Obamacare is a disaster, but the Supreme Court ruling is not

David Cohen Former Deputy Assistant Sec. of the Interior
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Obamacare is one of the worst pieces of legislation ever enacted. Its 2,700 unreadable pages are bursting with unintended consequences that will ultimately do great harm to the very people it is supposedly intended to help — and the rest of us as well. But the Supreme Court’s decision to uphold the law is largely a victory for conservative principles.

Chief Justice Roberts’ majority opinion reinvigorates the Commerce Clause as a check on Congress’s power to usurp our liberty. Our Constitution was never intended to endow Congress with unlimited power to control our lives. Whenever Congress wants to pass a law, it has to point to specific authority in the Constitution that gives Congress the authority to pass that law. That’s the theory, at least.

That theory has been gutted over the last several years by Supreme Court decisions interpreting the Constitution’s Commerce Clause. That clause gives Congress the authority to regulate commerce “among the several States.” The Supreme Court has interpreted that clause to mean that Congress not only has the power to regulate interstate commerce directly, but also has the power to regulate things that “affect” interstate commerce. And what “affects” interstate commerce? Prior Supreme Court decisions would seem to suggest that just about everything affects interstate commerce. Ergo, Congress seemingly had the authority to regulate anything it wanted. Ergo, the Commerce Clause was seemingly meaningless, and our federal government was not one of limited powers after all.

That was just fine with liberals; they had long viewed the Constitution as an irritating impediment to their ability to jam their utopian vision of society down our throats. Are people affecting interstate commerce just by sitting on their couch and breathing? Of course they are, liberals argued with a straight face. If you’re just sitting in your living room minding your own business, of course Congress has the power to reach inside your living room, grab you and force you to buy something you don’t want to buy. Health insurance today, broccoli tomorrow. Stay the hell out of our bedrooms, Congress, but by all means, reach inside our living rooms and force us to buy health insurance!

Thankfully, the Supreme Court today prevented Congress from using the Commerce Clause as an excuse to regulate inactivity. That is an important line in the sand to prevent Congress from completely ignoring our freedoms. Had the court ruled otherwise, there would have been essentially no limits on Congress’s power to micromanage our lives.

The court did, however, uphold Obamacare’s individual mandate — that is, the requirement that people either buy health insurance or pay a penalty. The court reached this result by concluding that the penalty was in fact a tax, something that the Constitution authorizes Congress to levy. President Obama, of course, had vehemently denied that the penalty was a tax — and, in the height of cynicism, instructed his lawyers to argue the complete opposite of his own position. Just win, baby.

The notion that the penalty is a tax is troubling. Can Congress now force us to buy broccoli, and then “tax” us if we fail to follow their orders? Can the federal government “tax” us for failing to buy products sold by the president’s cronies? If they could have taxed us for failing to buy solar panels from Solyndra, for example, the company would never have gone bankrupt. Although I disagree with the Supreme Court’s ruling that the Obamacare penalty is a tax — and can conjure horrible scenarios that could conceivably result from that ruling — a further evisceration of the Commerce Clause would have been much more troubling. In the future, liberals may indeed try to use Congress’s taxing authority as a pretext to micromanage our behavior in health care and other areas. Thanks to this ruling, however, it would be harder for them to conceal the fact that they were proposing a massive tax increase. Let them fight that battle in the political process.

Speaking of the political process, that’s where the battle now returns — and that’s where it belongs. As conservatives, we don’t want Congress running roughshod over the Constitution — that why today’s Commerce Clause ruling is so important. But by the same token, we greatly prefer that political decisions be made by us through the democratic process rather than being imposed upon us by the courts.

It is now up to us to persuade our fellow Americans what most of them already know: that Obamacare is a disaster that will harm us all, especially the most vulnerable in society. That the legislation’s appalling design flaws will drive more and more people into government-subsidized health care. That the resulting financial strain will burden our economy with increased taxes, increased debt and lower growth. That care will inevitably be rationed, and people will have less incentive to go into medicine and to develop new life-saving devices and procedures. That the long-term care program under Obamacare, which was supposed to supply much of the “savings” touted by the bill’s supporters, has already been dropped by the Obama administration because it is actuarially unsound. That the costs of every major entitlement program were grossly underestimated at the time of passage, and that the estimates for Obamacare were distorted by dishonest accounting gimmicks. That Obamacare will cause the health care industry to be micromanaged by bureaucrats, which will greatly benefit lobbyists but will inevitably result in favoritism, cronyism, corruption and mismanagement. That the favoritism is already well underway: well over a thousand waivers have been granted, largely to unions and others that supported Obamacare (but don’t want to live by it themselves). That Obamacare will continue to cause health insurance premiums to rise and will continue to reduce choice by driving insurers out of the market. That Obamacare imposes many disincentives to create jobs for those who need them the most, including a significant penalty for small businesses to grow above 50 workers. That if we continue to act like adolescents, and cheer at the government giving us free goodies without caring how they’re paid for (free preventive care, yay!), our government will eventually become too broke to protect the most vulnerable in society. That Obamacare is a massive new entitlement program that arrives at a time when, according to the president’s own debt commission, we’re being driven to fiscal ruin by the entitlement programs that we already have.

I devote an entire chapter to Obamacare’s design flaws in my book. But it’s not enough to point out how wrongheaded Obamacare is. Conservatives have to propose alternatives that empower people — especially poor people — to act as health care consumers rather than wards of the state; that enable people to save money by making the right choices and consuming health care wisely; that require insurance companies to compete, abolishing a status quo in which they’ve lobbied states to limit competition; that prevent slick trial lawyers like John Edwards from manipulating juries with their phony charm, which in turn drives up costs for all of us. Conservatives have come forward with excellent ideas for ensuring universal access to health care. One proposal is to replace employer tax breaks for health care with a voucher that would make basic coverage affordable to all. Another proposal would use subsidized exchanges to ensure that those with pre-existing conditions can access health coverage; unlike the exchanges under Obamacare, these exchanges would not be hamstrung by federal micromanagement and hence consumers would benefit from genuine competition.

The battle to make health care affordable and universally accessible is now back where it belongs: in the political arena. If we cannot convince our fellow Americans that our ideas are better than that disaster called Obamacare, then we deserve what we’re going to get.

David B. Cohen served in the administration of President George W. Bush as U.S. Representative to the Pacific Community, as Deputy Assistant Secretary of the Interior and as a member of the President’s Advisory Commission on Asian Americans and Pacific Islanders. He is the author of Left-Hearted, Right-Minded: Why Conservative Policies Are The Best Way To Achieve Liberal Ideals.