Feature:Opinion

The individual mandate is the key to Obamacare

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Karen Harned
Executive Director, NFIB Small Business Legal Center
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      Karen Harned

      Karen Harned is the executive director of the NFIB Small Business Legal Center, the leading advocacy organization for small business owners in our nation’s courts.

Making sausage. No, this is not a reference to breakfast, but to the process by which the United States Congress cobbles together the laws that impact your life, your bottom line and your individual rights as a citizen of this nation.

About two years ago, this is exactly what legislators and policymakers in Washington were doing; making sausage through the use of backroom deals, securing benefits for their districts, wheeling and dealing, pinching and stuffing — the end result of which was an unprecedented “reform” of our health insurance system, better known as Obamacare. This confused and bloated bill, in spite of its reckless assembly, was deliberately hinged on a single element: the federal requirement that you, and every citizen like you, purchase a health insurance plan.

The individual mandate was a carefully negotiated and surprisingly incisive bit of the sausage-making. The government knew that insurance companies, if required to cover everyone regardless of their state of health or lifestyle, would be forced out of business. Providers needed more healthy people to purchase insurance to mitigate costs and ensure profit. Including the mandate was Congress’s solution to achieving its laudable goals of lowering health care costs and expanding coverage.

The government’s intentions were clear: the law is entirely reliant on the requirement that Americans spend their discretionary dollars on an insurance product, whether they want one or not. Without the mandate, the law would be gutted.

One problem: Never in its history has the government made it a requirement of your citizenship to purchase something or else be financially penalized — and there’s a reason for that. Making such a demand violates the Constitution.

There are many avenues to increasing coverage and reducing costs — most of which do not result in an unprecedented mandate and a violation of the Commerce Clause. In fact, the largest small business group in the country, the National Federation of Independent Business (NFIB), took its voice to Congress many times during the debate over Obamacare, consistently proposing ideas like increasing portability of plans and allowing insurers to sell across state lines. These proposals are constitutional and they work. But small-business voices were not heard amidst the cloak-and-dagger deals and sausage-making that resulted in Obamacare. But rest assured, their voices are being heard now.

In two months, the United States Supreme Court will hear NFIB make its case for why the mandate is unconstitutional. The court will also hear why, based on Congress’s own intentions, the individual mandate’s demise should mean the destruction of the entire law.

Even the government has lost some ground in its defense of Obamacare. In a brief that will be filed today, the government is sure to reiterate its concession that the mandate is “essential” to the law. In fact, it has already identified major elements of the law that cannot exist without this requirement. The crumbling has already begun.

If the court strikes the entire law, Congress needs to go back to the drawing board and have a real conversation about health care, listening to real voices — those of constituents and small-business owners — and leaving special deals and backroom lobbying at the door.

If the individual mandate is allowed to stand, there will be no end to Congress’s power over the people. There will be no line in the sand, no boundaries to what Congress can mandate. The government has never been able to say what the limits to Congress’s power would be if the mandate is upheld, for one simple reason: they would no longer exist.

Karen Harned is the executive director of the NFIB Small Business Legal Center, the National Federation of Independent Business is a plaintiff in NFIB vs. Sebelius.