Most Americans assumed that the most important issue in today’s Obamacare decision would be whether or not the Supreme Court would find the Act unconstitutional. But to anyone concerned about limiting federal power, the ruling on the Act itself is secondary to the grounds the Court used to justify this expansion of federal power. Put simply, if you were to ask most lawyers over the past 70 years what provision of the Constitution has been interpreted as giving the federal government the widest sweep of power, the overwhelming majority would have agreed it was the Commerce Clause. But today, the Court has turned constitutional jurisprudence on its head, finding that the constitutional power to tax allows the federal government the power to regulate areas that even the Commerce Clause would not permit. Today, the Court finds that the power to tax (and thereby control behavior) is even broader than the Court’s virtually boundless prior interpretations of the Commerce Clause. However sweeping federal power was yesterday, it is much broader today.
The Court rejects the idea that the Commerce Clause grants Congress the power to regulate doing nothing, i.e., failing to buy health insurance. The Court then has some very encouraging statements about how the Commerce Clause is limited and does not afford the federal government the power to regulate us “cradle to grave.” It offers the hypothetical that the federal government cannot regulate our diets simply because an unhealthy diet might result in more healthcare expenses.
The Court then turns this excellent reasoning on its head by stating that the federal government has the power to tax activity it could not otherwise regulate under the Commerce Clause. The Court goes to some disingenuous length to explain why taxing behavior is neither regulation nor punishment. It never even bothers to answer the fundamental legal question of why imposing a punitive tax for failing to buy health insurance isn’t a “fine” under the Constitution. I suspect it did not want to deal with the notion of a fine because then the citizen would be entitled to all of the procedural protections of criminal law. But the Court never answers the fundamental question of how the government can lack the power to compel behavior but still have the power to punish that same behavior through the tax code. Indeed, the Court now opens the door for the government to tax a seemingly limitless range of action and inaction, not just in the field of commerce, but in all areas of our private, social, educational, and even religious conduct. This opinion provides the most sweeping expansion of federal power since the Commerce cases of the 1930s that allowed the New Deal.
On a separate, but extremely important ground, the Court addressed Obamacare’s Medicaid expansion. The Court rightly decided this issue. It found that Obamacare was attempting to transform Medicaid from a program designed to provide medical services to discreet, vulnerable populations into a general entitlement for everyone whose income is 133% of the poverty line. The Court found that this would violate the essential contract nature between the states and the federal government, and the government could not withhold all Medicaid funds simply because a state would not go along with the new expansion. The Court emphasized that whether or not a state goes along with this expansion is now a state by state determination.
Practically speaking, this means that in Missouri, who we elect as governor in 2012 assumes even greater importance. That governor will largely determine whether Medicaid in this state will remain a limited but enormous program or become a vast, unlimited entitlement. Under the Obamacare decision, states that accept this new Medicaid program will essentially be accepting total government run healthcare because the Court never suggests that this program will be limited to 133% of the poverty level. Just like traditional Medicaid, the Court places no restrictions on the federal government’s power to change the rules. Nothing prevents the federal government from moving up eligibility to 500% of the poverty line or higher. Indeed, if a state signs up for this expanded program, we can rest assured that if Obama is reelected, the enrollment will be expanded vastly upward and Medicaid will essentially become universal healthcare in the states that go along with this program.
The future of healthcare in Missouri as in other states will be determined in this gubernatorial election. This election will decide whether the states will approve a complete government takeover of healthcare or if a private insurance market will remain. The incredibly high stakes of Missouri’s gubernatorial election just got even higher
Bill Randles, a Republican gubernatorial nominee, is an ordained Baptist minister and former attorney who spent 16 years practicing corporate defense law. He holds bachelor‘s degrees from Southwest Baptist University, a master’s degree from Baylor University, and a J.D. from Harvard Law School. Bill Randles and his wife, Bev Randles, reside in Kansas City where they are active church members of the Refreshing Waters Worship Center.
His opposition for the Republican nomination for governor includes pro-life activist Fred Sauer and plastics manufacturing executive Dave Spence.