Constitutionality of Healthcare Law Is Still in Question

About Nina Owcharenko:

Nina Owcharenko is the director of the Heritage Foundation's Center for Health Policy Studies.

Even after the Supreme Court's decision, President Barack Obama's major policy achievement—Obamacare—remains as unworkable, unaffordable, and unconstitutional as ever.

Unworkable. Overhauling one sixth of the nation's economy in one legislative dictate is a recipe for disaster. Every glitch in the law and every ill-advised regulation creates an implementation nightmare, requiring more bureaucratic or political interventions. The Supreme Court's decision on the individual mandate revives questions over Internal Revenue Service enforcement of the law. Not only is the IRS expected to enforce the employer mandate, it must also make a complex tax calculation including household incomes for each employee, and collect the individual mandate tax (based on each month a person is uninsured or otherwise fails to satisfy the HHS guidelines for coverage). At a time when lawmakers on both sides are advocating for making the tax code simpler, these provisions only make the code more complicated.

[See a collection of political cartoons on healthcare.]

Unaffordable. The Congressional Budget Office has already had to adjust its cost estimates of the law. The Supreme Court's decision on Medicaid will certainly force yet another cost revision. As some states may opt out of the Medicaid expansion, millions of Americans will be shifted onto the even more costly federal subsidy scheme. On top of this, more and more employers are predicting that it will be more cost-efficient for them to just drop their existing employee coverage and pay the penalty. These two developments are certain to raise the cost of Obamacare far beyond its proponents' original promise.

Unconstitutional. While the Supreme Court twisted the law to save the individual mandate, the Medicaid expansion was found unconstitutional, setting off a domino effect that will lead to higher costs and fewer insured. Then there are the 23 pending cases representing 56 plaintiffs relating to the law's infringement on religious liberty vis a vis the requirement that insuring employers—regardless of any religious objections—provide employees with free coverage for contraception, abortion-related drugs, and sterilization procedures. Thus, leaving aside the court's dubious decision, serious constitutional infirmities remain.

This is just the beginning. As more of the law comes into effect, the more precise the implementation must be and the more disruptive change is likely. The president has even acknowledged the law will probably have to be reopened, if he's re-elected. Instead of trying to fix the growing mess of this law, Congress would do better to just repeal it. Then lawmakers can get to work on the sensible healthcare reforms that Americans need.

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Barack Obama,

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Supreme Court,

health care