Court handed us a big mess in its decision on health care

Paul Jenkins

Whatever the Supreme Court thought it was doing when it upheld the expensive and incomprehensible Patient Protection and Affordable Care Act, it derailed, at least for the immediate future, affordable, efficient health care in this nation.

Instead, Americans will get more of the same. More expense. More waste. More inefficiency. More intrusion. More broccoli. Add to that: Obamacare will siphon $500 billion from an already gasping Medicare program.

Instead of clearing the decks for a workable health care system, the court has forced us back from better, affordable health care for everyone.

At the heart of the legal challenge to Obamacare was whether Congress could use the Commerce Clause to mandate that you buy health insurance by 2014 -- and penalize you if you refused.

Through the years, the court's view of congressional power under the Commerce Clause has ballooned and contracted, defining and redefining relationships between the federal government and the states -- and even the branches of government. Adopted after the Revolution, the clause was to end interstate rivalries, but has been stretched and twisted to regulate everything from crop allotments to guns near schools.

Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito flatly rejected as an overreach the notion of using the Commerce Clause to justify the mandate. Roberts then joined the court's four liberal justices, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan to rule the mandate could survive under congressional taxing authority.

Roberts likened the penalty to a tax and said someone who does not want health insurance has a "lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice." Not a penalty; a tax. Under this bizarre approach, if you were to defy a government order to buy broccoli for better health, the government could tax you. (Yes, the opinion mentioned broccoli 10 or 12 times and it has been the go-to veggie throughout the case.)

Not all the justices agreed. "(T)o say that the individual mandate merely imposes a tax is not to interpret the statute but to rewrite it," Justices Scalia, Thomas, Alito and Kennedy wrote in their dissent. Roberts' calling the mandate a tax "carries verbal wizardry too far, deep into the forbidden land of the sophists," they said.

Mind you, "penalty" was mentioned in the law; "tax" purposely was not. President Barack Obama argued in 2009 that the mandate -- designed to pick your pocket to underwrite coverage for 30 million Americans without insurance -- was no tax. He opposed the mandate itself in 2008, when he ran against Hillary Clinton. "If a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house," he said.

Without the "tax" -- without putting a gun to America's head -- Obamacare would be just 900 pages of gobbledygook unread even by most who voted for it. It represents little more than crass collusion between government and the $2.6 trillion-a-year health care industry.

It boasts thousands of pages of new regulatory laws and regulations; 159 agencies, programs and bureaucracies; and, a long, growing list of exemptions from its provisions. The law is expected to hamstring one-sixth of the economy. Sadly, its true effect likely will be to dump even more people into taxpayer-subsidized coverage as employers bail out.

Obamacare is a repugnant monument to the leftist notion that government is good and more government is better -- and a trillion-dollar gift to the health care industry, which anted up more than $150 million in advertising to ram Obamacare through Congress.

While the law's architect, MIT economist Jonathan Gruber, once jawboned anyone who would listen that the law would cut health insurance costs, even he is changing his tune. Now, it will increase them, he says, especially for young, healthy Americans, Forbes reports.

What happens next? The federal government stinks at efficiently running huge programs with millions of moving parts. The law's future, thankfully, is debatable. Presidential hopeful Mitt Romney pledges he will begin working to bury it the very day he takes office, if elected. Republicans in Congress are itching to help.

Perhaps then we could move on to things that might work -- competition, liability reform, insurance sales across state lines and less government intrusion that would reduce the costs of prescription drugs and service delivery.

Enjoy your broccoli.

Paul Jenkins is editor of the

Paul Jenkins