Judge Roger Vinson’s summary judgment
declaring the Patient Protection and Affordable Care Act
unconstitutional goes beyond providing legal basis for
overturning the requirement to buy healthcare. He demonstrates that
the individual mandate is merely a means to solve a political
problem created by the faulty drafting of Obamacare. In doing so,
he forces the administration and the Supreme Court to overturn his
decision by expanding the power of Congress in capricious ways
neither the Founders intended or voters will be happy
with.
The first part of Vinson’s brief rejects the complaint
made by the 26 states opposing Obamacare that the required
expansion of Medicaid is coercive because it forces hard choices on
states it did not agree to. Vinson (citing another court opinion)
notes, “The difficulty if not the impropriety of making judicial
judgments regarding a state’s financial capabilities renders the
coercion theory highly suspect as a method for resolving disputes
between federal and state governments.” Governments cannot use the
Constitution to solve a problem created by bad policy.
In making this argument Vinson invokes the original Tea
Party. He notes: “It is difficult to imagine that a nation which
began, at least in part, as the result of opposition to a British
mandate giving the East India Company a monopoly and imposing a
nominal tax on all tea sold in America would have set out to create
a government with the power to force people to buy tea in the first
place.”
This is more than a rhetorical flourish. Vinson is setting
the stage for shredding the constitutionality and reasoning behind
the individual mandate: The American Revolution was started in part
by outrage against the tea tax. How greater would that reaction be
if citizens were also forced by any government not only buy tea but
also to purchase a specific kind of tea from specific companies or
risk a penalty.
Under Obamacare, not only is a decision not to buy
healthcare against the law, so too is the voluntary purchase of a
product other than that specified under Obamacare would trigger a
penalty.
Stephanie Cutter, Obama’s health care advisor,
blogged: “People who make an economic decision to
forgo health insurance do not opt out of the healthcare market. As
Congress found, every year millions of people without insurance
obtain healthcare they cannot pay for, shifting tens of billions of
dollars in added cost onto those who have insurance and onto
taxpayers.” The White House goes further and argues that because
other parts of Obamacare might encourage people to postpone getting
insurance until they need to, the individual mandate is “necessary
and proper.” Without it, the healthcare market would
collapse.
Which leads Vinson to his second argument: The
administration’s claim that without the mandate costs and taxes
would rise is no better a reason for judicial intervention than the
claims of states that Obamacare is forcing them into a lousy
financial position. It would be a huge overreach of judicial power
to compel people to buy a specific product to rectify a situation
created by previous policies. Congress enacted laws requiring
hospitals that receive Medicaid dollars to treat all individuals
and ask about cost later.
Congress has many options to address the “free-rider”
problem just as the states have a range of choices in addressing
rising Medicaid costs. (It could impose a healthcare tax on
everyone to pay for insurance for the uninsured or bailout states.
Or it could change laws to eliminate uncompensated
care.)
Hence, Vinson notes: “it should be emphasized
that while the individual mandate was clearly ‘necessary and
essential’ to the Act as drafted, it is not ‘necessary and
essential’ to health care reform in general.” In fact, the mandate
and penalties a prescribed actually reward businesses and
individuals for dropping coverage and enrolling in Medicaid. That
would — in Cutter’s words — shift tens of billions
of dollars in added cost onto those who have insurance and onto
taxpayers.
If Congress can compel purchase of specific products from
only government-approved health plans under the Commerce Clause to
deal with financial challenges in the healthcare market created by
previous policies or compensate with Obamacare’s imperfections,
nothing can stop it from dictating the terms and conditions of
other economic decisions that have a fiscal consequence to a
particular market.
Vinson has done more than overturn Obamacare. He’s raised
the political stakes for Obamacare supporters. Overturning his
ruling would force the Supreme Court to “authorize
Congress to reach and regulate far beyond the currently established
‘outer limits’ of the Commerce Clause and effectively remove all
limits on federal power.” The political response would
lead to Obama’s defeat or congressional action eliminating the
individual mandate. Either way, it is increasingly unlikely
Obamacare will be enacted.
