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Obamacare: Impact on the Family
The recent health care debate has shown that many in Congress do not always vote in favor of what is best for their constituents. Families, specifically, will suffer many negative repercussions from the passage of the health care bill.
Heritage’s Chuck Donovan explains the immense impact that the Patient Protection and Affordable Care Act (PPACA) will have on families by decreasing family choice, undermining the role of parents, penalizing marriage, and undercutting freedom of conscience.
More Families Covered but Less Family Choice: “Families gained nothing from PPACA that will permit them to purchase better or cheaper plans across state lines. The new law also does nothing to increase the variety of insurance available in the market, which could include family-friendly options like health plans managed by professional associations, unions, and faith-based groups. Nor will families be able to purchase health plans that exclude coverage for services to which they ethically object or which they do not need.”
Undermining the Role of Parents: “PPACA expands several funding streams that undermine parental responsibility and authority to direct the upbringing of their children. The law lavishes federal dollars on programs like school-based health centers and a new ‘Personal Responsibility Education’ (PRE) program that deny parents knowledge of sensitive services their children receive in federally funded projects.”
Penalizing Marriage: “The marriage penalty imposed by the law could exceed $10,000 per year for certain couples. This is because the affordability tax credit phases out rapidly as income rises. Not only does this health insurance marriage penalty dissuade a younger, low-income couple from getting married—which is one of the most beneficial life decisions they can make for themselves and for their children—but it also provides older couples, some of the hardest hit by this law, with an incentive to obtain a ‘divorce of convenience.’”
Undercutting Freedom of Conscience: “As health care reform proceeded, strong majorities of Americans supported protecting provider and insurer rights of conscience as well as limiting the use of tax funds for abortion. In March 2009, 87 percent of respondents to a national poll supported ensuring ‘that health care professionals in America are not forced to participate in procedures and practices to which they have moral objections.’ A January 2010 Quinnipiac Survey found that 67 percent of Americans oppose public funding of abortion. On March 24, President Obama signed an executive order that attempts to apply conscience protections and abortion funding limits to the full text of PPACA. Regardless of the order’s intent, judicial rulings for the past 35 years have made it clear that public funding of elective abortions in federal programs cannot be barred without the kind of direct ban that Congress failed to include in many parts of PPACA.”
The health care bill will have a major negative impact on many American families. To learn more about the impact of the health care bill, visit Side Effects.
Tags: family choice, freedom of conscience, ObamaCare, parents, Patient Protection and Affordable Care Act, penalizing marriage, Personal Responsibility Education program
When discussing the “constitutionality” of a governmental action, one must distinguish between three senses of “constitutionality”: (1) What the Constitution says and means; (2) what the Supreme Court has said and meant, and (3) whether there are five votes on the Supreme Court to uphold or invalidate the action. Because of my well-known view that the text of the Constitution has a meaning that is independent of the opinions of the Supreme Court–a meaning that must remain the same until properly changed–as well as my exchanges with Orin on this blog, readers may be forgiven if they think my constitutional objections to the individual health insurance mandate are based on the original meaning of the Constitution–or what Orin calls the Constitution as it “ought to be.” But I have been very clear in my publications and media statements that I am not offering an originalist objection to the individual health insurance mandate. Under the original meaning of the Constitution, for example, Congress would have no power to regulate the health insurance business since insurance contracts–like the practice of medicine–are not “commerce,” which is why both activities have traditionally been regulated by the states. But I have not made anything like this objection; and neither have the Attorneys General in their lawsuit.
Instead, I have objected that the mandate that individuals purchase health insurance from a private company is unconstitutional under existing Supreme Court doctrine–the second of the three senses of unconstitutionality. And, in response to confident predictions that the Supreme Court will uphold the mandate, I have suggested that they may be less inclined to do so if the bill continues to be unpopular, one or both houses of Congress flip parties, a serious repeal effort is blocked by a presidential veto or filibuster in the Senate, and the “benefits” promised by the bill have yet to be implemented. Everyone should know I think this last type of analysis should have nothing to do with whether a measure is or is not “constitutional,” but I do not deny these factors are relevant to whether the Supreme Court will uphold or invalidate an act of Congress. My point is that those who confidently predict that the Supreme Court will uphold this bill are not taking these sorts of factors adequately into account.
Part of my constitutional assessment (in the second sense) involves the unprecedented nature of this claim of power by Congress. (The other part is analysis of what the Supreme Court has said about the Commerce power since the New Deal.) Having made this observation back in December in my co-authored paper for the Heritage Foundation, my confidence in its accuracy has been increased by two developments. The first is the change of subject to the Tax power of Congress. Think about it. If the claim that this legislation was as clearly authorized by post-New Deal Commerce Clause doctrine as so many law professors seem to assume, then why almost immediately change the subject to the power of Congress to tax? This switch telegraphs a fundamental weakness of the Commerce Clause claim.
The second development is the inability of supporters of the bill to generate any examples of when the Commerce Clause power has been exercised in the past to mandate individuals engage in economic activity by entering a contract with a private company. True the early Militia Act mandated militia members provide their own private arms, but this was not an exercise of the Commerce Power. And we have been treated to the discovery of an early statute taxing sailors and spending the money on hospitals for their care. Of course, this is very much akin to how Medicare works (which is clearly “constitutional” in the second and third senses), and the regulation of navigation is squarely within the original meaning of the Commerce Clause (as I have shown in Restoring the Lost Constitution: The Presumption of Liberty), so this provision seems “constitutional” in the first sense as well.
The only examples currently bandied by law professors concern tax credits for certain activities–like buying a home–within the income tax code. How to distinguish between a mandate coupled with a fine or penalty and a general income tax that allows for credits for certain activity is an interesting conceptual question. But our intuitions run strongly against this equivalence. Indeed, the President publicly denied this was a tax–which would break his no taxes on persons making less than $200K promise–and the bill itself refers to the provision as a “requirement” backed by a “penalty.” No, I am not claiming that the Court is bound by how the bill is worded, but this wording–and the President’s defense of the mandate–reflects an underlying reality, as well as a deep intuition that a monetary fine for violating a mandate is not the same as the failure to receive a tax credit. Indeed, the express rationale for the measure in the bill itself rests on the Commerce not the Tax power:
The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased. (Page 125 of Senate bill)
Indeed the bill provides for refundable “tax credits” for qualified insurance plans in different section than the “individual responsibility” section containing the mandate.
Consider this: If Congress had ever done anything like this before, we would all be able to think of countless things we are mandated to do by the federal government upon pain of a monetary penalty enforced by the IRS. Yet, apart from registering for the draft, I cannot think of much of anything the federal government mandates of people simply because they are alive, much less mandate pursuant to its Commerce Clause power. Of course there are a host of federal regulations that tell you how you must engage in particular economic activities should you choose to do so. Laws against discriminating with respect to employment or public accommodations come immediately to mind, but there are lots of others as well.
But regulating HOW one engages in economic activity (or prohibiting an activity) and mandating THAT one engage in economic activity are not the same thing. It is the latter that is unprecedented. To uphold such a claim of power, the Supreme Court would have to go beyond its existing precedents–and well beyond them. Of course, the smart money says the justices will do just that–but this is a reference to the third sense of constitutionality described above: counting to 5 votes.
In light of all this, I am genuinely intrigued by this comment Orin posted on Prawfsblawg (in which he is partially defending me from a criticism there):
I should add that I don’t buy Randy’s argument: He is trying to take one issue (factually, whether the federal government has done this precise thing before) and treat it as if it answered a quite different issue (legally, the doctrine of stare decisis).
This comment raises two questions of great interest to me.
First, what are the Commerce Clause precedents that Orin thinks cover the personal health insurance mandate and why? I think I am pretty familiar with the post-New Deal Commerce Clause cases on which my own analysis relies, so I would be very interested to learn which of these cases cover this type of mandate. Second, what theory of stare decisis is Orin employing here? Of course all law profs know that any two situations can be “factually” distinguished if only by the time and place. So a simple difference in facts does not necessarily take a case out of a “precedent.” But I do not believe we are talking about this type of factual difference. We are talking about the difference between telling people engaged in economic behavior HOW they must act, and telling people who are doing nothing at all THAT they must engage in economic behavior. This “factual” difference seems to be really germane–as germane as the traditional and intuitive (though sometimes problematic) act-omission distinction in private law.
So, putting the Tax power issue to one side, I am very curious to know on what basis Orin thinks this personal mandate is governed by Supreme Court Commerce Clause precedent. I ask this in all sincerity, as I would greatly benefit from Orin’s considered explanation of how he thinks the doctrine of stare decisis applies here and decides this issue. Of course, Orin is under no obligation to post any reply to this query. However, since he seems to have a view on this, I am most curious as to what it may be.
One final thought. If, for some reason, we are not suppose to carefully consider what exactly the Supreme Court HAS said about the Commerce Clause power in its decisions–along with what it has NOT said in those decisions–and we are also not supposed to take seriously the independent meaning of the text of the Constitution itself, then ALL “constitutionality” means is a prediction of what the justices will do (sense three). And this would seem to be the epitome of the Rule of Men, as opposed to the Rule of Law. It is certainly nothing that any nominee to the Supreme Court could claim and still be confirmed.
UPDATE: Thanks to Orin for his clarification. I take it from his response that he is not claiming that the personal insurance mandate is authorized by previous Supreme Court Commerce Clause cases. No apology is needed. I have been using “unprecedented” in both senses. But the fact this sort of thing has never been done before does figure into there being no judicial precedent for it — provided that it differs from what has been done before in a legally relevant way. That regulating HOW one engages in economic activity differs from mandating THAT you engage in economic activity is relevantly different is intuitively obvious, and I believe will be obvious to at least some judges. It takes a pretty counter-intuitive comparison with tax credits against a general tax — or a highly counter-intuitive denial of the act-omission distinction — to equate a mandate with a regulation or prohibition. While these counterintuitive moves can be understood by law professors and intellectual types, I think they are not an easy sell for a variety of reasons — including the fact that they would so greatly expand federal power beyond where it has ever been extended before. When this practical implication is combined with what the Supreme Court actually said in NLRB, Lopez, Morrison & Raich, I think the argument that a personal mandate is unconstitutional (in the second sense) is highly plausible, and the breezy assertion by some professors and pundits that the mandate is constitutional under existing doctrine is not supported by a close reading of these opinions–or so I claimed in my Heritage paper last December. If, that is, the Supreme Court follows its reasoning in previous cases when this issue comes before it, which returns us to issue 3.
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Dustin Petersen
April 18, 2010 at 5:58 pm
Oh and Chris, there are pictures of CHeney and Rumsfeld shaking the hand of Saddam Hussein and his cronies.
Have fun choking because that rather shoots down any sense of superiority you get claiming making up stupid claims about Obama and Chavez.
April 18, 2010 at 5:57 pm
Chris wrote:
Bush was a humble person, a faithful husband, a dignified person in general.
He was arrogant and egotistical.
And as for “faithful husband” that has what to do with being President? No matter what you say he was one of our worst Presidents of all time.
Bush authorized a fools war in Iraq that did no small part in nearly bankrupting this country. He attacked Iraq despite them having nothing to do with 9-11. He let Osama bin Laden get away and he did little to deal with Al Qaeda. He authorized torture. He sacrificed much of our moral standing with the rest of the world. And domestically he continously screwed over the middle class and the poor while kissing the asses of the rich.
And you want to claim that Kennedy’s alleged affairs makes him a worse person then Bush? My..you do have a messed up sense of morality. Let me know when you want to bother to have an actual sense of morality. Because thinking that a person who cheated on his wife is worse morally then a person who ordered torture is just this side of being morally depraved.
April 18, 2010 at 3:02 pm
Historians are just liberal elitist pricks who look back at history and form an opinion on it. They don’t look at history any more objectively than they look at the present day. “Historian” is just a title given to someone with a hobby in reading history books. And those historians are just using W. as a scapegoat; there was that one American president (I forget his name) who lasted one month in the presidency. He got nothing done in that one month, needless to say, so you would think any objective “historian” would call him the worst. But the “historians” obviously based their conclusion on Bush being the worse simply because they didn’t like him.
“A loophole or gap in a law is common, and not a sign of incompetence.” Oh, okay. I’d have to argue that incompetence is common, then. (Well, that goes without saying when it’s in regard to Congress.)
“If insurance companies deprive coverage,…there will be litigation.” They wouldn’t be breaking any laws by denying coverage to anyone, because the law doesn’t say they can’t. I’m not saying they should deny coverage, of course, but looking at it objectively, they have that right. But I see you’ve jumped on the insurance-companies-are-evil bandwagon, even though they make only 3% profit.
“Unless Sauron is more effective in mustering Republicans against an amendment than he was the first time around. It would be a heckuva fight, with pro-life Republicans publicly repudiating their stands in order to force children to suffer and die.” It wasn’t just Republicans who were against the health-care takeover; Republicans were, Democrats were, and Independents were. And come on, guy, that’s a tad dramatic, “The Republicans want to force children to suffer and die!” Oh, okay.
“…The provision Sen. Feinstein had proposed to fix the problem was stopped by Republican.” Republicans against have not once tried to stop reform, and the Democrats who supported the health-care takeover have not once tried to initiate reform. The new bill does nothing to reform anything. It doesn’t increase competition because it still prevents you from purchasing insurance across state lines. There’s no malpractice-suit reform in there. Republicans offered numerous solutions while the Democrats literally locked themselves up behind closed doors to prevent the Republicans from having any part of the legislation. So, yes, the Republicans should be proud that they tried to prevent socialism and offered up true reform.
“It will be interesting to see how recalcitrant industries fight improved health care. The important first step in reining in costs was to expand coverage.” Coverage was expanded to some 10 or 15 million people at the expense of freedom and at the expense of reducing the quality of the health care to everybody else. Yay.
“Occasional wins by evil is not evidence that the war has been lost.” Good, this gives me some hope.
April 18, 2010 at 2:50 pm
You’ve never met Bush, and you don’t know much about him, do you.
April 18, 2010 at 2:47 pm
Good friends with Chavez? They’ve met once. Obama said Venezuela needs to get with the program, stand up for rule of law in the Americas. Chavez gave Obama a book.
You imagine a lot that didn’t happen and isn’t realistic. Obama’s no closer to Chavez than Dick Cheney is, just wiser in handling the nut.
Who cares what Castro says in an interview? Castro didn’t claim Obama’s anything other than a U.S. flag-waving patriot. I can’t find anything that suggests Castro approves of Obama’s policies, especially since Obama turned up the diplomatic heat on Chavez. What are you talking about?
April 18, 2010 at 2:21 pm
And apparently I suck at HTML.
April 18, 2010 at 2:18 pm
Nick Kelsier:
Yes, because W. cheated on his wife with countless women and thought he could do whatever he wanted just because he was the president. Bush was a humble person, a faithful husband, a dignified person in general.
Yes, because Saddam Hussein wasn’t a brutal dictator who killed hundreds and hundreds of thousands of his own people. The world is safer because that madman is dead. Because BUSH got rid of him. Hussein DID have WMDs (he used them against his own people, duh). The only thing Bush made a mistake at was warning Iraq that we were coming (the UN approved of the invasion, by the way, as did Congress). Because we warned Hussein (Saddam, not Obama), he was able to get the WMD over the border to Syria. We should have just gone in there with no warning. And we need to do the same to Iran, but Obama’s a weak rookie who likes to appease and pal around with dictators (he’s good friends with Chavez, and even Castro–former communist dictator of Cuba–approves of the way Obama is running America. Communists don’t approve of democracy, yet this communist approves of Obama’s job. Interesting, no?
Yeah, poor terrorists, being “tortured,” boo-hoo. We made blood-thirsty psychopaths THINK they were drowning, oh man, so harsh, so, so evil! Poor terrorists!
Now, I can’t WAIT for you to tell me how Bush “crashed the economy.” I can’t wait. Please tell me, seriously. Don’t hold back. Tell me what you think.
You:
You mean like Obama is doing now? On both counts? Kinda like that? Why are liberals so anti-rich? People get rich because they earned it. They get rich because of hard work and ambition, most of the time. Other times they inherit it, sure, but the majority of the time, they earned it. Jealous? Then try harder like they did. Don’t steal from them to pay for your unambitious, whiny self.
April 18, 2010 at 11:24 am
Ed writes:
It would be a heckuva fight, with pro-life Republicans publicly repudiating their stands in order to force children to suffer and die.
Really think they’re going to have much of a problem doing that, Ed? It’s not like they’ve shown much concern for the health and life of children after they’ve been born so far….
Claiming the Republicans are “pro-life” is like claiming that David Duke is pro-black.
April 18, 2010 at 10:13 am
Health care legislation as Waterloo – Oliphant (and Benson …
April 18, 2010 at 1:24 am
Not liberals based on polls who said Bush was worst ever: Historians, based on their comparison with every other president. (It’s a Rolling Stone story, and their website is down this weekend for dramatic revisions.)
A loophole or gap in a law is common, and not a sign of incompetence. It’s quite inventive of the insurance companies to claim to have found a way to deprive sick and injured children of coverage. I’m sure you read the article carefully. If insurance companies deprive coverage, contrary to the language of the conference report, there will be litigation. If by some fluke the insurance companies win that litigation, proving that Congress’s intent was not carried out in the language they passed, there will be amendments, unless Sauron is more effective in mustering Republicans against an amendment than he was the first time around. It would be a heckuva fight, with pro-life Republicans publicly repudiating their stands in order to force children to suffer and die.
The new law has protections of consumers built in, to resolve and head off some of the problems you fear, according to the NYT article (by my old friend Robert Pear, who is among the best in covering these issues):
Will insurance premiums rise? We were sure of it before, at about a 15% per year clip. Does the LA Times article say they will rise faster than that? It notes that the provision Sen. Feinstein had proposed to fix the problem was stopped by Republican’s obstreperousness (“Congressional rules” is what the article said). Republicans won’t be proud to trumpet this one, either, I’ll wager. We needed a good gross of Righty-Be-Gone to fix that problem (Why didn’t you note that it was the right that cause this problem? Are you ashamed of it, too?)
It will be interesting to see how recalcitrant industries fight improved health care. The important first step in reining in costs was to expand coverage. A public option to compete with insurance companies might have provided a good, market mechanism to fight undue increases, but since the Republicans have not allowed that yet, we’ll probably have to go the regulatory route.
Ironic that Republicans are driving increased regulation of private industry, no? Unprincipaled, unholy opposition to good government will create such problems, and every Republican should hang his or her head in shame.
My God is not incompetent. Evil is not benign, though, and must be fought at every turn, at every moment. Occasional wins by evil is not evidence that the war has been lost.
WordPress and HTML: Yeah, HTML is accepted at almost all WordPress powered blogs, and all WordPress hosted blogs that I have found. Good luck with your blog.
April 18, 2010 at 12:23 am
Anything Kennedy did as far as being a “disgusting human being” pales to W, Chris.
Least Kennedy didnt start a fools war in a country that did nothing to deserve invaded. At least Kennedy didn’t authorize torture. And at least Kennedy didn’t crash the economy, screw the middle class and suck the dicks of the rich.
April 17, 2010 at 10:42 pm
I agree with you about Truman. He’s just about the only Democrat I like. He made unpopular decisions that saved millions of lives (and not only the lives of Americans). And aside from being a disgusting human being, Kennedy was not too bad a president. Remember when you liberals pointed to Bush’s approval ratings (and still do) and said, “See? He’s the worst president in history”? Yeah.
Now, I’m glad you brought up this “no pre-existing conditions” thing. It was reported in the New York Times, one of Obama’s many personal fluffers, that while ObamaCare DOES prevent children from being DROPPED from coverage because of a discovered pre-existing condition, it does NOT prevent insurance companies from DENYING coverage to children with pre-existing conditions. That’s what happens when, in a mad rush to advance pure Marxism, you push through legislation before even taking time to proofread it, let alone read it at all. Remember what Pelosi said? “We have to pass the bill so you can see what’s in it.”
And just for kicks, from the LA Times, one of the most liberal, in-the-can-for-Obama publications around, we find this:
“Public outrage over double-digit rate hikes for health insurance may have helped push President Obama’s healthcare overhaul across the finish line, but the new law does NOT give regulators the power to block similar increases in the future.
“And now, with some major companies already moving to boost premiums and others poised to follow suit, millions of Americans may feel an unexpected jolt in the pocketbook.
“Although Democrats promised greater consumer protection, the overhaul does NOT give the federal government broad regulatory power to prevent increases.
“‘It is a very big loophole in health reform,’ Sen. Dianne Feinstein (D-Calif.) said. Feinstein and Rep. Jan Schakowsky (D-Ill.) are pushing legislation to expand federal and state authority to prevent insurance companies from boosting rates excessively.”
Your gods are completely incompetent.
Also, from one decent human being to another, I just made my WordPress blog last night and am still unsure of a bunch of things, one of which is whether or not I can use basic HTML in comments like this. Do you happen to know? I didn’t want to try it and then have my comment end up looking like crap because HTML is NOT accepted. There’s no preview button, so I figured I shouldn’t risk it.
April 17, 2010 at 10:07 pm
Like Truman, sometimes you pay a public poll price for doing the right thing. Still have to do the right thing.
Wait until the Republicans start campaigning on repeal of the “no pre-existing condition” clause. I can hardly wait.
April 17, 2010 at 9:37 pm
Meanwhile, his poll numbers keep falling….