COM­MENT & ANAL­Y­SIS

Oba­macare’s day in court Jus­tices hear ar­gu­ments in the ul­ti­mate case on limited gov­ern­ment

The Washington Times Daily - - Opinion -

It’s Oba­macare week at the Supreme Court. The jus­tices on Mon­day spent the first two of the six hours planned for oral ar­gu­ment dis­cussing the con­sti­tu­tion­al­ity of the health care takeover. It’s been a long road since thenS­peaker Nancy Pelosi’s flip­pant dis­missal of such con­cerns with the re­sponse, “Are you se­ri­ous?” Now the high court is giv­ing more time to this ques­tion than it has to any oth­ers in 47 years.

Oba­macare is unique in that it re­quires Amer­i­cans to buy some­thing from a pri­vate party, namely health care, or pay a penalty. This in­di­vid­ual man­date is es­sen­tial for the en­tire scheme to work. With­out it, healthy peo­ple sim­ply would opt out of the sys­tem be­cause the new law also for­bids in­sur­ance com­pa­nies from charg­ing dif­fer­ent prices based on health sta­tus. This cre­ates an ad­verse-se­lec­tion death spi­ral in which healthy peo­ple exit the mar­ket, leav­ing only ex­pen­sive-to-in­sure sick peo­ple in the in­sur­ance pool.

The nine jus­tices plan to spread out four key is­sues over three days. Mon­day’s dis­cus­sion cen­tered on whether the suit is barred un­der the Anti-in­junc­tion Act, which would mean the court should only take up the ques­tion in 2014 when the in­di­vid­ual-man­date penal­ties are en­forced against some­one. Sec­ond, and this is likely the heart of the case, is whether the in­di­vid­ual man­date is a con­sti­tu­tional ex­er­cise of Congress’ au­thor­ity un­der the com­merce clause. Third is whether the in­di­vid­ual man­date is sev­er­able from the rest of the leg­is­la­tion. The last is a more ob­scure is­sue re­quire­ment that states re­or­ga­nize their Med­i­caid pro­grams or for­feit fed­eral fund­ing.

De­spite trans­fer­ring con­trol of al­most a fifth of the U.S. econ­omy to the gov­ern­ment, Oba­macare fails in its goal to pro­vide in­sur­ance for all Amer­i­cans. A re­cent Con­gres­sional Bud­get Of­fice study pre­dicts that at least 10 mil­lion Amer­i­cans will still be left unin­sured af­ter the law is fully im­ple­mented. Far worse is the dam­age it does to the con­sti­tu­tional frame­work the Founders cre­ated of a fed­eral gov­ern­ment of limited and enu­mer­ated pow­ers. When asked each time in the lower courts, the gov­ern­ment’s lawyers have failed to come up with any lim­it­ing prin­ci­ple on the fed­eral Com­merce Clause. Should the ad­min­is­tra­tion suc­ceed, the gov­ern­ment’s power truly will be un­lim­ited.

In­creas­ingly, the gov­ern­ment is re­ly­ing on the “nec­es­sary and proper” clause in its ar­gu­ments. True, the man­date is nec­es­sary for the reg­u­la­tory struc­ture to func­tion. But it gives sweep­ing, un­re­strained pow­ers to the fed­eral gov­ern­ment, con­trary to the expressed pur­pose of the Con­sti­tu­tion to have a fed­eral gov­ern­ment of limited and enu­mer­ated pow­ers. That makes it im­proper.

This Oba­macare case couldn’t be more crit­i­cal to the fu­ture of this na­tion. Up­hold­ing the in­di­vid­ual man­date leaves gov­ern­ment with un­tram­meled au­thor­ity, ren­der­ing the Con­sti­tu­tion an empty doc­u­ment. The high court needs to do the right thing and strike down this un­con­sti­tu­tional fed­eral over­reach.

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