy Innovation explains:

Although as a presidential candidate, Barack Obama criticized the mandate; now the Obama Justice Department says the mandate is absolutely necessary to make the law work.  It’s just one of many Obama flip-flops in his long and sordid drive to control virtually every part of the U.S. health care system.

Another of the important flip-flops playing a role in the 11th Circuit’s decision is whether the mandate is a tax.  In the fall of 2009, the president told ABC’s George Stephanopoulos in a televised interview that the mandate absolutely was not a tax.  Now, of course, the Justice Department claims it absolutely is.

But in its very carefully reasoned and well-written majority opinion, the 11th Circuit ruled that the mandate is a penalty and not a tax and that some parts of the law were severable from the mandate.  Let’s take the last claim first.

ObamaCare is 2,700 pages long and sticks the federal government’s nose in virtually every segment of the health care system.  Many of those regulations, restrictions and intrusions have little or nothing to do with the mandate.  For example:

  • The much-hyped “free” benefits added to Medicare and private health insurance last year;
  • The recent, and also much-hyped, requirements that health insurance cover all FDA-approved contraceptives, along with other services, without patient copays;
  • The Independent Payment Advisory Board (IPAB) that will soon morph into Medicare’s rationer-in-chief;
  • The Department of Health and Human Services Secretary Kathleen Sebelius’s heavy-handed approach to private health insurance, including efforts to monitor premium increases and punishing health insurers that don’t toe the administration line.

However, there are also good provisions, such as:

  • Establishing a regulatory pathway for “biosimilar” drugs;
  • And some important steps to reduce the fraud and abuse in Medicare.

The mandate to buy health insurance would have little to no effect on any of these, and many other, provisions.  Even many of the new taxes are not necessarily dependent on the coverage mandate.  They are intended to pay for Medicaid expansion and subsidized coverage for the poor, health care pork given to the states, high risk pools to cover uninsurable people (at least until 2014), health care clinics for the poor and many of the new “free” coverages mentioned earlier.

However, as big and intrusive as these steps are, they pale in comparison to the mandate to buy coverage or be penalized.  That provision allows Washington to micromanage every health insurance policy in the country.  If people are required to have coverage, then Washington must determine what kind of coverage is “qualified.”  And they will be very expensive, comprehensive policies—the only kind most liberals and Democrats think are worth having.

If the Supreme Court were to strike down only the coverage mandate as an overreach of the federal government’s constitutionally limited powers, the state-based health insurance exchanges might still function.  And the federal subsidies to help families with incomes up to 400 percent of the federal poverty level pay for coverage might still flow.  That’s because the government can provide families with a subsidy if they choose to buy health coverage in the exchange without demanding that they do so.

Click here to read the whole article.

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