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“The Supreme Court and a Plan for Replacing Obamacare, Whatever the Court Decides” By Clark S. Judge

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The weekly column from Clark Judge:

The Supreme Court and a Plan for Replacing Obamacare, Whatever the Court Decides
By Clark S. Judge: managing director, White House Writers Group, Inc.; chairman, Pacific Research Institute

Today the Supreme Court begins hearing three days of arguments on the constitutionality of Obamacare, officially known as the Patient Protection and Affordable Care Act. For the rest of us, the arguments have been going nonstop since the program was signed into law in March 2010.
In a particularly succinct posting this morning ( ), Nick Gillespie and Meredith Bragg of Reason magazine lay out “3 Reasons to End Obamacare Before it Begins”, that is before the bulk of its provisions go into effect. Their list: 1) It represents the end of limited government; 2) Its price tag is already ballooning; 3) It won’t make us healthier.
The Court has jurisdiction over only the first of these points today. But the point is profound. In the law’s name, the administration has already claimed the unprecedented power to require that a church (the Catholic Church in this case) act in contraction to its own teachings. Also in the laws name, the Department of Health and Human Services is preparing to mandate that private citizens purchase specific (the law delegates to HHS the power to determine the most minute details) private services. The administration appears to believe that Obamacare trumps the First Amendment and that the Commerce Clause (where the administration locates the act’s constitutional home) trumps all protections of individual rights. To a layman the idea that a shred of constitutional limits on government would survive the Court giving such an act a clean bill of health looks implausible, to put it mildly.
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And for what benefits are we surrendering these rights? Less expensive healthcare? For both citizens and the government, Obamacare has already bent the healthcare cost curve up, not down as the president promised.
Pacific Research Institute president Sally Pipes notes in her new book, The Pipes Plan: The Top Ten Ways to Dismantle and Replace Obamacare ( ) that as early as December 2009, the Congressional Budget Office warned that the program would drive up family insurance premiums by $2,100 a year. In March 2011, the CBO estimated that between 2012 and 2021, the act would cost the U.S. Government $1.13 trillion. Other estimates put the price tag in the decade beginning 2014, when most of the cost drivers kick in, over $2 trillion.
Pipes adds that by forcing 20 million new recipients into Medicare the program takes the government’s biggest debt problem (unfunded liabilities) and makes it immeasurably worse. Last year Medicare’s trustees put Medicare’s unfunded liability at $25 trillion, a figure the program’s chief actuary immediately disavowed as not representing “a reasonable expectation of actual program expenses,” which he said would come in vastly higher.
Meanwhile, as columnist Newsweek and Washington Post columnist Robert Samuelson detail at this morning ( no studies of actual people before and after receiving government health insurance can find any significant impact of government insurance on actual health.
For example, after the Massachusetts program on which Obamacare is modeled was implemented only “about 1.4 percent of the state’s adult population moved into the ‘very good’ or ‘excellent’ health categories.”
As Samuelson adds: “Another study by economist Daniel Polsky of the University of Pennsylvania examined what happened to uninsured Americans who went on Medicare at age 65. Polsky found ‘no significant health effect for the uninsured relative to the insured upon reaching Medicare eligibility.'”
The lack of any correlation between health insurance and actual health is among the dirty little secret as of the entire Obamacare project. Going back decades (the Reason post above links to a famous RAND Corporation 1993 study), no rigorous study has been able to determine any impact on actual health of any government-sponsored health insurance program.
As I say, most of these considerations are outside the Court’s jurisdiction. It is a fair guess that the justices will strike down the highly problematic individual mandate, but leave the rest of the law in place. What then?
In the GOP primaries, the candidates have been pressed to pledge they would work to repeal Obamacare. That is only half of the necessary question. The other half is, with what would you replace it?
The best answer so far comes from Sally Pipes’ book.
Pipes’ list includes: 1) allow high deductible plans and deregulate health savings accounts, 2) allow consumers to purchase insurance across state lines, 3) eliminate mandates and give individuals the same tax breaks companies get for buying health insurance, 4) transform Medicare and Medicaid into voucher programs and 5) make a serious federal investment in state pools to cover the uninsurable, the one group whose needs Obamacare somehow failed to address.
In other words, for the most part, as critical as this week’s arguments are, our fate remains not in the Court but in ourselves.


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