Commentary: On health care law, Congress deserves a do-over

The Kansas City StarApril 14, 2012 

Last week, President Barack Obama laid down a marker to the Supreme Court: Invalidate the health care law, and the court itself will become an issue in the election. He warned the justices against taking the “unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

It’s impossible to make any sense of this. Overturning a statute is “unprecedented”? Obama supposedly taught constitutional law, yet there he was, speaking as if he’d never heard of judicial review — practiced by American courts for more than two centuries — while pretending that a bill that barely escaped a Senate filibuster and passed the House by a mere seven votes had drawn a “strong” majority.

The next day, he acknowledged the power of the court to invalidate a statute, but in an odd way the whole episode seemed to fit with his tooth-fairy energy policy, with all its non-existent green jobs and now-bankrupt solar companies. The man seems to waft in and out of reality at will.

In the last couple of weeks the tone from the left has become desperate. From the beginning, supporters of Obamacare assumed they had the law on their side. Don’t worry, the personal mandate is well within the power of Congress — proper regulation of interstate commerce and all that.

But the Supreme Court didn’t get the memo and the stern treatment of the government’s case came as a shock. CNN legal analyst Jeffrey Toobin — once serenely confident that the law would win approval — declared that the three days of oral arguments before the court were “a disaster for the Obama administration.”

By the time it was over, it was clear that the mandate was in deep trouble and possibly the entire law. Some of the justices wondered how the rest of the law could stand if the mandate was thrown out because so many other provisions depended on forcing consumers to participate in the insurance market.

Justice Anthony Kennedy said that if the court threw out the mandate but left the rest, the result would be “a new regime that Congress did not provide for, did not consider.” That, he said, could be a “more extreme exercise of judicial power” than throwing out the whole mess.

No one knows how the court will rule. The justices, we are reminded, don’t always vote as they question. But it would be best if Congress could be given a clean slate. We’d have a chance for a system that dispenses with Obamacare’s authoritarian approach, which boils down to “you get what we say you get.”

The pollster Scott Rasmussen notes that 76 percent think they should be allowed to choose between high-cost insurance plans with low deductibles, and low-cost plans with high deductibles. They want a choice between costly plans that cover everything, and affordable plans that cover less.

None of those choices is available under Obamacare.

An even higher proportion — 81 percent — say that if a company offers health insurance, workers should be able to “cash out” that benefit and use the money to buy a policy on their own — and keep the difference if it costs less.

Consider the effect of such a step. Workers who chose economical policies would get a raise. Insurance companies would have to scramble to provide more choices and better value, or lose business in the suddenly broadened individual market. Why can’t people have this option? Why can’t we have an approach that encourages real competition?

Obamacare seems a dead end, entitlement liberalism’s “bridge too far” — a flawed attempt to impose central planning on an enormously complicated economic sector. If it’s not invalidated by the court or repealed by Congress, the law will collapse of its own weight, brought down by its exorbitant cost and persistent unpopularity. Here’s hoping the court lets Congress have a do-over.

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