Supreme Court Should Invalidate, then Amputate Obamacare

The saga of Obamacare is a great example and lesson to be learned from trying to do the right thing but doing it in the wrong way.

Obamacare is about as popular as broccoli. The Republicans see Obamacare as a distastefully delightful political wedge they can use to evict Obama from the White House; while the Democrats act as though Obamacare is a bastard stepchild forced upon them in a marriage of convenience. It is unfortunate that Obamacare has become a political lightening rod of criticism, because the intent and objectives of the plan are not only ethically high-minded, but are needed and right.

Last week we witnessed another chapter in this morbidly sick health care saga when the “constitutionality” of Obamacare was argued, in a circus-like atmosphere, before the Supreme Court. And while the nine justices argue the heady constitutional issues, let us consider here the political perspectives of Obamacare and how we arrived in the vortex of this emotional storm. To do so, we need to explore the roots of the controversy, including the errors made by Obama and the strategy of the Republicans who oppose health care reform.

The U.S. Stands Alone for the Wrong Reason

America is the only country among the top 46 most industrialized nations that does not recognize health care as a basic right of its citizens. As a result, America has a health care model that leaves almost 50 million people with no health care coverage, and the rest of us are left to be gouged and abused by health insurance companies that have the single-minded objective of making a profit by providing the least benefits for the most premiums. Clearly the health care system of America is an abject failure.

Every president since Roosevelt recognized the inequities in the American health care system, and in one way or another, tried to address the issue. All have failed. But Obama made health care reform the centerpiece of his 2008 campaign just as Clinton did in 1993 (with ample help from Hillary). Obama, driven by a sincere desire to simply do something – anything –unfortunately did the wrong thing in an effort to do the right thing. Driven by a single-minded belief that “anything” was better than “nothing,” an inexperienced Obama allowed himself (and the country) to be sucked into a debate over convoluted “process and procedure” when, as a leader, he should have been focused on simplifying and selling the “vision.” Obama sowed the seeds for dissent when he failed to frame the debate in the form of one simple question: Should basic health care for every American citizen be a right or a privilege?

Positioning the health care debate as a question of either a “right” or a “privilege” would have offered a clear choice for Americans as a society and it would have put politicians in the type of untenable position they squirm to avoid. What politician wants to tell the electorate that health care is a “privilege” not a “right?” (Except for Ron Paul who will say, “Let ’em die.”) Remember, there are millions of Americans who have the desire and resources to purchase health care coverage, but insurance companies will not allow them the “privilege” of doing so. Unfortunately, when Obama failed to position the health care debate as a choice between “right” and “privilege,” he was forced to accept a plan that was bogged down by detail and fatally flawed.

But Obama wasn’t alone in creating a legislative abomination. The Republicans have adroitly positioned the Obamacare debate – not about “right” and “privilege” – but about “freedom” and “mandate.” The Republicans pontificate about Americans having the “freedom” to do what they want and that the government should never have the power to “mandate” (force) Americans to buy what they don’t want to buy. The Republicans knew they could not win the “battle” over the need for health care reform, but Obama’s failure to provide strong leadership opened the door for Republicans to win the “war.” Given the opportunity, the Republicans craftily placed this ticking time-bomb of “freedom” and “mandate” in Obamacare and Obama was forced to accept in order to get passage of the bill.

Here is What Happened

In order for any health care reform to work, every citizen must participate in one way or another. Either the individual must be covered under the plan or they must demonstrate that they are participating in a plan that provides equal or better benefits. The traditional way for a government to achieve this objective is with the power to tax individuals. For example, Social Security was conceived as a needed “safety-net” to provide income for people when they retired; not only for their own benefit, but for the protection of society, because if millions of people retired with no income, they would become dependent on society. The government understood that for Social Security to work it could not be voluntary and everyone had to participate.

The Supreme Court has consistently affirmed the power of the government under the constitution to tax individuals for benefits provided, even if they don’t want or use them, i.e. people are compelled to pay property taxes to fund schools, even if they have no children. When Social Security was adopted, Congress established a “payroll tax” on every worker and employer to fund future benefits. There were no exceptions; even if the worker was rich, self-employed, had another plan or didn’t want the benefits. (Congress did exempt itself, workers in state, city and other government units from Social Security, so long as they could show that an equal or better plan existed and was paid for with local taxes.) Medicare is another example of a government program where mandatory participation is enforced with increased taxes.

Now here is the rub with Obamacare. The Republicans steadfastly opposed any increase in taxes to fund health care reform. They promised to filibuster and kill any reform bill that included new taxes to pay for the benefits. This put Obama in a conundrum. The reform would not work unless everyone participated and the only way to assure that happens is through the use of taxes. Faced with this quandary, Obama stole an idea from the Massachusetts Romneycare plan. Romney, a Republican, could not persuade the Democratic controlled legislature to increase taxes to force compliance with his plan, so he simply “mandated” participation, with “penalties” for not complying. (In Republican debates during the 2008 campaign, Romney steadfastly argued in favor of mandates for this type of program. And it should be noted that the conservative American Heritage Society was the first group to propose mandates for health care reform.)

Desperate to get his reform passed, Obama made a deal with the Devil, and secured a Republican promise not to kill the bill in exchange for using a “mandate” with “penalties” rather than taxes to assure universal participation. The Republicans cunningly agreed to this “deal,” because they firmly believed that such federal mandates were a violation of the “commerce clause” of the constitution. The Republicans saw this as a strategy to ultimately win the “war,” because of their belief that Obamacare would be ruled unconstitutional and become as worthless as the 2,700 pages it’s written on. If you don’t believe this to be the case, just take note that before the ink was dry on Obama’s signature on the bill, 26 Republican controlled states had filed suit challenging the constitutionality of Obamacare.

In simple terms, the “Commerce Clause” of the constitution has been construed by the Supreme Court as granting the federal government the power to regulate commerce, but not the right to create commerce. In other words, the government has the power regulate the automotive industry, but it does not have the right to “mandate” (require) individuals to buy a car. It may seem like contorted logic, but in examples like Social Security and Medicare the Supreme Court has ruled it constitutional for the government to establish these programs and then to force everyone to “buy-in” by imposing payroll taxes. If Social Security and Medicare had been passed with a “mandate” requiring that everyone had to participate or pay a “penalty,” both programs could have been ruled unconstitutional and invalidated. When the Republicans threatened to filibuster to death any health care reform bill that contained new taxes to fund and force participation, they were setting up the “commerce clause” as a trap to ensnare Obama and Obamacare.

However, one can lose a lot of money trying to predict just how the Supreme Court will rule on an issue. While the “expert opinion” suggests that it is likely the Supreme Court will decide that at least the “mandate” section of Obamacare violates the “commerce clause;” an action that would basically neuter the reform effort, there is room for the Court to rule differently. The Supreme Court could also look to the “Necessary and Proper” clause of the Constitution and declare that the elements of Obamacare, such as the mandate, is within the “necessary and proper” power of the government in order to implement the benefits of providing basic health care to all Americans. We will just have to wait and see. But the bottom line should be clear: We could have avoided this legislative and judicial morass if Obama had provided the leadership necessary to make the debate a choice between a “right” and a “privilege.”

The Moral of the Story . . . 

Good intentions, the desire to right a wrong or “do good” are wonderful qualities for a person to have, but they will not be achieved simply because they should be; especially in the world of modern politics. For a leaders to be successful doing what is right, they must have the experience and ability to clearly see, state and sell a vision of what is to be achieved and why. To be successful, a leader must frame the debate, not be framed by it.

For all his good intentions, his desire to right the wrongs of health care and his goal to make the system better for all, Obama failed because he lacked the leadership experience to effectively elucidate his vision and rather than defining the choice as one between a “right” and a “privilege,” he allowed those who opposed his efforts to define him.

(If the Supreme Court does declare Obamacare unconstitutional it may be a good thing and next week we will explore why. I know you just can’t wait!)

3 responses to “Supreme Court Should Invalidate, then Amputate Obamacare

  1. one more thought. A mandatory monthly fee for all persons, maybe $10.00 to be put into a fund for any hospital bills beyond a $50,000. max. that way all private insurance would limit their risk and could lower premiums to all, and the fund could pick up the big bills which could be readilly negotiated for quick pay.

  2. readily

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