Basking in cautious confidence, we wait until the end of June, by which time the Supreme Court should have made its decision that Obamacareor at least its individual mandateis unconstitutional.
Were not supposed to count our chickens before they hatch, but Id like to argue that the Supreme Court shouldnt stop at Obamacare. Once they get rid of PPACA, theres more to overthrowsome of their predecessors making.
Why? Well, if Obamacares suporters had re-framed the individual mandate as just another tax, Obamacares opponents would likely not have had a constitutional leg to stand on. Because Mitt Romney had signed legislation in Massachusetts that included an individual mandate, the Democrats figured that theyd be able to catch Romney out if they did the same thing.
Oops: That sure was a mistake. Nevertheless, if the individual mandate is the only constitutionally offensive part of this mess, a long-term challenge remains for opponents of federally controlled access to health care. We need to get rid of the very notion that the federal government should direct or regulate private health insurance for working-age people. Whether Medicare or Medicaid are constitutional is surely a political step too far. But private insurance? The argument for federal regulation is very weakand the evidence of its consequences damning.
There is a seldom challenged assumption that weighs down every proposal on health reform, even those by the most conservative Republicansthat health insurance is interstate commerce and therefore subect to Congressional lawmaking. But health insurance is not a good or service that crosses state lines. It is a contract to pay certain costs in exchange for premiums. And contracts are governed by state laws.
As Avik Roy has written over the last few days in this space, the FDA is killing people because of unnecessary delays in approving new medicines. Unfortunately, there is little doubt that medicines are trafficked in interstate commerce, so Congress can create an FDA. However, physicians are licensed by states; and state licensing boards decide the conditions under which they will recognize each others licenses. Ive never heard an argument that the federal government should take over this responsibility.
With respect to health insurance, we need to ask the Supreme Court to take another step to ensure that the federal government does not attempt once again to intefere in our choices. From the earliest days of the republic to 1944, it was generally understood that all insurance regulation was within states powers. That year, the Supreme Court heard U.S. vs. South-Eastern Underwriters Association, and decided that the Constitutions interstate commerce clause did apply to insurance. However, a Congress wiser than todays decided otherwise, and immediately passed the McCarran-Ferguson Act to ensure that states continued to regulate all types of insurance.
Unfortunately, the Employee Retirement Income Security Act (ERISA) of 1974, the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1986, and the Health Insurance Portability & Accountability Act (HIPAA) of 1996 have driven Congress into the business of health insurance. HIPAA, passed with strong bipartisan support in the wake of Hillarycares failure, was supposed to cure the problems that Obamacare asserts to solve.
All of these laws have made health insurance more complicated, expensive, and frustrating to consumers and providers. Automobile insurance, on the other hand, is extremely convenient, simple to understand, and almost universally accessible. If I moved from California to another state, I would simply call my insurer, tell the operator my new ZIP code, receive a small adjustment to my premium, and carry on driving.
Yet auto insurance is entirely regulated by the states, which have long since figured out how to allow affordable coverage that is portable across state lines. Our crisis of health insurance will not be solved by more federal insurance laws, but lessand perhaps even none. When it comes time to replace Obamacare with real health reform, Congress should focus on eliminating the discrimination in the tax code against individually owned health insurance. That having been done, there will be no need for Congress to regulate private health insurance.
We probably cannot trust Congress to cease and desist from continuing to harm our access to affordable health insurance on its own. There is a passel of harmful federal laws governing health insurance that need to be re-examined and rolled back. Regrettably, Congress has stuck its fingers deeper and deeper into health insurance over the last half century, resulting in national crisis.
It would be exciting to see the Supreme Court remove Congress ability to continue to inflict harm on our access to health insurance by overturning U.S. vs. South-Eastern Underwriters Association.
|John R. Graham is a former Senior Fellow at the Independent Institute.|