Obamacare May Be Constitutional, It’s Still Wrong

The Supreme Court is the United States’ final arbiter on the constitutionality of laws, not on morality.

President Barack Obama speaks on the phone in the Oval Office of the White House, December 12, 2009
President Barack Obama speaks on the phone in the Oval Office of the White House, December 12, 2009 (White House/Pete Souza)

Now that the Supreme Court has ruled five to four in favor of the key tenet of President Barack Obama’s health-care reform law, the insurance mandate, proponents of it would like to put the matter to rest. The court has spoken, the mandate is constitutionally valid, if as a tax, not a commercial requirement.

The Supreme Court is the United States’ final arbiter on the constitutionality of laws, not on morality however. Even if Congress has the power to require every American to buy health insurance at the risk of a financial penalty, that is not to say it should exercise that power. On the contrary.

Governments should not compel their citizens to any sort of commercial activity, even if it may reasonably be said that it is in their own interest to do so. Certainly, it shouldn’t penalize failure to comply with such a paternalistic decree.

Similarly and necessarily, a government should not require health-care providers to treat people who do not have insurance or other means to pay for it. This is as much an invalidation of the rights of doctors and nurses as it is of the basis principles of liability and individual responsibility that underpin a free market.

There can only be a free market in health care if people’s choices have consequences. If they do not have insurance or fortune to pay for care, they will not receive it. If they do, that creates a classic moral hazard. Only a fool would buy insurance for without it, he would receive the care he requires anyway. Thus the responsible, sensible citizen is punished while the “free riders” have a field day.

The Supreme Court’s decision does not challenge this argument. The administration argued that the aforementioned moral hazard justifies imposing an individual mandate. The justices disagreed but they let the mandate stand because failure to comply with it will result in a penalty, i.e., a tax and that government can impose.

Only five out of the nine justices could swallow this logic but they were in the majority so the Patient Protection and Affordable Care Act stands.

All the same, opponents of the law will and must continue to fight it. Obamacare may be legally permissible by the Supreme Court’s interpretation but it remains repugnant to anyone who believes that the individual, not society, is supreme; that individuals should be in charge of their own health care; that health-care providers and insurance companies should be free to choose with whom they do business.

A better way to reform health care would be to remove the impediments to free enterprise by deregulating the health care, pharmaceutical and insurance industries.

It should not be the state’s prerogative to decide who can practice medicine; drug companies should not have to beg the government’s permission before putting a medicine on the market; insurers should be able to operate across state lines and sell whatever insurance plans they want.

None of this is currently the case while roughly half of the health-care market is dominated by government entitlement programs Medicaid and Medicare which finance health care for the poor and seniors respectively. Little wonder that premiums are high and rising, leaving millions of Americans unable to buy insurance. There is no free and fair competition.