On Feb. 22, a District of Columbia federal judge, Gladys Kessler, ruled Obamacare constitutional, parroting the administration's claim that because all Americans are "active" in the healthcare marketplace, Congress can use its commerce power to compel them to buy health insurance. Kessler is the third federal judge to buy the argument, and more likely will.
Unfortunately, it's untrue.
The Obama administration’s lawyers are building the case for mandatory health insurance on a lie, telling judges that all Americans use healthcare. That’s a whopper.
The truth is that “half the population spends little or nothing on healthcare,” according to the reliable Agency for Healthcare Research and Quality, a federal agency.
Other federal data, the National Health Interview Survey, show that for most Americans under age 65, going to the doctor is a rare event. Yet under Obamacare they are being compelled to pay for "comprehensive" coverage that includes such visits.
Ultimately the Supreme Court will decide on the constituitonality of Obamabare, but the outcome should turn on constitutional principles, not a falsehood.
Over the past 70 years, the Supreme Court has stretched commerce power so far that now Congress can regulate any economic activity — even a farmer growing wheat to feed his own livestock. The Obama lawyers are trying to extend commerce power even further, allowing Congress to prohibit economic “inactivity”; that is, not buying insurance. They say not buying insurance is tantamount to choosing to “free-ride” and shift the cost onto others in the marketplace.
The Obama lawyers told federal District Court Judge Roger Vinson that “the near universal participation in that market, the unpredictable risks of incurring enormous medical expenses, the requirement that hospitals provide care regardless of ability to pay, and the prevalence and enormous impact of cost shifting [all] yield an airtight connection” between the Interstate Commerce Clause and mandatory health insurance.
Not air tight, according to Vinson.
In 26-state challenge to Obamacare, Vinson ruled Congress cannot regulate “inactivity” under the commerce clause. If Congress “has the power to compel an otherwise passive individual into a commercial transaction,” there is no practical limit on Congress’s powers.
Federal District Judge Henry Hudson, ruling on the challenge brought separately by the state of Virginia, had reached the same conclusion last December. But the Obama administation’s false claim has prevailed in 3 out of 5 district court contests so far and will likely be repeated in several to come.
It also dominated the House Judiciary Committee hearings last week. On Feb. 16, ranking Democrat John Conyers, D-Mich., erroneously said, “we all participate in the healthcare market.” He added, ”no one can credibly claim they will never get ill or injured.”
True, but the remedy is a high deductible policy to protect against unexpected illness or injury. About 26 percent of privately insured Americans have such plans, but under Obamacare, these don’t count as adequate coverage.
Obamacare jams everyone into a one-size-fits-all benefit package with low copays and deductibles that covers routine doctor’s visits, mental health care, substance abuse treatment, and chronic care.
Forcing healthy people to buy hefty plans turns insurers into private tax collectors to support the needs of a small number of chronically ill people. About 5 percent of the population uses half the nation’s healthcare.
The Obama lawyers also mislead judges by arguing that mandatory insurance is necessary and proper to bar “free riders” from forcing up the cost of insurance.
“In the aggregate, the uninsured shift $43 billion in the cost of their care annually to other market participants,” government lawyers have stated in every one of the five district court contests. It’s a half-truth.
Government programs are to blame for twice that amount of cost-shifting. Medicare and Medicaid pay less than the cost of caring for patients, pressuring hospitals and doctors to charge privately insured patients more to compensate.
Government shortchanging adds $88 billion a year to private insurance costs, according to Milliman, a health consultancy. That’s $1,788 dollars extra on each family premium. Obamacare will worsen this by expanding Medicaid enrollment and cutting Medicare payment rates.
These facts unravel the administration’s legal case for compelling Americans to buy health insurance.