Free Market Fundamentalist Opinion

Obamacare is Still Unconstitutional

A circuit court strikes down the individual mandate as unconstitutional.

Last week, the Eleventh Circuit Court of Appeals struck down the individual mandate of President Barack Obama’s health reform law as unconstitutional. It’s almost inevitable now that the Supreme Court will be asked to rule on the matter eventually.

Defenders of “Obamacare,” which is how the Patient Protection and Affordable Care Act of 2010 has become known, argue that the Commerce Clause in the Constitution grants the federal government the authority not just to regulate interstate commerce but all commercial activity, including health insurance. Forcing people to purchase insurance, they say, is not just legal; it’s the right thing to do because millions would otherwise fail to insure themselves against medical catastrophe.

The appellate court in Atlanta, Georgia on Friday decided otherwise, opining that the Commerce Clause should not be interpreted “in a way that would grant to Congress a general police power.”

As for the mandate, the Eleventh Circuit considered not just the constitutionality of it “but also its implications for our constitutional structure.” If the federal government can force people to buy insurance, what can’t it do? There are, in fact, very clear restrictions on federal power in the Constitution and “while these structural limitations are often discussed in terms of federalism, their ultimate goal,” the court points out, “is the protection of individual liberty.”

Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle.

With the Environmental Protection Agency enforcing “fuel efficiency standards,” that may just be a matter of time but the court’s point is very clear — Congress never has, and never should, compel economic activity or transactions.

The individual mandate is but the most obvious affront to civil liberties that is embedded in the health-care overhaul however.

Insurance companies are businesses like any other, entitled to charge premiums that reflect actual risk. Obamacare would force them to cover almost every American, no matter how ill they are; no matter how bad their health habits; no matter how high the cost of their exotic treatments.

Premiums, logically, will rise for every consumer. In anticipation of the law’s full implementation, insurers are already raising premiums.

Like insurance companies, health-care providers have a right to turn a profit. Doctors and nurses are not public servants. They are entitled to charge fees that reflect the value received by all parties to the transaction.

Obamacare, by driving down permissible fees, will force physicians into a deadly conflict of interest — lose money by doing everything necessary to meet patients’ needs or make money by satisfying minimum bureaucratic standards.

The health-care reform law moreover does nothing to address a major impediment to a full and free competition in the health insurance market — antitrust legislation that prohibits insurers from consolidating and operating freely beyond the boundaries of their state. People should be able to buy insurance from whatever company they want, wherever it’s settled. That will drive down premiums very quickly.