When Congress was debating the Obamacare law last year, I raised many concerns about the size and scope of the law and the outrageous amount of new federal taxes and spending it created. Like many people, I also have grown concerned about the law's impact on Americans' personal freedoms. My concern stems not only from its controversial mandate that every American buy health insurance, but also from other federal mandates that could follow.
In challenging Obamacare's individual mandate, the law's critics have pointed out that if Congress can force Americans to buy health insurance, federal power would be nearly unlimited. Congress could pass a law requiring you to eat broccoli, for instance. Until recently, Democrats have derided this argument; the market for health care is unique, they have said, and so-called broccoli mandates would be so frivolous that Congress would never enact them.
Yet just last month, President Obama's former budget director, Peter Orszag, changed course, suggesting that Congress should impose another mandate on the American people. Writing about the CLASS Act - a long-term care program created in Obamacare - Mr. Orszag admitted that the program suffers from a "serious risk" that only sick people will participate, making it unsustainable. He said the solution to this problem "may be to make the purchase of such insurance mandatory."
Think about that for a minute. Before the health insurance mandate came along, a federal requirement for people to buy a particular product - insurance or anything else - was unprecedented in our nation's history. Yet a little more than one year later, there already is a call for the federal government to impose another mandate on the American people. The first step in this direction was bad enough. A second step clearly would take us down a dangerous path of even more federal overreach.
This is not just idle speculation by a former government official. In fact, the way the Obama administration has defended its health care law makes it seem almost impossible for it to do anything except require that everybody buy into the fatally flawed CLASS program.
Here's how it works: The administration claims that the insurance mandate is "essential" because, without it, insurance markets would be subject to adverse selection - only sick people would enroll and premiums would skyrocket as a result. But the CLASS Act is subject to the same - or even greater - adverse selection pressures as the market for health insurance. So if Obamacare has an essential mandate to purchase health insurance, it seems it would be just as essential that the government mandate participation in CLASS.
I am afraid that line of reasoning could be used to require people to participate in the CLASS program whether they want to or not. Even Democrats have derided the CLASS Act, with Senate Budget Committee Chairman Kent Conrad calling it a "Ponzi scheme of the first order, the kind of thing Bernie Madoff would have been proud of."
The program was drafted in such haste that Health and Human Services Secretary Kathleen Sebelius admitted to me when appearing before a Senate committee that the CLASS Act is "totally unsustainable" as written in Obamacare.
That is the best reason to reject this kind of individual mandate, whether it is to participate in CLASS or to buy health insurance. Our government should not justify such mandates as "essential," and therefore constitutional, merely to alleviate pressures caused by sloppy policymaking in Congress.
In rejecting the individual mandate and all of Obamacare in January, U.S. District Judge Roger Vinson wrote that upholding the mandate "would have the perverse effect of enabling Congress to pass ill-conceived or economically disruptive statutes, secure in the knowledge that the more dysfunctional the results of the statute are, the more essential or 'necessary' the statutory fix would be."
The CLASS Act and the recent proposal to require Americans to participate in the program provide a prime example of what could happen if the Supreme Court lets unprecedented mandates overcome ill-conceived policy generated by Congress.
We need to make sure this effort is stopped in its tracks - or else start learning to love broccoli.
Sen. John Thune is a South Dakota Republican.
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