It’s all about the coercion

Obamacare impinges on individual liberty and does harm to our system’s checks and balances.  SCOTUS has ordered an extraordinarily long time for oral arguments this summer because the issues really are BIG ONES.

In an odd way this administration may be accelerating the end of the progressive vision.  It’s sped up our fiscal bankruptcy and is forcing these Constitutional issues towards what may be, for them, an unsatisfactory outcome.  I guess we’ll see.  It might come down to what Justice Kennedy has for breakfast that morning. 

Here are good/brief summaries of the twin coercions involved: the individual mandate and the federal “coercion doctrine”.

Anti-Obamacare Brief, explained by Mario Loyola at NR:

The main insurance reforms in Obamacare — guarantee issue, age-based premium compression, and a host of other “improvements” — were attempted in a handful of states in the 1990s. The results were an unmitigated disaster; in most cases the individual insurance market collapsed in just a few years, and within ten years most of the states had repealed their ill-conceived “reforms.”

The reason for the disaster was the “adverse-selection death spiral.”  Once you require insurance companies to provide insurance to all comers, healthy people start waiting until they’re sick to get health insurance.  As healthy people leave the risk pool (“adverse selection”), premiums rise to keep up with the rising per-person cost of insuring people; rising premiums in turn drive more healthy people out of the market, and vice versa (the “death spiral”)… Obamacare has an individual mandate, which is meant to prevent the adverse-selection spiral…  In other words, Obamacare — without the individual mandate — is a more complete recipe for disaster than any of the state-based insurance reforms.

Its main “reforms” depend vitally on an unconstitutional insurance mandate. If the mandate disappears, but the rest of the law is sustained, healthy Americans above 400 percent of the federal poverty level ($43,561 income for a single individual) will be driven off health insurance altogether, and will wait until they’re sick to sign up. Insurance premiums will rise dramatically, and for those making between $15,028 and $43,561 for an individual the cost of federal subsidies will skyrocket. In short, without the mandate Obamacare will result in some combination of (a) devastation for health insurers and (b) skyrocketing federal deficits.

George Will in the WaPo, A Supreme Obamacare Test:

In theory, state participation in Medicaid is voluntary; practically, no state can leave Medicaid because its residents’ federal taxes would continue to help fund the program in all other states. Moreover, opting out of Obamacare’s expanded Medicaid would leave millions of poor people without affordable care. So Obamacare leaves states this agonizing choice: Allow expanded Medicaid to devastate your budgets, or abandon the poor…

The Supreme Court has held that the states therefore retain “a residuary and inviolable sovereigntyincompatible with federal “commandeering” of states’ legislatures and executives. Under Obamacare’s Medicaid expansion, states are dragooned for the furtherance of federal objectives…

The court thereby said the federal government cannot behave like Don Corleone, making offers states cannot refuse. At some point, government crosses the threshold of unconstitutional compulsion.

The crucial consideration is the degree of threatened impoverishment. Because of Obamacare, the nation needs clarity from the court. If it now thinks Congress has unfettered power to place conditions on states receiving money from it, the court should explicitly disavow its coercion doctrine. But if the coercion doctrine is to survive, Obamacare should not.

The Obamacare issues of Medicaid coercion and the individual mandate are twins. They confront the court with the same challenge, that of enunciating judicially enforceable limiting principles. If there is no outer limit on Congress’s power to regulate behavior in the name of regulating interstate commerce, then the Framers’ design of a limited federal government is nullified. And if there is no outer limit on the capacity of this government to coerce the states, then federalism, which is integral to the Framers’ design, becomes evanescent.

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