OP-ED

Feds’ Power Grab Must Be Stopped

Florida and more than half of the states in the nation have challenged the federal government’s Affordable Care Act because it deprives Americans of their individual liberty and violates the United States Constitution. The U.S. Supreme Court will decide whether to enforce constitutional limitations on federal authority — or, conversely, whether to allow the federal government to dominate states and individuals to the point of dictating day-to-day decisions.

The court should reaffirm the basic constitutional bargain struck among the states that makes our federal government one of limited, enumerated powers.

The act’s chief problem is its individual mandate, which requires virtually everyone to obtain health insurance coverage simply as a condition of living in America. Forced conscription into a commercial market is a startling new exercise of federal power that Congress has never before attempted.

The individual mandate’s stated goal is to lower insurance costs by forcing “healthy individuals” to buy expensive policies that they do not want or need so that insurers can charge less to others. Congress’s central planning on both the supply and demand side of the insurance market exceeds its constitutional authority because the bare power to “regulate” commerce does not include the power to force Americans into commerce. If it did, there would be no end to Congress “fixing” markets with the wallets of ordinary citizens. Congress could require Americans to obtain unwanted loans to bail out failing banks, to purchase a car to reinvigorate struggling carmakers or to buy solar panels to resuscitate failed Solyndra-like investments.

Congress can “regulate” markets when individuals choose to enter them, but it’s incorrect and dangerous to think this power extends to dragooning people into markets in the first place. Article I, Section 8, of the Constitution distinguishes the power to “regulate” from that of creating something that is subject to regulation. As the states’ brief argues, Section 8 grants Congress the power “to coin money” before granting the power “to regulate the value thereof,” and the powers to “raise and support armies” and “provide and maintain a navy” before the power “to make rules for the government and regulation of the land and naval forces.” The framers were precise in Section 8. And the bare power to “regulate” commerce does not extend to the imperious, superior power to force individuals into commercial markets.

Additionally, many Supreme Court cases recognize the regulation of health and welfare is an area left to the states, which have general police powers. For this reason, too, Congress’s paternalistic regulation of individual health care decisions is on shaky constitutional ground.

Nor is the mandate supportable under Congress’s taxing power. The word “tax” is nowhere to be found in the act, where Congress described its authority to enact the mandate. Also, President Barack Obama blasted ABC’s George Stephanopoulos in 2009 for suggesting that the mandate is equivalent to a tax. “To get health insurance is absolutely not a tax increase … I absolutely reject that notion,” the president said.

Health and Human Services Secretary Kathleen Sebelius, a named defendant in this case, testified before the House Ways and Means Committee late last month that the individual mandate is “not per se a tax.”

So while the president and Congress made the unmistakable choice not to enact a new tax and avoided the political heat that comes with doing so, the government’s lawyers persist in pressing tax-based rationales for the mandate. This is a grasp at straws:Even the clients have disowned this argument from their lawyers.

The act’s second primary deficiency stems from its massive Medicaid imposition on the states. Of the 34 million persons expected to gain insurance under the act, 18 million must be added to state Medicaid rolls. Medicaid will cover almost a quarter of the entire U.S. population — close to 80 million persons — and cost states billions more to operate each year.

The Constitution forbids the government from compelling states to operate federal programs against their will. And here, Congress employs the potency of its spending clout and the states’ long-standing participation in Medicaid to force the states’ hand. Though the act’s Medicaid expansion will bust already-ailing state budgets, states have no choice but to capitulate or forfeit every cent of current and new federal Medicaid funding. States must provide Medicaid services to millions more people, or lose billions of dollars annually.

Medicaid’s sheer size robs the states of any real choice in this matter. Medicaid is the single largest federal grant-in-aid program, accounting for more than 40 percent of all federal grants to states — for example, almost 20 percent of Florida’s entire annual budget. Federal Medicaid funds derive from the hard-earned dollars of federal taxpayers in the states. States cannot refuse the return of so massive a pot of federal funds only to see it directed instead to “Obamacare”-friendly states.

The severity of Congress’ all-or-nothing spending condition makes the Medicaid scheme unconstitutional. While Congress may “mildly encourage” states with federal money, such as conditioning the receipt of small federal grants on setting a legal drinking age of 21, it forbids inducements that are “so coercive as to pass the point at which pressure turns into compulsion.”

The act’s Medicaid scheme presents the ultimate case of unlawful compulsion with the biggest federal spending program. Because states stand to lose all their funding unless they operate the new Medicaid program, the court should invalidate the act. The government simply cannot exploit its tremendous spending leverage to compel state action.

This case portends the future of our country’s basic constitutional structure. We cannot allow the federal government unfettered control over the lives of individuals and states.

The author is the Attorney General of the state of Florida. Post first published in Politico.

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28 replies »

  1. I’ll do that right before I complain about ad hominem attacks. You don’t mind if I borrow your MO do you?

  2. “It does force people to buy policies or pay a penalty, do you agree or are you arguing it doesn’t completly force them to?”

    Don’t try to change the subject.

    “expensive policy part your wrong and we already know that”

    We do, ‘eh? You gat a link to the 2014 HIX premium tables that I’ve somehow missed?

    “higher then”, “catostrophic”, “sentenance”

    Even I can understand what you meant.

    “Forcing people that don’t own a car or drive to purchase auto insurance so you can lower rates to those that do own cars is not the concept of insurance.”

    Straw Man.

    “Birth control pills you know your [sic] going to take is not insurance.”

    Where did I argue that? I’m with Kleinke on that point. But, i would say the same for the “ED” drugs.

    Y’know, Vern, being insulted by you is amusing. On a par with Jersey Shore.

    “0 for 2 want to try again?”

    Flatter yourself.

  3. It does force people to buy policies or pay a penalty, do you agree or are you arguing it doesn’t completly force them to?

    As to the expensive policy part your wrong and we already know that. Millions of people had mini med or catostrophic polices, with the exception of some Unions that got waivers those were outlawed already. Many of those people were happy with those polices they were already forced to buy a more expensive policy or have none at all.

    Come 2014 there is a maxmium deductible meaning everyone that has a plan with a deductible higher then 2014, except some younger people can go slightly higher, have to purchase a more expensive policy they don’t want. I have had a $5000 deductible for over 5 years now. I have no desire to spend the money to go to $2000.

    One sentenance two points? Doesn’t matter your wrong on both.

    “buy expensive policies that they do not want or need so that insurers can charge less to others.”

    Let me give you a simple analogy even you should be able to understand. Forcing people that don’t own a car or drive to purchase auto insurance so you can lower rates to those that do own cars is not the concept of insurance.

    Birth control pills you know your going to take is not insurance.

    Maybe we should have people that don’t own homes pay home owners insurance to help lower that cost?

    0 for 2 want to try again?

  4. OK, Nate.

    One, (2, actually)

    “forcing “healthy individuals” to buy expensive policies that they do not want or need so that insurers can charge less to others.”

    [a] We don’t yet know what coverage will cost or how it will stratify, the exchanges have yet to even be set up yet (and, btw, Vern, my record is clear w/respect to my unhappiness with PPACA); [b] while people may well overconfidently decide in advance what they “want,” what they may end up needing is too frequently quite another matter (that mostly ends up in YOUR tax bill, genius). Which why we have the free-rider and bankrupting expense problems which have evolved.

    CODA

    “so that insurers can charge less to others”

    Uh, well, that IS in fact the concept of “insurance.”

    Why have 3rd party intermediation at all? Why do we even need the Nate Ogden paper-shuffling middlemen who just add to the cost? Everyone just save up and pay cash.

  5. Compare Pam’s article, factual sourced, to the point, no swipes at the other party and the lefties on here go nuts attacking it. The usual lefty trope on her is never sourced, always demeaning and they praise it as the pinnacle of journalism.

    Every time they pull this people need to point out their hypocrisy and mock them.

    “The good-quality ones are thought-provoking and respectful of others’ viewpoints. The post in question was neither, and remarkably so,”

    Where is the disrespect Glen, even one example.

    “A target-rich environment of mischaracterizations.”

    Point out even one BobbyG.

  6. Pam’s article was very well written. She just stated the facts. The indiviual mandate may not be effective in actual play. Because it will be less expensive for people to pay a fine (that is also mandated in the health care bill) rather having purchased health care.

    Then they could wait until they need an operation and then sign up for health insurance. The fine goes directly to the government not the health insurance companies. So insurance companies that are trying to balance the escalating cost of health care with healthy insured clients may not work and we will be back to square one.

  7. 1) You pay to have those specialists available.

    2) I think I am grammatically correct, but maybe there should have been a comma after quality medicine. Every OECD country is cheaper than we are. Not all have quality medical care.

    Steve

  8. “The need to keep relevant specialists on staff. ”

    No they don’t, they can contract those services out, i.e. what every small and rural hospital does that doesn’t keep every obscure specialist on staff.

    Are you claiming NHS has better hospital care? How’s Greece doing these days? Ireland is also struggling with their austerity measures. The current ones, the forthcomming measures will be even worse.

    Your aware Mexico is a member since 1994, you really think their hospitals are better then ours?

    Of the 34 want to maybe change your argument to a majority?

    http://www.oecd.org/document/58/0,2340,en_2649_201185_1889402_1_1_1_1,00.html

  9. You miss the call structure hospitals must maintain to care for those patients beyond the ER and the prolonged care they need to have in the hospital. The need to keep relevant specialists on staff.

    The mandate should just be handled as a tax. Every OECD country with quality medicine and care cheaper than ours, that would be all of them, has a mandate. I think that is why the GOP invented it.

    Steve

  10. just in time for summer, I’m sure it won’t be Obama’s fault a hundred thousand life guards don’t have summer jobs.

  11. Speaking of which;

    The DOJ has been issuing a growing wave of such guidelines over the years, reaching an ever larger portion of business activities. In September 2010, the DOJ issued guidelines for “recreational facilities,” including a new rule that all public access swimming pools must provide a lift capable of moving disabled patrons from their wheelchairs into the water.

    Compliance with the rule requires pool owners to have a lift for each “water element” in their facility. So if your local community pool also has a spa, both the spa and the pool must be “accessible.” But if you have two spas, don’t worry, only one lift is required.

    In fact, most people in the swimming pool industry thought that one portable lift would be enough. Pool owners claim they were led to believe that, as long as they had one device that could be wheeled out whenever someone needed help getting into or out of a pool or spa, there would be no need intrusive permanent fixtures.

    But then industry leaders began hearing rumors last year that Obama’s DOJ would require permanently fixed lifts for each pool and spa. They began to write letters to DOJ asking for clarification on the issue.

    On Jan. 31 of this year, DOJ granted the industry’s call for a clarification: But it was not the answer they wanted. All 300,000 public pools in the United States must install a permanent fixed lift. The deadline for compliance is tomorrow, March 15. Call it “Poolmageddon.”

    There is no way all 300,000 pools can install permanent lifts by Thursday. There simply are not enough lifts in existence or enough people who know how to install them, according to industry spokesmen. Plus, each lift costs between $3,000 and $10,000 and installation can add $5,000 to $10,000 to the total.

  12. Can you cut and paste one time where she is disrespectful?

    Lets cut the BS and call it what it is, you hate how accurate her argument is and you can’t refute any of the facts so you attack the writer. Her post is 100 times more civil then most of the left wing drivel posted here that demeans and attacks conservatives. She also backs her arguments up with citations and support which is more then can be said for majority of the liberal posters on her.

    Why don’t you try challenging even a single argument she makes?

    “Congress can “regulate” markets when individuals choose to enter them, but it’s incorrect and dangerous to think this power extends to dragooning people into markets in the first place. Article I, Section 8, of the Constitution distinguishes the power to “regulate” from that of creating something that is subject to regulation.”

    Argue how this is not thought provoking. It managed to shut up all the usual lefities except to attack her.

  13. My comment pertained to the original THCB post, not the Affordable Care Act. It was a comment about the quality of the writing, not the politics.

    Many posts in THCB offer different viewpoints. The good-quality ones are thought-provoking and respectful of others’ viewpoints. The post in question was neither, and remarkably so,

  14. “the REALITY of our healthcare system. I’m all for dropping the individual mandate as soon as health care providers can reject customers for inability to pay just like other businesses.”

    In reality that only applies to hospitals. Less then 40% of the total spending. In more detailed reality it only applies to emergency treatment, now your down to about 10%. If you really want to get real they are already compensated by a number of government programs.

    Why do we have an individual mandate that covers everything if the problem is less then 10% of care? That makes as little sense as passing a huge federal program to prevent grandma from losing the shirt off her back and excluding large and prolonged expenses from it.

  15. Are you talking about her post or ObamaCare? In fact your argument would clearly apply to 100 years of Liberal efforts to fix healthcare. Lots of misguided complaints and no addressing actual issues, outside of the name of the bill of course.

  16. Sorry, my response was written with the assumption that everyone who presents themselves to an ER/ED has an EMERGENCY. Of course, that is not true. Thanks for clarifying, but does not alter the point I was trying to make

  17. It is NOT illegal for a hospital to deny treatment.

    It IS illegal for a hospital to deny a medical screening exam. Treatment is required for anyone, irregardless of ability to pay, to stabilize any emergency medical condition which said exam identifies including admission and, if treatment requires a hospital with greater capabilities, then transfer of that patient, all without asking for any payment or insurance.

    No one may walk in and demand free treatment for nonemergency issues.

  18. It would be incredibly interesting to ask her what she thinks of Griswold v. Connecticut or Loving v. Virginia since she seems pretty strong in her belief that ‘the regulation of health and welfare is an area left to the states” with almost no exceptions.

  19. She does no commenting on common sense or the REALITY of our healthcare system. I’m all for dropping the individual mandate as soon as health care providers can reject customers for inability to pay just like other businesses. It’s against the law for hospitals to deny treatment when one presents themselves to their Emergency Department. When hospitals can demand cash, insurance, or verify credit on a credit card before administering treatment, THEN we can drop the individual mandate. You can’t have it both ways!!

  20. Clearly the individual states are more responsible than the federal government when it comes to establishing what citizens do and how they conduct themselves. Oklahoma state Senator Constance Johnson introduced a bill with the following language:

    The Legislature finds that:

    1. Thousands of children are deprived of birth in this state every year because of the lack of state regulation over vasectomies;

    2. There is substantial evidence that unregulated vasectomies result in fewer unwanted pregnancies and, by extension, fewer births;

    3. It is patently unfair that men can avoid the rewards of unwanted fatherhood by presuming that their judgment over such matters is more valid than the judgment of the Legislature;

    4. Fewer unwanted pregnancies result in fewer children living in poverty and a lower prison population, and this is job killing in a time when social workers, police officers, and prison guards need the employment to feed their families; and

    5. It is the purpose of the Legislature to assert an invasive state interest in the reproductive habits of men in this state and substitute the will of the government over the will of adult men.
    […]
    2. No vasectomy is authorized or shall be performed in violation of this section.

    3. In determining whether a vasectomy is necessary, no regard shall be made to the desire of a man to father children, to his economic situation, to his age, to the number of children he is currently responsible for, or to any danger to his wife or partner in the event a child is conceived. A vasectomy may only be performed to avert the death of the man or avert serious risk of substantial and irreversible physical impairment of a major bodily function of the man. No such condition shall be deemed to exist if it is based on a diagnosis or claim of a mental or emotional condition of the man or that the man will purposefully engage in conduct which he intends to result in his death or in substantial and irreversible physical impairment of a major bodily function.

    Oops! I just realized this post was about the mandate, not contraception.
    Sorry about that.
    Oh, well. The main point is the same. States are a lot smarter than Washington politicians. Right?

  21. This piece is heavy on complaints about feared problems and light on solutions for known problems.

    It is unworthy of THCB’s forum.

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