- The Washington Times - Wednesday, November 16, 2011


The Supreme Court made the long-awaited announcement Monday that it will finally decide what to do about Obamacare. Though much attention has been given to the impact a ruling could have on the upcoming presidential campaign, the implications reach far beyond the electoral cycle. This is one of the most important cases setting the direction of America’s future.

The Patient Protection and Affordable Care Act covers a fifth of the U.S. economy, and everyone is affected. The high court generally allocates an hour of oral argument to go with the stacks of legal briefs in a normal case. Important issues get two hours. This one gets 5 1/2, showing just how big a deal the justices understand this decision will be.

Two hours’ worth of debate is set aside for the issue of the federal government’s authority to enact the individual mandate, which requires every person either to buy health insurance or to pay a fine. This time also will cover the establishment of state health exchanges and minimum coverage of health insurance provisions. Another 90 minutes will be spent on the question of whether the rest of the Obamacare legislation can survive if the individual mandate is found to be unconstitutional. One hour of argument will focus on the question of whether the Anti-Injunction Act prohibits the courts from ruling on the issue of the individual mandate because the law doesn’t go into effect until 2014. The remaining time will be allocated to whether the health care takeover violates the 10th Amendment and state sovereignty, particularly with the provisions that expand Medicaid programs.

The Supreme Court could strike down the entire law. It also could choose to strike down only the individual mandate, but without this piece Obamacare is unworkable. The individual mandate is necessary to stop a health insurance “death spiral” from happening. Without the individual mandate, there is nothing to stop people from waiting until they are sick to buy insurance, which defeats the purpose of getting insurance to spread the risk among the healthy and those who are not.

Until these questions are resolved, the states would be wise to put plans to implement Obamacare on hold. The biggest immediate expense is putting insurance exchanges into place, which can cost as much as $10 million a year for a state as small as North Dakota, which wisely has voted against implementation. Michigan, on the other hand, despite being one of the litigants in the case pending before the Supreme Court, has voted to start creating an exchange. The argument is that it would be easy to dismantle the exchange if it is found to be unconstitutional. That ignores the millions in taxpayer dollars to set up the new bureaucracy and the many millions of dollars, presumably, to operate it. It’s never easy, and usually is impossible, to get rid of a government entity once it’s created.

There’s enough evidence already that Obamacare is far more expensive than originally estimated, and states shouldn’t suffer those costs right now. It’s better to wait a few months for the Supreme Court to clarify whether the words of the Constitution still mean something with a ruling that there are limits on what the government can do.



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