Next step for the 'Obamacare' individual mandate

Journalists overlooked a key footnote in Monday’s court ruling striking down the new health-care law as unconstitutional. US District Judge Roger Vinson may have intended his legal aside to be incidental. But Congress shouldn’t.

The footnote points out a logical consequence of the law’s mandate that requires individuals to buy private health insurance or face a hefty penalty. President Obama claims the mandate is legal under the Constitution’s Commerce Clause because the uninsured generally have poorer health, making the economy less productive.

Based on that reasoning, anyone in the future who doesn’t use mandated health insurance could also be forced into preventive medical care, Judge Vinson points out in the footnote. Congress could decide, he writes, to “regulate the ‘economic decisions’ not to go to the doctor for regular checkups and screenings to improve health and longevity, which, in turn, is intended and expected to increase economic productivity.”

His larger point is that Congress has no legal authority to control a person’s decisions not to buy a private service or good. A decision is not activity, and if government starts to regulate every person’s thought process as economic activity, then Congress could have unlimited powers. There would be no need for a power-limiting constitution.

It is “not hyperbolizing to suggest that Congress could do almost anything it wanted,” Judge Vinson wrote. “Surely this is not what the Founding Fathers could have intended.”

“There is quite literally no decision that, in the natural course of events, does not have an economic impact of some sort,” he wrote. “The decisions of whether and when (or not) to buy a house, a car, a television, a dinner, or even a morning cup of coffee also have a financial impact that – when aggregated with similar economic decisions – affect the price of that particular product or service and have a substantial effect on interstate commerce.”

Government could force people to buy GM cars to support the auto industry, or buy wheat products to support the wheat industry, he also pointed out.

But a more realistic scenario for the use of the mandate – assuming the Supreme Court upholds it – is that Congress will eventually want to further control the health decisions of Americans by coercing them to take part in various types of preventative medicine as prescribed by government.

This would violate the freedom to choose one’s own health care, whether it is traditional medicine or alternative means of healing, such as prayer. As Judge Vinson said of the mandate, this is a “bridge too far.”

Even Mr. Obama at one time, during his 2008 presidential campaign, argued against the mandate: “If a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house.”

Congress should anticipate the Supreme Court upholding Judge Vinson’s reasoning and begin now to recraft the 2010 Patient Protection and Affordable Care Act (“Obamacare”). There are other ways to provide universal health care than distorting the meaning of the Commerce Clause into Orwellian control of a person’s thinking or decision not to participate in government-run health care.

The mandate was only one tool to help pay for the uninsured to be insured. Congress has other ways to accomplish the same purpose.

The House, in this new Congress, has already voted to repeal the law. Some Democrats in the Senate are eyeing reforms, too. “There’s other ways we can get people into the [insurance] pool – I hope – other than a mandate, and we need to look at that,” Sen. Claire McCaskill (D) of Missouri told MSNBC before this decision.

The Supreme Court will likely take up Judge Vinson’s ruling and other federal court decisions on the mandate this fall. Congress doesn’t need to wait.