If we want to bring our Federal Government back under control, then we need to make certain that whoever replaces Attorney General Ken Cuccinelli will continue the fight. Would Senator Mark Obenshain be willing take on the Federal Government? Well, I definitely like how he ends this email.
The Supreme Court’s current term is entering the home stretch, and by the looks of things, the Court is saving the health care case for a grand finale. Officially, Monday is the last day on which the Court is scheduled to deliver cases, but an extension is probable, and a ruling on the federal health care bill isn’t likely until later in the week.
That makes this a good time to review what’s at stake — and what’s to come. As we wait for the Court to rule, it’s worth reviewing the case against ObamaCare.
First, here’s what it’s not. Opposition is not predicated on the notion that our existing health care system is what it could or should be. We must find ways to improve health care availability and access.
It is founded upon the belief that the approach pursued by the Obama administration is counterproductive, unaffordable, and constitutionally suspect–and that it would bring about a myriad of major unintended consequences. Which is why I believe that “Repeal and Replace” has to be more than just a slogan; it has to be a commitment. The problems are real, but “ObamaCare” isn’t the solution. Here’s why:
ObamaCare drives up health care costs
Health care costs are already skyrocketing, with annual medical inflation north of 7%. The lack of price transparency is a component, as are limitations on meaningful competition. ObamaCare exacerbates these trends. Those on private insurance plans also subsidize Medicare and Medicaid patients above and beyond what they pay in taxes, as physicians receiving sub-standard provider payments are forced to pass these costs along to paying customers. The overnight doubling of Medicaid enrollees will only make the problem more acute, forcing insurance costs upward and forcing many to drop their coverage.
ObamaCare will have to cover unanticipated enrollees
Health insurance is expensive. If the PPACA went into full effect, it would be more expensive still – and many people who could previously afford health insurance (or received it through their employer) will drop, or be dropped, from coverage, falling into the newly expanded safety net. It’s a dangerous feedback loop: a greater proportion of the population receiving government-provided care drives up costs for the rest of the population, forcing some of them to start relying on government-provided care, further growing that population.
ObamaCare will lower the quality of care
National health care systems rarely have stellar reputations when it comes to quality of care, whether the concern is long waiting lists for certain procedures or limitations on the care provided. Don’t misunderstand me: health care is always “rationed” in some sense, whether it’s an insurer declining to cover a certain procedure or space not being available in a clinical trial. But when the government itself becomes a primary provider, and competition begins to decline, we all have fewer choices, and if the European experience means anything, overall quality of care declines significantly.
ObamaCare will hamstring innovation
Countries with national health care systems vary in their degrees of effectiveness and cost control when it comes to health care delivery, but there’s one disturbing unifying feature: the industry is moribund. The major medical advances aren’t coming out of Europe – and a lot of that has to do with the fact that innovation is expensive and an inherently risky investment, and national health care systems remove many of the incentives that exist when the balance is farther in the direction of private insurance or care. I’m not saying that private R&D would come to an end, or that there isn’t value in the sort of R&D sponsored by medical colleges and universities, but there will be a drop-off in innovation.
ObamaCare places major new burdens on states
At least initially, the federal government will pick up most (but not all) of the additional costs for increased Medicaid enrollment. The operative word here is “initially,” and if-when-that assistance is scaled back to typical levels, states will find themselves facing an almost unrivaled financial crunch. State governments are struggling enough as it is.
ObamaCare violates the Constitution
The now-infamous “mandate” is integral to the PPACA, and it relies on an alarming constitutional theory: that the federal government’s commerce power is so expansive that it can force you to purchase something, that it can require you to take action. In one fell swoop, the PPACA turns the Commerce Clause on its head. We’re no longer arguing about what sort of commercial transactions the federal government may regulate or prohibit, but what sort of transactions it can require.
Some conservatives used to support a federal mandate; frankly, I don’t think they thought it through. (As Justice Frankfurter once wrote, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”) Many of our liberal friends are in that position now. They may like this mandate, but is anyone really comfortable with the idea that the federal government is claiming, at least theoretically, almost complete control over your purchasing decisions? Is that a power the government should have? Is it a power that the Constitution authorizes? I believe not–and I hope the Court will see it the same way.
No one really knows what the Supreme Court will do. Here are the Court’s options:
- They could, after all this, decline to address the merits of the case on a technicality, questioning the case’s “ripeness” or the plaintiff’s standing-thankfully, almost certainly the least likely outcome.
- They could strike down the mandate but leave the rest of the law in place, or they could strike down the mandate and find that it cannot be severed from the rest of the law, striking down the full PPACA.
- They could strike down the law on the grounds that, by tying the program to Medicaid, the states are essentially coerced into participating.
- Or-and I think that this would be a very dangerous development-they could leave the law mostly or fully in place, mandate and all.
Time will tell. I won’t try to read the tea leaves. I’ll only echo Jefferson: “Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction.”
With best regards,
Mark D. Obenshain Virginia State Senator