Before The Tide Comes In: Obamacare and the HHS Mandate

Everyone in the new and social media universe has been predicting that sites like Twitter will be crashing later this morning when the Supreme Court decision on whether to uphold Obamacare or not comes out at about 10:00 am Eastern Daylight Time.  So before the internet is broken, I wanted to share some of the thoughts I took away from last evening’s Conservatism On Tap discussion entitled “After Obamacare”.  It was sponsored by the Intercollegiate Studies Institute and featured Kyle Duncan, General Counsel of The Becket Fund for Religious Liberty, and Professor Peter Lawler of Berry College.

As Mr. Duncan pointed out, the ultimate question before the Supreme Court is whether it is within the power of Congress under the Commerce Clause to mandate that people purchase health insurance: in other words, can Congress create commerce by forcing people to engage in it?  The average legal expert tends to believe that one cannot do this, at least as far as the individual mandate is concerned, but then the question becomes whether the law is severable, i.e. can parts of the law still survive even if the individual mandate is removed.  For example, if the individual mandate alone is ruled unconstitutional, does the HHS mandate remain in place, since that specific issue is not presently before the Supreme Court?

One of the analogies Mr. Duncan made last evening was particularly striking, whether one agrees with it or not.  With respect to the HHS Mandate itself, one can make the argument that Obamacare is a mortgage on our Constitutional freedoms, and the HHS Mandate limiting religious freedom is the first installment payment which is coming due.  Thus, if the Supreme Court does not strike down Obamacare in its entirety, then the Becket Fund and others plan to continue their lawsuits against the HHS Mandate, and that will be the next wave of cases generated by this law to be making their way up to the Supreme Court.

Professor Lawler pointed out that the Congress which passed Obamacare in the first place no longer exists.  Thus, if for some reason it is overturned in whole or in part, this Administration – even if it survives in November – would not have the chance to try again, unless there was an entirely unanticipated Democratic electoral tidal wave that flooded into both the House and Senate.  He also commented that now that some on the left have taken up the banner of crying judicial activism anticipating the overturn of Obamacare, they are going to have a problem.  The only way to get the public on your side with a cry of judicial activism is when the public thinks that the courts have gone too far; since Obamacare is so widely unpopular, the strategy of attacking the Supreme Court probably will backfire in the face of anyone on the left who attempts it.

The reality that everyone has to face is that employer-based healthcare programs are not really sustainable, Professor Lawler believes.  Healthcare will eventually have to devolve either to the individual or the government, and policy wonks understand this but the general public does not.  Ask your average GOP voter for example what he thinks of losing his employer-funded healthcare, and he panics.

Policy wonks have been exploring the changes that need to happen mostly with other policy wonks, rather than with the general public, and this needs to change because employer-provided healthcare cannot survive our demographics.  When people are living longer, and having fewer children, the system falls apart.  Unless people start taking up smoking and bad eating habits again and dying in their 50′s and 60′s, and having three or more children each, we cannot continue to have the system drawn up 30 or 40 or more years ago.  When planning for the future, Americans are going to have to get used to the fact that there will be uncertainty, and Mitt Romney needs to be preparing people for this, rather than trying to cover up reality with an unworkable mess, which is what this Administration made, regardless of whether or not the law itself is unconstitutional.

With respect to the HHS Mandate, discussion centered around the notion that the religious employer exemption is an example of the government interfering and telling people how to arrange themselves so that they can qualify as religious “enough” to meet an arbitrary definition selected by this Administration.  In fact, when coming up with the definition of what is a religious employer they simply chose the most restrictive possible, so that for example EWTN, the Catholic television and radio network, would not qualify as a religious employer because they do not solely broadcast their programming to Catholics.  The same would hold true for Catholic hospitals, universities, and so on, unless their primary activities were proselytizing and the exclusive care of their members.

These are some interesting points, then, for us to consider as we await the Supreme Court’s decision today.

“The Great Wave off Kanagawa” by Katsushika Hokusai (c. 1826-1833)
Library of Congress, Washington

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