Will Obamacare stand?

I think it will not.

“The Constitutionality of the Affordable Care Act”

The individual mandate and the 85% medical loss ratio imposed by the Affordable Care Act are unconstitutional because the former finds no basis in the power to regulate commerce or the power to tax and the latter finds no basis in the Constitution which, while permitting the taxation of income, does not permitthe limitation of income.

It is not accurate to say if health insurance is commerce, then the health care mandate is a regulation of commerce authorized by Article I, section 8 of the Constitution. Using this logic, one could substitute most anything into this “if-then” syllogism. For example, if true, one could then say “And if selling hybrid cars is commerce, then the mandate to buy a hybrid is a regulation of commerce, authorized by Article I, section 8 of the Constitution.” After all, this mandate would to make hybrids affordable for everyone. We could add to the list flat screen TVs, computers, and whatever else our keepers in Washington wanted to add to the national collective.[1]The people and the states did not surrender such authority to the central government.

Arguments are also based on the lament that the scheme imposed on the private insurance industry would not be “workable” without the individual mandate. For example, it is argued that to make this regulation of the national insurance market workable, Congress found it necessary to include a financial incentive for individuals to maintain minimum insurance coverage i.e., the individual mandate. Let us apply this logic to the Federal Communications Commission (FCC) which regulates the long distance telephone industry under the commerce clause via a policy of competition over which the FCC issues approved tariffs. Using the above logic, if the FCC were to get the idea it wanted to require all long distance companies to provide long distance service to everyone in the country, the FCC could simply issue a rule mandating everyone in the entire country to buy long distance service whether they wanted it or not. After all, without such a mandate it wouldn’t be “workable” as the long distance companies could not afford the cost of bringing service to everyone regardless of remote their locations. I suppose the logic would go something like this: “To make this obviously valid regulation of the national long distance market workable, the FCC found it necessary to include as well a financial incentive for individuals to maintain minimum long distance. That is the so-called individual long distance mandate.”

This type of deductive reasoning allows no room whatsoever for the constitutional principle of liberty. To the contrary, the mandate to buy something does not proscribe a rule by which commerce is governed; rather it proscribes a rule by which commerce must be created. The self-fulfilling logic that the mandatory purchase of health insurance becomes a legitimate exercise of ancillary legislative powers necessary and proper to the exercise of specific powers because the “scheme” will not work absent the mandate iscircular black magic.

While it is correct to note specific constitutional grants of federal legislative authority are accompanied by broad powers to enact laws conducive to the exercise of specific legislative authority, these ancillary legislative powers may not exceed the scope of the specific constitutional grants of legislative authority they purportedly promote. The lesser may not devour the greater. Hence, Gibbons v. Ogden adds nothing to the discussion.

It is a mistake to advance the case of Gonzalesv. Raich in support of the Affordable Care Act without also recognizing the means chosen to attain an otherwise legitimate end under the commerce power cannot be allowed to eviscerate one’s liberty by reaching into a sphere of power the states and people did not surrender to the central government and that such an overreaching means is not “reasonably adapted” for the effective exercise of a specific and limited constitutional power the states and people conferred upon the central government.

An illogical comparison is one that asserts the minimum coverage requirement is no more intrusive than Social Security or Medicare, since the Social Security Act requires individuals to make payments to provide for old age retirement. It is quite apparent that people, who choose not to work, are not required to make payments to provide for old age merely because they exist or are sitting on their couch.

It makes little sense to cite Jacobson v Massachusetts in support of proposition that liberty is not infringed by the individual mandate. Such an argument omits consideration of a fundamental distinction between the nearly plenary police powers reserved unto the states under the 10th amendment vice the limited enumerated powers of the central government. Perhaps a lesson in Federalism is in order. The power of a state government to administer vaccines does not relate to the power of Congress under the Commerce Clause. It’s not at all analogous; rather it’s a case of comparing apples to oranges. Not to belabor the point, but all one needs to do is read Jacobson v Massachusetts itself which clearly makes this distinction. Justice Harlan was a federalist and asserted the primacy of state over federal authority in public health. A power not surrendered by the states is a power not conferred to the central government.

In this regard, you will note that in the below quote from Jacobson v. Massachusetts the Court squarely relies upon the 10th Amendment [3] in ruling the authority for the Massachusetts statute requiring a small pox vaccination is based on “a power which the State did not surrender when becoming a member of the Union under the Constitution.”

"The authority of the State to enact this statute is to be referred to what is commonly called the police power — a power which the State did not surrender when becoming a member of the Union under the Constitution. Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a State to enact quarantine laws and "health laws of every description;" indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other States. According to settled principles the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety." Jacobsonv. Massachusetts, 197 U.S. 1, 25, February 20, 1905.[Emphasis and underscoring supplied]

The health care mandate (i.e., mandate to purchase health insurance) does nothing to regulate the commercial activity of issuing and/or providing health insurance polices. The mandate does not regulate health insurers in the commercial activity of offering or selling insurance contracts, it does not regulate health insurers rates charged under insurance contracts, it does not regulate health insurers advertising heath insurance contracts, it does not regulate the font size in insurance contracts health insurers use when entering the stream of commerce by the sale of health insurance and it does not regulate the conduct of consumers who have entered the stream of commerce by purchasing health insurance.[4]In this regard, Mr. Carvin correctly notes that:

“Under the controlling formulation used by the Supreme Court, the Commerce Clause authorizes the federal government to ― regulate the channels of interstate commerce, as well as to ―regulate and protect the instrumentalities of interstate commerce. United States v. Lopez, 514 U.S.549, 558 (1995). But the individual mandate clearly does not regulate either the ― channels or ―instrumentalities of interstate commerce.”

One other thing: emergency rooms are not used by free riders. While it is true that in America doctors and hospitals are not permitted by law to turn away the uninsured, under the Emergency Medical Treatment and Active Labor Act (EMTALA) hospitals with emergency rooms are merely and only required not to turn away patients suffering from an "emergency medical condition." 42 U.S.C. 1395. Nothing in the law precludes the owners of the emergency rooms from charging or billing users of these services. This is in fact done. Hence these people are not free riders as they are legally liable for the costs of their emergency room care. Also, the individual mandate is not a tax or tax penalty, as the Affordable care Act does not make it a tax.[5]

Finally, the so-called “medical loss ratio” imposed by the Affordable Care Act which mandates the use of 85 cents out of every dollar collected in premiums be devoted exclusively to the provision of health care is unconstitutional. These premiums are the property of the firms that collected them. Obamacare forces potential profits that may violate this requirement be returned to the masses or, if you will, the collective. Health insurance is not a utility. While Congress has the authority to tax income, it does nothave the authority to limit income.

Endnotes:

[1] Mr. Carvin correctly notes the following: “Moreover, authorizing this dramatic expansion of Congress‘s power would do far more to ―create a completely centralized government and ―effectually obliterate the distinction between what is national and what is local than would regulation of noneconomic activity. Lopez, 514 U.S.at 557. Virtually every decision not to engage in economic activity, in the aggregate, will have a substantial effect on interstate commerce.”


[2] Mr.Carvin correctly states the following: “Even if the individual mandate could somehow be deemed ―necessary, it certainly is not―proper. As the Supreme Court made clear in Printz v. United States, 521 U.S. 898(1997), Congress may not engage in regulation, no matter how ―necessary, if the regulation is inconsistent with the Tenth Amendment and the basic premises underlying our federal system.”

[3] The 10th Amendment - Powers of the States and People “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

[4] Therefore, the individual mandate requirement does not “regulate the provision of health insurance.”

[5]See Mr. Kroger’s states:

“Specifically, every covered individual ―shall for each month beginning after 2013 ensure that the individual . . . is covered under minimum essential coverage for such month,‖ and ―[i]f an applicable individual fails to meet th[is] requirement . . . there is hereby imposed a penalty.‖ See Pub.L. No. 111-148, § 1501(b) (emphasis added). Perhaps that is why the President has previously argued that the mandate is ―absolutely not a tax‖ and that ―[n]obody considers [it] a tax increase. [See, e.g., Obama: Requiring Health Insurance is Not a Tax Increase, CNN, Sept. 29, 2009, available at:http://www.cnn.com/2009/POLITICS/09/20/obama.health.care/i...