Director, Commonwealth Policy Center

Now that the smoke has cleared over last week’s fireworks when the U.S. Supreme Court upheld the Affordable Care Act (ACA) we should see clearer. Or not—since stray spark in Chief Justice John Roberts, who mostly sided with the liberal wing of the court, left conservatives scrambling for fire extinguishers if not explanations.                          

Before Roberts is accused of going rogue, consider that conservatives have longed complained of overreaching federal courts. Striking down the 2300 page law would have been the political left’s poster-child of judicial activism.  On the other hand, the Court gave a bone to the political right by striking down Congress’ rationale for the law as regulating interstate commerce thus putting the brakes on their expansive regulatory authority.  The law was ultimately upheld under Congress’ power to tax, (and they do this so well) which all sides agree is within their authority.  Not so much that the Court upheld the individual mandate which requires every American to have health insurance by 2014 or be penalized.                        

Along the lines of the knee-bone being connected to the leg-bone, striking that lynchpin down would have driven insurance companies out of business. If the Court had struck down the entire law it would have left a very ill-patient in Medicaid in something like political hospice (reforming it was part of the rationale for the bill).  

           ACA, otherwise known as Obamacare, greatly expands Medicaid by covering  individuals who earn up to 133 percent of the federal poverty rate. Yet on that point, the Court ruled 7-2 that states cannot be forced to expand Medicaid.  However, millions in up-front federal funds flowing to the states that expand Medicaid may prove an elixir too tempting for them to refuse. That may be why Governor Steve Beshear recently told Pure Politics that expanding Medicaid in Kentucky is still uncertain. “We’ve got to look at that hard and see what we’re getting ourselves into one way or the other,” Beshear said.  What Kentucky may be getting into is adding 320,000 new people to the Medicaid rolls by 2014. The state is hardly able to pay for the 800,000 enrollees already in the program.

            Taking short-term federal money to cover new enrollees may seem like a cure to Medicaid, but expanding an already overburdened system is a cure far worse than the disease. More government control, more taxes, and more government spending, is not what the doctor should order in an era of already burgeoning obligations and a faltering  economy.  By 2016 a family of four without insurance will be penalized $2085 and small businesses with fewer than 50 employees will pay $2000 per employee left without company insurance. Higher taxes on high-end insurance policies, pharmaceuticals and medical devices will be another tough pill to swallow—one any patient should be wary of taking from a Prescriber that has amassed $15 trillion in hyperventilating-inducing debt.

To believe the federal government will somehow become an efficiency expert when it comes to fixing health insurance is kind of like believing in the Tooth Fairy.  Of course, the government can restrict expenditures, micro-manage options, and perhaps regulate the kind of food available to people like Mayor Bloomberg has done under the auspices of making them healthier.  But is uber-control in health-care decisions what the American people bargained for?  The polls say no.

ACA is really just another line-in-the-sand-fight over federal government control. It’s not the biggest power-grab, but the most recent in a line that keeps moving toward a larger federal government and less personal freedom. The government can forcefully dip into your wallet and make you contribute to a retirement plan (it’s called social security). It can make you pay for health insurance when you retire (Medicare). And now it can penalize you if you do not carry health insurance (Obamacare). In light of the first two federal programs and their massive and unfunded future obligations, why should we expect the third to succeed?                          

Expect this ruling to provide campaign fodder for conservatives this election season.  As Roberts noted in his conclusion: “the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.”


This op-ed first appeared in the Kentucky New Era on July 11, 2012.