OPINION:
It’s Obamacare week at the Supreme Court. The justices on Monday spent the first two of the six hours planned for oral argument discussing the constitutionality of the health care takeover. It’s been a long road since then-Speaker Nancy Pelosi’s flippant dismissal of such concerns with the response, “Are you serious?” Now the high court is giving more time to this question than it has to any others in 47 years.
Obamacare is unique in that it requires Americans to buy something from a private party, namely health care, or pay a penalty. This individual mandate is essential for the entire scheme to work. Without it, healthy people simply would opt out of the system because the new law also forbids insurance companies from charging different prices based on health status. This creates an adverse-selection death spiral in which healthy people exit the market, leaving only expensive-to-insure sick people in the insurance pool.
The nine justices plan to spread out four key issues over three days. Monday’s discussion centered on whether the suit is barred under the Anti-Injunction Act, which would mean the court should only take up the question in 2014 when the individual-mandate penalties are enforced against someone. Second, and this is likely the heart of the case, is whether the individual mandate is a constitutional exercise of Congress’ authority under the commerce clause. Third is whether the individual mandate is severable from the rest of the legislation. The last is a more obscure issue requirement that states reorganize their Medicaid programs or forfeit federal funding.
Despite transferring control of almost a fifth of the U.S. economy to the government, Obamacare fails in its goal to provide insurance for all Americans. A recent Congressional Budget Office study predicts that at least 10 million Americans will still be left uninsured after the law is fully implemented. Far worse is the damage it does to the constitutional framework the Founders created of a federal government of limited and enumerated powers. When asked each time in the lower courts, the government’s lawyers have failed to come up with any limiting principle on the federal Commerce Clause. Should the administration succeed, the government’s power truly will be unlimited.
Increasingly, the government is relying on the “necessary and proper” clause in its arguments. True, the mandate is necessary for the regulatory structure to function. But it gives sweeping, unrestrained powers to the federal government, contrary to the expressed purpose of the Constitution to have a federal government of limited and enumerated powers. That makes it improper.
This Obamacare case couldn’t be more critical to the future of this nation. Upholding the individual mandate leaves government with untrammeled authority, rendering the Constitution an empty document. The high court needs to do the right thing and strike down this unconstitutional federal overreach.
Nita Ghei is a contributing Opinion writer for The Washington Times.
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