06.21.2012 0

What happens if the Supreme Court upholds Obamacare’s individual mandate?

NRD Editor’s Note: This is the last of three articles examining three potential outcomes of the upcoming Supreme Court ruling on Obamacare’s constitutionality. On Tuesday, we examined what happens if the Supreme Court overturns Obamacare in its entirety. Yesterday, we examined what happens if it is overturned only in part. Today, we look to what happens if the individual mandate is upheld.

ObamaCareBy John Vinci — Despite all of the predictions and rumors of its impending demise, it is still a possibility that Obamacare’s individual mandate may be upheld.

As Justice Ginsberg said this week, “Those who know don’t talk.  And those who talk don’t know.”[1]

Not even Paul Clement the lead counsel against Obamacare was willing to venture a guess.  He said, “[T]he way that it was structured doesn’t allow you to draw conclusions the way that you might have been able to draw conclusions if it had been sort of a four hour free-for-all.”[2]

So, if the individual mandate is upheld, where does that leave us as a nation?

First, it means that there is no limit on Congress’ commerce powers.

The Obama Administration argues that health care is a unique market.  They say it is only a matter of time before you will enter that market.[3]  They argue that when the uninsured eventually need care and are unable to afford it, the medical community is required to give it to them for free.  Those “free” services then raise the cost of medical care for the insured.

But as Justice Scalia points out, hospitals are forced to pay for the care of the uninsured only because the government requires them to do so.[4]

So, then, if Congress can create a special market and then can force people to make purchases within that market, what can they not do?

Secondly, and for this reason, expect to see conservatives propose constitutional solutions to correct the constitutional carte blanche that a upheld individual mandate decision would give to the federal government.

Third, the American people will need to look to whomever controls the White House and Congress in 2013 to repeal Obamacare.

And finally, as Obamacare grants an inordinate level of power to federal bureaucracies, we must establish a vanguard against the enactment of regulations that are ill-advised or beyond the scope of their statutory powers.

For two years now Americans for Limited Government, through its ObamacareWatcher.org program, has been vigilantly monitoring and responding to Obamacare regulations.

For instance, on Tuesday, we responded to a regulation that proposes redirecting payments from third party administrators of self-insured health plans.[5]  The law is clear.  Those payments are to be used for insurers with high risk individuals on their plans.  But the Obama Administration seeks to use those payments to pay for contraceptives for women who work for religious organizations that conscientiously object to the Administration’s mandate that they provide contraception services to their employees for free.

This is a power grab cloaked in a fraudulent veil of statutory authority.

Sadly, it’s not the first time the Administration has ignored its statutory limits in its implementation of Obamacare:

  • In its regulation requiring insurers to allow dependents under 26 to remain on their parents’ insurance, the administration defined the term “dependents,” such that you could be married, have kids of your own, be independently wealthy, and live on the other side of the country from your parents in a house you paid for in cash—and your parents’ insurance will still have to cover you![6]
  • In a more publicized example, a glitch in the Obamacare statute authorizes state-run online insurance marketplaces called “Health Insurance Exchanges” to issue health insurance premium tax credits, but does not make the same authorization for federally-run exchanges.[7]  But instead of admitting the flaw in the law and asking Congress to fix it, the Obama Administration ignored the statute and published a regulation to allow federally-run exchanges to issue premium tax credits in spite of the law.[8]

These are but a few examples of the Obama Administration’s pattern of disregard for the law.[9]

So, if the Supreme Court refuses to enforce constitutional limits of Congressional power, we, the American people, must at least hold the federal government to the statutory limits it has placed upon itself.

John Vinci is a staff attorney with Americans for Limited Government and is the editor in chief for the www.obamacarewatcher.org website.

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[1] Kyle Cheney, Politico, “On eve of health ruling, Ruth Bader Ginsburg predicts ‘sharp disagreement’” (June 15, 2012) http://www.politico.com/news/stories/0612/77479.html#ixzz1yLhv12gE.

[2] Kathryn Smith, PoliticoPro, “Clement: SCOTUS ruling tough to predict” (June 19, 2012) https://www.politicopro.com/story/healthcare/?id=12196.

[3] See 4-5 and 109

[4] See Transcript of Oral Argument at 20-21 and, 37-38, Dep’t of Health and Human Servs. v. Florida, U.S. Supreme Court Docket No. 11-398, argued March 27, 2012 available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-398-Tuesday.pdf.

[5] ObamacareWatcher.org, “ALG Comment on Regulation CMS-2012-0031-0001” (June 19, 2012) http://obamacarewatcher.org/reg/cms-2012-0031/cms-2012-0031-0001/comments.

[6] ObamacareWatcher.org, “Implementing Obamacare: A Pattern of Disregard for the Law and the Constitution” (Mar. 7, 2011) http://obamacarewatcher.org/articles/155.

[7] See Press Release, Orin Hatch, Ranking Member of the U.S. Senate Comm. On Fin., Hatch to Obama Administration: Don’t Circumvent Congress to Amend Partisan Health Law (Dec. 1, 2011) http://www.finance.senate.gov/newsroom/ranking/release/?id=6c2ea7e8-2a57-451c-8e02-f066e8ff92f7  and Avik Roy, The Apothecary, “Yet Another Obamacare Foul-Up: Participants in Federally-Run Insurance Exchanges May Be Ineligible for Subsidies” (Sept. 8, 2011) http://www.forbes.com/sites/aroy/2011/09/08/yet-another-obamacare-foul-up-participants-in-federally-run-insurance-exchanges-may-be-ineligible-for-subsidies/

[8] Avik Roy, The Apothecary, “Yet Another Obamacare Foul-Up: Participants in Federally-Run Insurance Exchanges May Be Ineligible for Subsidies” (Sept. 8, 2011) http://www.forbes.com/sites/aroy/2011/09/08/yet-another-obamacare-foul-up-participants-in-federally-run-insurance-exchanges-may-be-ineligible-for-subsidies/

[9] See supra note 5.

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