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NRO’s health-care blog.

If Obamacare Is Unconstitutional, Why Aren’t Medicare & Medicaid?



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A federal judge in Virginia has ruled that the individual mandate in Obamacare is unconstitutional. The “Minimum Essential Coverage Provision” has no basis in the powers delegated to Congress by the Constitution, according to Virginia Attorney General Ken Cuccinelli, and Judge Henry E. Hudson has agreed.

So how can Medicare and Medicaid be constitutional?

Legally, the difference is that the latter two programs are government operations, whereas the individual mandate would have compelled people to buy a private product. Helvering v. Davis (1937) was the famous (or infamous) case wherein the U.S. Supreme Court found that the Social Security Act was constitutional. As Robert A. Levy and William Mellor explain in their excellent book, The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, the Roosevelt administration cleverly argued that collecting the Social Security payroll tax and paying Social Security checks were completely independent operations. The first lies within Congress’s taxing power, and the second lies within its power to spend for the “general welfare.” Because Medicare was an amendment to the Social Security Act, it is also constitutional, according to this reasoning.

People are often shocked to learn that Social Security and Medicare are not “entitlements” at all. Congress could pass a law stopping all Social Security and Medicare payments tomorrow, and no citizen would have a legal claim against the government based on how much payroll tax he or she had paid into the so-called “Trust Fund.” Because Medicaid is financed by general tax revenue, its constitutionality under the general-welfare clause is even more secure, according to current legal reasoning.

For a non-lawyer, the distinction is silly. The stated goals of all three programs — Medicaid, Medicare, and Obamacare — are to lay paving stones on the path to so-called “universal” coverage. The Founding Fathers had no notion of government-run health care, so they would surely find it absurd that 20th and 21st-century jurisprudence allowed that Congress can tax Jack to pay for Jill’s health insurance, and tax Jill to pay for Jack’s health insurance, but cannot tax Jack to pay for Jack’s (or Jill to pay for Jill’s) health insurance.

In a sane world, this matter would have to be resolved in one direction or the other. As an advocate of individual choice, I’d hope the Virginia ruling stands up, but also that its shock-wave crashes up against Medicare and Medicaid. But I wouldn’t be too confident.

After all, we know that President Obama and Secretary Sebelius are actually advocates of government-monopoly, so-called single-payer, health care. I wouldn’t be surprised if they were high-fiving each other right now: “The individual mandate is unconstitutional! Time to move on to Medicare-for-all — Ted Kennedy’s dream!”

Ultimately, Obamacare can be mortally wounded in federal court, but it can only be slain in the court of public opinion.



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