by Richard J. Grant
The key to understanding the Patient Protection and Affordable Care Act (PPACA) is not whether the provision formerly known as the “individual mandate” is now a penalty or a tax but what burden it imposes. The act’s remaining political support depends on a failure to recognize the incidence and magnitude of the total burden imposed on people by the whole act.
From the beginning, support for federal government intrusion into medical care depended on the belief that we could get something for nothing. The reigning mythology is that “health care is different” and that a government bureaucracy can and must protect us from that multitude of professionals and “evil corporations” that offer medical-related products and services. Not understood is that the same freedom to trade and enter into contracts that has yielded fine service and rapid innovation in other sectors would work no less well for health care.
When Supreme Court Chief Justice John Roberts transformed the individual mandate penalty into a tax, he did eliminate one minor burden. Those who choose not to comply with the specifications of the mandate will no longer be lawbreakers: they merely give up their exemption from the tax. But the cost of this small gain (and elimination of the Medicaid mandate, which would have extorted billions from the states and their taxpayers) was that the PPACA, with its other burdens, would stand.
Although it appeared that Roberts had placed limits on the federal government’s Commerce Clause regulatory powers, he allowed the government to achieve much the same effect through taxation. University of Chicago law professor Richard Epstein pointed out that the Supreme Court had long understood that “taxation and regulation are close substitutes, so a limitation on one power matters little if the other power is still available.” He insisted that Roberts was wrong and that “the power to regulate commerce and the power to tax should not be separated.”
This lost opportunity for constitutional fidelity will bear on our future just as the burdens of defective past decisions bear upon us now. Epstein would draw our attention to the constitutional language that gives Congress the power to “lay and collect Taxes” only in order “to pay the Debts and provide for the common Defence and general Welfare of the United States.” Adherence to the original meaning would rule out taxation for the purpose of redistributing income among citizens as is now mandated under the PPACA. Such a reading would also have protected us from most of the other federal transfer-payment programs that now threaten our solvency.
The PPACA is expected to add several billion dollars per year to our debt problem. Management of the “insurance exchanges” alone will require over $60 billion per year in subsidies. The act imposes a cluster of new taxes, but the biggest burden will be borne by those who must comply with all the new regulatory provisions. That includes patients and customers, whether they know it or not.
Passage of the act in 2010 put the Department of Health and Human Services, the Internal Revenue Service, and a multitude of other agencies to work writing volumes of new regulations. News reports claim that at least 13,000 pages of regulations have already been drafted.
Who could believe that this imminent flood of regulatory pollution will contribute to the “general Welfare”? For those who believe that our medical system is a mess, the PPACA is an example of why.
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