The Corner

Why Obamacare Must Go

This morning, I attended Day Two of the Supreme Court hearings on Obamacare. I left the room more convinced than ever that these hearings represent a watershed moment for our republic. The nine justices have essentially been asked to decide whether there are any real limits on the federal government’s power to intervene in the lives of American citizens.

Article 1, Section 8 of the Constitution authorizes U.S. lawmakers to regulate certain “activities” related to interstate commerce. For example, if Americans are engaged in the “production, distribution, or consumption of commodities,” Congress is allowed to control how they produce, distribute, or consume those commodities.

However, the Supreme Court has never ruled that Congress can use the Commerce Clause to require individuals to engage in an activity they have chosen to avoid. Yet that is precisely what Obamacare does: It forces Americans without health insurance to purchase coverage. Such a requirement is unprecedented and unconstitutional. It is a dangerous expansion of federal power that has worrying implications for myriad other industries. After all, if Congress can make us buy health insurance in order to promote the common good, what will stop it from making us purchase other products or services under the same logic?

When a person chooses to go without insurance, his or her decision affects national health-care markets, albeit in a very small way. Nobody disputes that. But it does not follow that Congress may therefore compel the purchase of insurance. By the Obama administration’s reasoning, it would be constitutionally permissible to make Americans purchase nearly any product (broccoli, gym membership) that improved their health and thereby contributed to lower health-care costs.

Which brings us to the “inevitability” argument: Obamacare defenders insist that, because everyone will eventuallyhave to utilize some type of medical care, the insurance mandate is not forcing people to engage in an activity they could otherwise avoid, but rather regulating an activity they will inevitably have to undertake. This argument incorrectly assumes that the only way to obtain health care is through the use of health insurance. It also implies that Washington could constitutionally regulate our dietary habits, because (1) all Americans must inevitably consume food and (2) the nature of our consumption affects national food markets.

#more#As NR editorialized back in December 2010 (after the individual mandate was struck down by a federal district-court judge in Virginia): “The mandate highlights the coercive and obnoxious character of Obamacare as a whole. The whole scheme works, to the extent it works, only if people are forced to buy a product they would not buy on a free market.”

Indeed, think for a moment about what Obamacare has done: The federal government has come up with its own (ever-evolving) definition of “health insurance,” which now includes free access to sterilization, contraception, and certain abortifacients such as the morning-after pill. It is demanding that employers provide this Washington-approved insurance or else face a penalty. It is also demanding that young and/or healthy Americans pay for benefits that they don’t want and don’t need (and potentially cannot afford). In other words, it has decided that the purchase of an expensive, government-approved product is now a condition of U.S. citizenship.

The ostensible goal of this power grab is to increase the number of Americans with health insurance while reducing costs. We already know that Obamacare has failed on the latter count: According to a survey by the Kaiser Family Foundation and the Health Research & Educational Trust, premiums for family coverage jumped by 9 percent last year, after growing by only 3 percent in 2010.

As for expanding coverage, the method used by Obamacare is fundamentally flawed. The law does not fix Medicaid, but it does flood the already-broken program with millions of new beneficiaries. Never mind that Medicaid has failed to guarantee dependable access to health care: Obamacare will force states to spend, at a minimum, an extra $118 billion on the program through 2023, according to a joint congressional report. Meanwhile, the law will let a panel of unelected bureaucrats (the Independent Payment Advisory Board) slash Medicare payment rates, which will debase the quality of Medicare coverage and make it more like Medicaid insurance. Physician practices will treat fewer Medicare patients, and some may drop out of the program altogether. (In my home state of Texas, one-third of physician practices are already either limiting the number of new Medicare patients they treat or not accepting any new Medicare patients at all.)

The authors of Obamacare apparently forgot that access to insurance does not equal access to health care. They also forgot that we cannot solve our health-care problems at the expense of our health-care providers. Rather than adopt free-market reforms that would curb cost inflation and would enhance access to coverage while safeguarding the doctor-patient relationship, Democrats combined onerous and misguided regulations with an unconstitutional insurance mandate, a new Medicare board that will hinder patient access, and a Medicaid expansion that will cripple state budgets and invariably disappoint program recipients.

If Obamacare is allowed to stand — and Congress is allowed to make the purchase of government-endorsed health insurance compulsory — there will be no meaningful limit on Washington’s reach into the lives of the American people. That is certainly notwhat the Founders intended.

Senator John Cornyn (R., Texas) is a member of the Senate Finance and Judiciary committees.

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