Next week, the U.S. Supreme Court will hear three days of oral arguments in the healthcare lawsuit challenging the constitutionality of the Patient Protection and Affordable Health Care Act, otherwise known as "Obamacare."
We now know the law was based on phony predictions about its cost. After promising the price would be under $940 billion over 10 years, the nonpartisan Congressional Budget Office has issued a correction of its initial estimate, which appears to have been based on sleight of hand accounting tactics by congressional Democrats and the White House. CBO now projects the measure will cost taxpayers at least $1.76 trillion over a decade.
Randy E. Barnett, the Carmack Waterhouse professor of legal theory at the Georgetown University Law Center, is troubled by the administration's shifting rationale in its defense of the health care law: "First they told us this was an easy 'Commerce Clause' case. Then they (said) it was an exercise of the Tax Power. Now it is the Necessary and Proper Clause. If the mandate was so obviously constitutional, the government would not be shifting its position 10 days before oral argument."
Ilya Somin, an associate professor at George Mason University School of Law, adds, "Despite this seeming shift, the federal government's brief almost completely fails to consider the question of whether the mandate is 'proper,' as well as 'necessary.' The Supreme Court has made clear that these are two separate requirements, both of which have to be met. And a law that can only be defended by a rationale that gives Congress a blank check to enact virtually any other mandate clearly is not 'proper.'"
Many wonder what will happen to needed reforms in health care should the individual mandate -- the heart of Obamacare -- be struck down. That question is answered in a timely new book published by the Pioneer Institute, a Boston-based public policy research organization, titled "The Great Experiment: The States, the Feds and Your Healthcare." In a series of essays compiled by Joshua Archambault, director of Health Care Policy at the Pioneer Institute, and with a forward by Jeffrey S. Flier, M.D., the dean of Harvard Medical School, experts propose the states take the lead in reforming health care, as Massachusetts did, rather than dictate a one-size-fits-all system from dysfunctional Washington.
The authors propose what they call "Competitive Federalism" that would allow for a federal partnership, but permit states to fashion their own approach to health care based on their individual circumstances. Refundable tax credits, high-risk pools and Medicaid reform are among the specific recommendations for maintaining the high quality of health care America now enjoys while providing coverage and reducing costs for people whose access to care is now limited and for those now paying the bills.
Along with the bipartisan Medicare reform plan developed last year by Rep. Ron Wyden (D-OR) and Paul Ryan (R-Wis), which was dismissed by supporters of the status quo who prefer the issue to a solution, these are serious and doable proposals that deserve congressional consideration.
As Pioneer Institute Executive Director Jim Stergios writes, "Despite years of effort and mountains of regulations, the federal government has proven incapable of screening for quality (health care), and acting on that information. It is time for states and the federal government to hit the reset button."
The Supreme Court might give them that opportunity. We should know by June how the likely slim majority will rule. Much of our future depends on the Court's decision because it goes to the heart of what the government can be allowed to impose on a free people.
If the high court doesn't invalidate the individual mandate, there will be no stopping government from threatening our most valuable possession: liberty.