Supreme Court watchers are already parsing the nine justices’ questions in this week’s health care case and their previous rulings, trying to predict where they will side on the Obama health law.
But this constitutional showdown will likely turn on a single lie: The Obama administration’s lawyers falsely claim that all Americans consume health care, and the need is “universal” and “inevitable.” In truth, half of Americans consume virtually no health care.
That fact proved important to the 11th Circuit Court of Appeals, the only federal appeals court to strike down the individual mandate. Judges Frank Hull and Joel Dubina, the bipartisan team that ruled against the mandate in August 2011, warned that the mandate is “woefully over-inclusive.” It conflates “those who presently consume health care with those who will not consume health care for many years into the future.”
According to data from the federal Agency for Healthcare Research and Quality, 50 percent of the population needs so little health care that they account for only 2.9 percent of the nation’s health care spending. Among the under-65 population — the group affected by the mandate — far more than half are perennial medical non-consumers. In this group, the mean health care expenditure for an entire year is a microscopic $238.
The Obama administration’s lawyers argue that all Americans consume health care and are thus engaged in health care commerce. They also argue that without the mandate, “free riders” will use health care without paying for it and shifting the cost onto others.
Hull and Dubina gutted both arguments in their decision. They showed that over half of all “free riders” belong to one of two groups wholly unaffected by the mandate: illegal immigrants and low-income Americans who will get coverage anyway under the new law’s vast expansion of Medicaid. “In reality,” the judges wrote, “the primary persons regulated by the individual mandate are not cost-shifters but healthy individuals who forego purchasing insurance.”
The true purpose of the mandate, said the judges, is to force healthy people to buy expensive health plans they won’t use. This subsidizes insurance companies, who in turn would use the money to provide unlimited coverage to people with chronic illnesses and pre-existing conditions. That health care non-consumer who uses a mere $238 a year of care would have to buy a plan worth $3,588 in 2016, according to the Congressional Budget Office, or a family plan valued at $11,026. Insurers would collect mandatory premiums from the healthy to pay for politically popular changes in insurance laws.
The 11th Circuit ruling paved the way for this week’s Supreme Court showdown, and it provides a window on what is likely to be the key issue.
Hull and Dubina concluded that to compel someone to enter health care commerce is different from regulating a person already engaged in it. Only the latter falls under Congress’ power to regulate interstate commerce.
Hull and Dubina noted that the federal government has compelled Americans to do only three things as a condition of residing in this country: to serve when drafted, to file income taxes and complete the Census.
When Congress passed the Flood Insurance Act of 1968, it devised incentives for people residing in flood plains to buy coverage. It never considered compelling such a purchase. Yet now, Congress seeks to compel Americans who do not need medical care to buy costly health insurance plans. It is like forcing Americans who live on hilltops to buy flood insurance.
Betsy McCaughey is a former Lieutenant Governor of New York and author of the new e-book DeCoding the Obama Health Law: What You Need to Know, which can be ordered at www.defendyourhealthcare.com
