As legal challenges over the individual mandate in Obamacare work their way through the court system, it occurred to me that there might be another way to legally challenge a part of the law — the requirement that people be allowed to stay on their parents’ insurance until they turn 26 years old. (I don’t call them children, as the media does, because, quite frankly, they are not and haven’t been for nearly a decade.) How, you might ask, could this be challenged in court? It’s simple, really, which may be why no one has asked the following question: What about Medicare?
Medicare is the federal health insurance program for the elderly and disabled. The government’s website, medicare.gov, clearly spells out what the federal mandate for Medicare, created by an act of Congress, is. It states that Medicare is:
…the nation’s largest health insurance program, which covers nearly 40 million Americans. Medicare is a Health Insurance Program for people age 65 or older, some disabled people under age 65, and people of all ages with End-Stage Renal Disease (permanent kidney failure treated with dialysis or a transplant).
Unless an American citizen meets at least one of those criteria, they cannot, by law, enroll in Medicare.
The new law requires insurance plans to cover the children of their enrollees until those children turn 26. People are having children later in life; my best friend was born when his father was 72 and his mother was 42, for example. In theory, were the new law in effect at any point before his 26th birthday, and his father was enrolled in Medicare, he would have been eligible for Medicare too. The same goes for anyone who was born when one of their parents was 39 or older.
But there’s a problem with able-bodied individuals enrolling in Medicare — it is explicitly outside Medicare’s legal mandate. As I said before, you cannot enroll in Medicare unless you meet at least one of the enrollment criteria. Your parents being enrolled is not one of them.
Congress and the Obama administration probably didn’t think about this at the time the law was written because it’s not something that occurs to people. Liberals have, for years, suggested expanding Medicare to allow people as young as 55 to buy into the system, but they’ve been unable to pass any laws allowing it, so the criteria remained unchanged.
It takes an act of Congress to make changes to Medicare; the new law made no such changes. Regulators, those in the Department of Health and Human Services (HHS), who run the program, have a lot of authority, but they have no authority to change the eligibility requirements for the program. Since this is one aspect of Obamacare that is in effect now, there are people out there who are under 26 and have parents enrolled in Medicare. There is your test case.
There is no time in the lame-duck session to correct this mistake, and there is no way a Republican House of Representatives would do it next year, which leaves this door wide open to a legal challenge that is, in my opinion, every bit as dangerous to the law as the current legal challenges.
While liberal judges can pervert the Commerce Clause of the Constitution to say the government has the authority to force Americans to buy health insurance, and some have, they cannot simply decree that Congress changed a law it clearly did not.
People much smarter than I am could find that test case, take it to the courts and possibly kill this law, or at least aid in its gutting.
I could be wrong on this; health policy experts and lawyers I’ve spoken to don’t know but are looking into it. Either way, it’s an interesting case study of whether or not Congress and the president can mandate something for everyone except a small group of individuals who can’t get on their parents’ insurance and will then be subjected to another aspect of Obamacare — the fine for not having health insurance.
Food for thought.
Derek Hunter is a Washington based writer and consultant. He can be stalked on Twitter @derekahunter