CENTRAL VIEW for Monday, March 29, 2010

ObamaCare: Do we really need it?

Confused about the ObamaCare legislation? You are not alone. Right before the vote, House Speaker, Nancy Pelosi, told her Democrat Caucus, “We must pass this legislation to know what is in it.”

By now, the experts have analyzed ObamaCare’s over 2,000 pages. Some members of Congress have even read it. Unfortunately, ObamaCare does nothing to rein in the millionaire tort lawyers like John Edwards who drive up the cost of health care by causing doctors to cover their derrieres with often unneeded tests and procedures. ObamaCare does nothing to allow insurance companies to lower their premiums through free-market competition across state boundaries.

Rather than discuss the eye-glazing funding figures proving health care costs will go up and health-care services will go down, and will become less available to seniors, let’s consider whether ObamaCare is constitutional or not, and then, how we might find a way forward that doesn’t bankrupt the nation.

ObamaCare will try to use the Commerce Clause of the 14th Amendment to order what Vice President Biden calls “ordinary Americans” to purchase a government-approved health insurance policy; or, be among the “class” of people who are exempted from ObamaCare. That class includes: the president, vice-president, cabinet officers, senior White House officials, members of Congress and, no surprise, even the congressional staffers who wrote the ObamaCare legislation. Do you suppose those insiders know something we "ordinary Americans" don’t know?

Prior to 1942, the Commerce Clause was used to prevent the individual states from interfering with free commerce between the states, such as taxing each other’s products as they crossed state lines. The framers of the Commerce Clause never intended for it to be used to tell the citizens within the states that, unless they purchase government-approved health insurance, they will be punished by the police power of the federal government.

But, in 1942, the U.S. Supreme Court held, in Wickard vs. Filburn, that any business practices affecting prices could be regulated by the federal government. Recall, 1942 was in the middle of World War II when consumer goods were rationed and blackmarketeers were driving up prices. Wichard vs. Filburn turned the Commerce Clause upside down. Instead of being used to remove impediments to free trade, the Commerce Clause was used to restrict free trade -- especially by unscrupulous and unpatriotic blackmarketeers.

Just as the war ended, the U.S. Supreme Court ruled the Commerce Clause allowed the federal government to regulate insurance companies. In response, the insurance industry lobbied for the McCarran-Ferguson Act of 1945 which exempted the insurance business from most federal regulation.

But just as federal regulation was an impediment to free-market competition between insurance companies, state regulation has had the same negative effect with regard to the pricing of health insurance across state lines.

Today, each state has its own “boutique” ideas about what must be covered in the health insurance policies issued within its borders. The insurance companies, to stay in business, must charge premiums to cover the features which must be included. For example, some states mandate that all health insurance policies must include: breast implants, botox, tummy tucks, face lifts, sex-change operations, medicine for erectile dysfunction, and condoms.

But wait. What if all you want covered are dread diseases such as cancer, Alzheimer’s and heart disease? Sorry, you have to pay premiums which are set at a level to cover the entire enchilada of diseases and medical services decreed by your particular state. McCarran-Ferguson keeps you from shopping nation-wide for an insurance company which could design a health insurance policy tailored to what you want and/or can afford.

So, if the real objective of ObamaCare is to make health insurance affordable and available to all (even illegal aliens) we don’t need ObamaCare. All we really need are repeal of McCarran-Ferguson and tort reform. But then, what if the actual objective of ObamaCare is something else entirely?

Syndicated columnist, William Hamilton, studied at Harvard’s JFK School of Government. Dr. Hamilton is a former assistant professor of political science and history at Nebraska Wesleyan University.

©2010 William Hamilton.

Dr. Hamilton can be contacted at:

Email: william@central-view.com