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What’s next for Obama-care?

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Posted: Thursday, December 16, 2010 2:48 pm | Updated: 4:20 pm, Sat Dec 18, 2010.

Is Obama-care’s “individual mandate” — the requirement that all Americans buy health insurance — an unconstitutional infringement on individual liberty? Federal Judge Henry E. Hudson thinks so. On Monday, he ruled the mandate unconstitutional, saying it “exceeds the constitutional boundaries of congressional power.” The decision catapulted the controversial health reform law back into the spotlight, with Hudson’s decision earning applause from conservatives and arguments from the White House. The debate almost certainly sets up a Supreme Court showdown to resolve the issue.

Why is the federal government mandating the purchase of health insurance? Should it? Joel Mathis and Ben Boychuk, the RedBlueAmerica columnists, debate the issue.

JOEL MATHIS

Let’s be clear: Conservatives didn’t think the individual mandate was unconstitutional in the 1990s — when the conservative Heritage Foundation came up with the idea, then pitched it as an alternative to President Bill Clinton’s health proposals. No tea partiers shouted about “tyranny” just a few years ago, when GOP Gov. Mitt Romney made the requirement a centerpiece of Massachusetts’ health law.

While some conservatives sincerely see the mandate as an intolerable infringement upon American freedom, it’s not unreasonable to think the GOP is cynically moving the goalposts in its never-ending opposition to Democratic policy ideas — even if those ideas were originally Republican.

The irony: The mandate was an effort to leave health insurance in the hands of private industry and avoid a true government takeover of the health care system.

During the 2009 debate, after all, many Republicans agreed reform should include a rule that insurance companies couldn’t deny coverage to customers with pre-existing conditions. But that left open the likelihood people would wait to get sick before buying insurance — saddling companies with the costs of sick patients without enough healthy customers to help pay the way. That would’ve driven the companies into bankruptcy and, in all likelihood, triggered the rise of a government-run “socialized” health insurance system.

So there are good policy reasons for the individual mandate. But as a political matter, many liberals recognize that the mandate is a particularly ugly way to make the sausage of health insurance reform — more likely to trigger protests against the bill rather than make Americans grateful for the welfare state.

There are less-burdensome ways to replace the individual mandate. Insurers could offer financial incentives for early sign-up and penalties for late arrivals, the way parts of Medicare work now. Other, market-friendly ideas abound. But never fear: Republicans would certainly oppose those ideas, too. They always do.

BEN BOYCHUK

Judge Hudson’s decision to void Obama-care’s individual mandate provision wasn’t about whether a think tank came up with an idea 15 years ago only to repudiate it later on. Nor did the federal court’s decision have anything to say about the wisdom of Mitt Romney’s state-based health care reform scheme. (Although it’s worth mentioning that Romney, too, promised his plan would save Massachusetts taxpayers scores of millions of dollars by harnessing market forces. It hasn’t.)

Rather, Hudson’s ruling is entirely about what the federal government can and cannot do.

The federal government argues the Constitution gives Congress the power to regulate interstate commerce. That’s true. The government further argues that because everything Americans do (or don’t do) somehow affects interstate commerce, the government can regulate virtually anything. That is not true — although the courts have over the past 80 years or so tortured their reading of the Constitution in an effort to make it so.

“Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause power to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market,” Hudson wrote in his 42-page decision.

In short, the Commerce Clause does not give Congress a blank check to enact any legislation it sees fit, however well-intended or “progressive.” The Constitution places limits on what government can do. The framers, in their hard-won wisdom, recognized although the United States needed a strong, central government to survive and flourish in a hostile world, the government’s powers must be “few and defined.”

Mandating the individual purchase of health care is simply a far cry from the original understanding of the federal government’s role. If Judge Hudson’s ruling accomplishes anything, it may be to help reawaken Americans to that proper understanding in the face of a government that seems to have forgotten it altogether.

RedBlueAmerica columnists Joel Mathis and Ben Boychuk are distributed by Scripps Howard News Service. Boychuk (bboychuk@heartland.irg) and Mathis (joelmathis@gmail.com) blog regularly at www.somewhatreasonable.com and joelmathis.blogspot.com.

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