February 7, 2011
By Robert E. Moffit, Ph.D.
In a second major court battle, Florida v. The United States Department of Health and Human Services, Federal District Court Judge Roger Vinson last week struck down the massive Patient Protection and Affordable Care Act - "Obamacare" -- as an unconstitutional expansion of federal power. Last December, Federal District Court Judge Henry Hudson, in Virginia v. Sebelius, nullified the individual mandate in the law to purchase government-approved health insurance. But he stopped short of striking down the entire law as a violation of the Constitution. So, these big cases, involving 28 states, are headed to the United States Supreme Court.
In both cases, the careful reasoning of the judges, grounded in the plain meaning of the English language, legal precedent and the intentions of the Founders, as outlined in The Federalist and elsewhere, was a refreshing return to common sense. Collectively, these judicial decisions are tantamount to a return to the fundamental principles of American government.
Congress should follow suit. In framing a sound health care policy to replace this big, sloppy and unconstitutional law over the next two years, lawmakers should remember that they are the representatives of the citizens of a republic. That means that their authority is held as a public trust over public affairs (res publica) and not private affairs (res privata). In contrast to the expansive doctrines of the "progressive" ideologues in the Obama Administration, health care is, at bottom, a personal matter. It is a matter of personal freedom and responsibility, not the preferences or responsibility of employers, managed care executives and government officials. In the care of individuals, the relationship between doctors and patients should be sacrosanct. Current policies and practices are light-years away from that vision, but sound health policy would restore it. Starting now.
Congress should also recognize that our republic is a federal republic, meaning, as James Madison emphasizes in Federalist No. 10., that legitimate authority is judiciously divided between a national government, concerned with general affairs in a specific and limited way, and state governments, that have the exclusive and residual authority over particular matters. Each is supreme within its own sphere, and neither can encroach upon the rights of the other without violating the Constitutional balance of power. In striking down Obamacare's offensive provisions, Judge Hudson and Judge Vinson each hammered home that key point home.
In no area of public policy is the division of authority potentially more productive than health care policy. Under Article I, Section 8, Congress has specific powers that, if properly exercised, could dramatically improve the functioning of the health care sector of the economy and improve the lives of all Americans, especially the millions that do not have health insurance.
First and foremost, Congress has the power to raise revenue and thus must make tax policy. In health care, persons get unlimited tax relief for the purchase of health insurance if and only if they get it through their place of work. If they do not or cannot, they get nothing; and they must purchase individual coverage with after-tax dollars. This arrangement sharply increases cost, undermines portability of coverage and restricts access to affordable care for millions of Americans. The right policy is to make sure that the federal tax treatment of health insurance is fair, equitable and universal and not merely a function of one's employment.
Second, Congress can promote competition in the nation's health insurance markets. Americans can buy goods and services anywhere in the country regardless of their state of residence. They should be able to do the same with health insurance. Under its Constitutional authority, Congress can eliminate barriers to interstate commerce in health insurance and allow the estimated 1,200 insurance companies to directly compete for consumers' dollars. That won't solve every problem in health insurance markets, but millions of Americans would benefit from the scope and intensity of market competition.
Finally, Congress can promote, not hinder, experimentation in the states with health care reform, providing technical assistance and even grants to state officials who want to try different approaches to expanding access to coverage, controlling cost or improving quality. As with welfare reform, states should promote health reforms that are compatible with their particular conditions. The Founders believed that Federalism would not only serve as a bulwark of personal liberty but would also fuel innovation in public policy.
The Founders got it right the first time. Congress should heed their peerless political wisdom.
Moffit is a Senior Fellow at the Center for Policy Innovation at The Heritage Foundation.
First appeared in the Health Reform Report.
Robert E. Moffit, Ph.D.
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