Boston Globe: “Harvard Pilgrim Health Care has notified customers that it will drop its Medicare Advantage health insurance program at the end of the year, forcing 22,000 senior citizens in Massachusetts, New Hampshire, and Maine to seek alternative supplemental coverage.”
Richmond Times Dispatch: “Several months ago President Obama promised that Democrats would be proud to campaign on the new health care overhaul. With campaigns now peaking, the only Democrats who mention the law these days are the ones who voted against it. So supporters have decided to try a new approach: calling voters dimwits.”
Just as the opponents of Obamacare predicted, the new healthcare law is causing insurance companies to cancel various types of insurance policies because unlike the government, private insurance companies cannot survive by operating at a loss. Here are stories about recent policy cancellations:
Georgetown law Professor Randy E. Barnett has written a scholarly article called “Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional.” Here’s the abstract:
The “Patient Protection and Affordable Care Act” includes what is called an “individual responsibility requirement” or mandate that all persons buy health insurance from a private company and a separate “penalty” enforcing this requirement. In this paper, I do not critique the individual mandate on originalist grounds. Instead, I explain why the individual mandate is unconstitutional under the existing doctrine by which the Supreme Court construes the Commerce and Necessary and Proper Clauses and the tax power. There are three principal claims.
First (Part II), since the New Deal, the Supreme Court has developed a doctrine allowing the regulation of wholly intrastate activity: the substantial effects doctrine. Although commonly conceived as a Commerce Clause doctrine, from its inception this doctrine has been grounded in the Necessary and Proper Clause. In the 1990s, the Supreme Court developed a judicially administrable test for whether it is “necessary” for Congress to reach intrastate activity that substantially affects interstate commerce: the distinction between economic and noneconomic intrastate activity. Because the individual mandate fails to satisfy the requirements of this test as understood under existing doctrine, it exceeds the power granted to Congress by the Commerce and Necessary and Proper Clauses as currently construed by the Supreme Court. The mandate also fails to satisfy an alternative to the substantial effects doctrine that was proposed by Justice Scalia in a concurring opinion.
Second (Part III), because the “individual responsibility requirement” purports to be a regulation of commerce and cannot possibly be construed as a tax, it is not justified under the tax power of Congress; and, if the “requirement” or mandate is an unconstitutional regulation, there is nothing for the “penalty” to enforce. Neither is the penalty, considered apart from the regulatory requirement, a tax under current doctrine.
Third (Part IV), the Supreme Court should not further expand Congress’s power beyond existing doctrine to allow it to mandate that individuals engage in economic activity by entering into contracts with private companies. Such economic mandates are directly analogous to the commandeering of the states that the Supreme Court has held to be an improper exercise of the commerce power. The very few mandates that are imposed on the people pertain to their fundamental duties as citizens of the United States, such as the duty to defend the country or to pay for its operation. A newfound congressional power to impose economic mandates to facilitate the regulation of interstate commerce would fundamentally alter the relationship of citizen and state by unconstitutionally commandeering the people.
In Part V, I conclude with a “realist” assessment of likelihood that the Supreme Court will actually find the mandate to be unconstitutional.
Washington Examiner: “Half a year removed from the unprecedented legislative chicanery and backroom dealing that characterized the bill’s passage, we know much more about the bill than we did then. A few of the revelations:”
For more about the national nightmare called Obamacare, see a study conducted by The Heritage Foundation called “Implementing Obamacare: A New Exercise in Old-Fashioned Central Planning.” Here’s the abstract of the report:
“Obamacare—the massive health care law passed in March—constitutes the largest expansion of government since the Great Society. Americans have voiced their strong opposition, but the Obama Administration is determined to force-feed the new medicine. The Administration’s vision of health care is based on the premise that the federal government can—and must—control the details of health care financing and delivery across the country. The Patient Protection and Affordable Care Act (PPACA) is the scaffolding for this control. The new law gives the Administration extensive authority to achieve broadly outlined goals, allowing it to control every aspect of health care finance and delivery and to impose its view of how the health care system should operate. The Administration will issue volumes of complex regulations. Health care is being bureaucratized and politicized. The structure of the health care system will be determined by one central authority, reducing flexibility and denying Americans the ability to make their own choices. Americans will have to obtain health insurance and health care based on what the federal government deems best for them.”