Friday, December 17, 2010

Obamacare Unconstitutional?

I'm a Republican sympathetic to the argument that the individual mandate in Obamacare is unconstitutional. I have difficulty seeing how this is unconstitutional, though, under existing jurisprudence.

The test of whether Congress has acted within its power to regulate commerce -- when the target is not a commercial activity -- is whether the target of the regulation is an essential component to a comprehensive regulatory scheme. The mandate is clearly essential to Obama's scheme of redistributing wealth from the healthy/young to the unhealthy/old.

By precluding insurers from charging actuarially fair rates to those with "preexisting conditions," insurance companies could not stay in the business of providing coverage to the unhealthy. To make up for it, there must be profitability elsewhere. The young and healthy must inevitably be charged higher rates in order to compensate for the inability to charge the unhealthy and old actuarially appropriate rates. But the young/healthy wouldn't voluntarily buy health insurance at the actuarially unfair rates that they'll be charged as a result of the ACA. Therefore, Obama must compel them to buy health insurance in order for his redistributive plan from the young to the old to work.

I think this is an awful scheme and it's egregiously dishonest for the Democrats not to be forthright about what they're actually doing. But I don't think it's beyond their power unfortunately.

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