One of the more charming things about Big Government is when professional politicians create a problem they expect the citizen to fix it. The so-called “free ride” in health care is one such problem. Congress itself created the “free ride” in 1986 with EMTALA, the Emergency Medical Treatment and Active Labor Act. This law requires hospitals to give emergency care to everyone in America. The “free ride” comes in when uncompensated costs of treating the indigent are shifted to insurance companies, individuals who pay out-of-pocket and taxpayers who make up for the bad debt write-offs hospitals claim. Bottom line: Congress didn’t provide funding for its EMTALA mandate.
So Congress put the “individual mandate” in Obamacare, which requires all Americans to buy health insurance, which fixes the “free ride” problem.
But because Obamacare (the Patient Protection and Affordable Care Act of 2010) didn’t repeal EMTALA, the “free ride” will continue. Deadbeats will still be able to avail themselves of emergency room services and costs will continue to be shifted. And since Obamacare expands Medicaid roles, cost shifting will shift into overdrive. (The real solution to the “free ride” is for public programs to pay the same as private payers.)
The “individual mandate,” however, is a tax, and candidate Obama promised never to raise taxes on the middle classes. Surely Obama wouldn’t renege. At National Review Online, Jonah Goldberg writes:
In September, Obama got into a semantic argument with ABC’s George Stephanopoulos, who noted that requiring all Americans to pay premiums for a government-guaranteed service sounds an awful lot like a tax. “No. That’s not true, George,” Obama said. “For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase. What it’s saying is . . . that we’re not going to have other people carrying your burdens for you.”
Congress could easily end cost shifting by either repealing EMTALA or by paying for the free ER work they shanghaied hospitals into. (Stephanopoulos acquitted himself well in the interview. See the video of it above.)
Some analysts contend that if the feds have the power to require the citizen to buy a product, like the health insurance demanded by the individual mandate, then the feds can require us to buy anything. They could require us to buy a Government Motors (GM) car, for instance. With such unfettered power the feds might re-institute Prohibition or outlaw table salt or regulate our lives in any way they choose. The individual mandate changes the entire relationship between the government and the individual.
So far, about sixteen states have mounted suits against Obamacare, and more may follow. There are several angles to go after its constitutionality. The first is to invoke the Tenth Amendment. Defenders of Obamacare say the Commerce Clause trumps the Tenth’s prohibitions. But in the case of insurance, the feds ceded their power to the states in the McCarran-Ferguson Act of 1945. That act gave the insurance industry its antitrust exemption and made insurance a states’ matter. Since Obamacare didn’t repeal McCarran-Ferguson, defenders would seem to be on shaky grounds. Also, if an individual isn’t using health care, he isn’t affecting health care commerce.
McCarran-Ferguson, EMTALA, and the cost shifting of entitlement programs like Medicaid and Medicare have all worked in tandem to destroy any possibility of a free market in health insurance. These government intrusions into the market are the main cause of the escalating costs of health care that bedevil America. And now the feds have added Obamacare to the mix.
The states are sick to death of the feds’ bankrupting un-funded mandates. If the states prevail in challenging Obamacare’s constitutionality, it would redefine the relationship between the states and the central government, ushering in a new federalism. America also needs a new relationship between the individual and the government, and that would entail an additional contest directly aimed at the individual mandate, but based on something other than the Tenth Amendment prohibitions.
In a 2008 article, I compared the individual mandate to poll taxes, citing the Equal Protection Clause. The reasoning behind finding poll taxes unconstitutional for the poor would hold for everyone else, as well. If poll taxes were levied only on those who could afford to pay it, then the poor could vote for free, while everyone else would have to pay to vote. Outrageous. Likewise, the individual mandate exempts the poor (and they get Medicaid), yet mandates everyone else to pay. Both poll taxes and the individual mandate institutionalize discrimination of citizens exercising fundamental rights. (A treatment of capitation at The Heritage Foundation is germane.)
The individual mandate is the heart of Obamacare’s funding, take it out of the equation and the whole thing falls apart. So if the individual mandate is found unconstitutional, all of Obamacare should be struck down. And that would even include any reasonable items that are severable. Those items can be reintroduced to stand on their own merit.
The individual mandate is not a case of the government requiring the individual to buy something for his own good; it’s a case of the government requiring the individual to buy something to make government programs “work.” Congress has created entitlements that can’t be sustained. Congress has made promises it can’t keep. Congress needs a bailout. So Congress dragoons the individual so that Congress won’t look so bad. Obamacare is not about health care; it’s about fundamentally transforming America.
If the individual mandate really offends one’s ideas about what America is all about, one needn’t worry; the feds always provide an exemption if one jumps through their hoops. And the exemption in Obamacare is H.R.3590, Sec. 5000A, (d) (2):
(A) RELIGIOUS CONSCIENCE EXEMPTION- Such term shall not include any individual for any month if such individual has in effect an exemption under section 1311(d)(4)(H) of the Patient Protection and Affordable Care Act which certifies that such individual is a member of a recognized religious sect or division thereof described in section 1402(g)(1) and an adherent of established tenets or teachings of such sect or division as described in such section [emphasis added].
This is for sects like the Amish. Inasmuch as “there is no Islamically-acceptable form of insurance,” one wonders if Muslims will be exempted from the individual mandate, too. If they are, the costs of treating Muslims will shift to everyone else.
It will be interesting to see what our brave new progressive regime does if throngs of uninsured Americans claim to be Amish, rendering Obamacare unworkable. Obama would surely say that this only proves that the free market doesn’t work.
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