This column by ACRU Senior Legal Analyst Ken Klukowski was published March 23, 2014 on Breitbart.com.
Today marks four years since President Barack Obama signed Obamacare into law. Although the impact on healthcare has been extensive, what he’s done since that day implicates every area of government and our national life. It’s time to shift our focus from rhetoric to results, and ask Ronald Reagan’s immortal question: Are you better off today than you were four years ago? And is the Constitution?
Obama signed the Affordable Care Act (ACA) into law on Mar. 23, 2010. It is 2,700 pages long, authorizes tens of thousands of pages worth of regulations that carry the force of law (with countless more coming), and effectuates a massive overhaul of one sixth of the U.S. economy. Its twin goals–as found in Section 1501 of the statute–are to ensure “near-universal” healthcare coverage and to lower costs. The president has repeatedly claimed it would reduce average family costs by $2,500 per year.
First, the facts today. As the first person actually to live in the White House, John Adams, once said, “Facts are stubborn things.” And they tell a story that’s markedly different from the story we get from the current occupant of the White House.
Most of Obamacare’s major provisions went into effect on Jan. 1, 2014, so we’re only now starting to see the wide-ranging impact of this statute. First, the costs. When the ACA was enacted, healthcare was just over $2.6 trillion per year. Now it’s over $2.8 trillion, an increase of four percent. Even with U.S. population growth of nine million in the past two years, that’s an increase of $500 to $8,900 per person–which comes to over $22,000 for an average family. That’s an increase, not a $2,500 decrease.
Then there is the number of uninsured. There are perhaps 35 million uninsured Americans. (Some say 50 million; they are rounding up the number 47 million, which includes at least twelve million illegal aliens. When specifically referring to the number of uninsured citizens, it’s 35 million.) Studies show approximately nine million of those have always been eligible for Medicaid and have never signed up, and most of the remaining millions either lack insurance for 90 days or less as they transition to a new job or new plan, or make over $80,000 a year and choose not to get insurance. The number of long-term uninsured who cannot obtain insurance is five to ten million.
There are conflicting reports on the enrollment numbers under Obamacare. It seems millions of sign-ups have been for Medicaid, and the number includes those who normally sign up at the same rate as before the ACA. Neither the White House nor the Department of Health and Human Services have issued reliable numbers about how many are signing up because of Obamacare. Also, since Medicaid is a government healthcare program paid for by all taxpayers, those enrollees draw resources out of the national healthcare system; they don’t reflect anyone who’s actually paying money into the system.
Further, we haven’t been given reliable numbers on (1) how many people have purchased health insurance or (2) how many of those people have paid their premiums. We have been told that (3) only about 25 percent of those people are younger people, which is an enormous problem, because even the ACA’s supporters admit that 40 percent or so of those who join must be young and healthy in order for the system to have enough money to stay afloat. And even that 40 percent figure is wildly optimistic.
The lack of hard numbers suggests that the emerging facts are very troublesome for the administration. We have no choice but to wait a few more months until those numbers are confirmed before reaching conclusions.
One thing that is clear is that many of the newer policies have much higher deductibles–such as $5,000 for an individual or $12,000 for a family–before enrollees start receiving major benefits. Those policies are no better than catastrophic coverage; the average family cannot afford that kind of massive out-of-pocket cost, nor will they consume that much in healthcare in any given year. And their monthly premiums are increasing at an alarming rate. Calling those people “insured” to subtract them from the 35 million is grossly misleading–a politician’s spin with semantic head-fakes, not any meaningful benefit to the American people.
That’s just in the first three months of the ACA’s being fully in effect. Then the White House used a reporting gimmick so that the new, higher premiums for many people will not be announced until this November–after the midterm elections. Expect massive sticker shock, with numbers far higher than are being admitted now.
The net result should be unavoidable. Costs will increase, and consequently the number of people without meaningful insurance will grow. The ACA will fail in both of its stated goals (near-universal coverage and decreased costs).
Then we have the implementation. The president has unilaterally refused to implement over 30 of the provisions in the ACA. Obamacare has 450 sections, some of which give discretion to the executive branch in terms of how to implement. But the provisions Obama has refused to put into effect–such as the employer mandate for one year, or the IRS corporate reporting system for one year, or suspending provisions on essential benefits to be included in every insurance policy–are all mandatory provisions of the law. Only Congress can make those changes. If the president does it, he’s breaking the law.
This is where the conversation shifts from healthcare to the Constitution. Ignoring provisions of federal law has become an alarming trend of this president. He has likewise refused to enforce certain provisions of federal laws regarding immigration, drugs, campaign finance, and racial discrimination, when they conflict with his political agenda. He refused to defend the constitutionality of the Defense of Marriage Act in court for the same reason.
And he violated the Recess Appointments Clause of the Constitution by declaring the U.S. Senate to be in recess when it was actually in session, filling several top government posts with nominees that the Senate refused to confirm. (Breitbart News reported on this case when it was argued before the Supreme Court on Jan. 13, 2014. The Court seems poised to strike down these appointments and rebuke the president. A decision is expected by June.)
As I explain with my coauthor in a scholarly legal work that will be in print this April in the Harvard Journal of Law & Public Policy, the Take Care Clause was specifically inserted into Article II of the Constitution to guarantee that no president could ever ignore the words of the Constitution or of federal law. Breitbart News has previously reported on why Obama’s actions are unconstitutional, and how the media is covering for him.
Speaking about Obamacare at CPAC earlier this month, national conservative leader Ken Blackwell posited that the root problem with the ACA is that it embodies a belief in the role of government vis–vis the American people that conflicts with the vision of the Founding Fathers, reflected both in the Declaration of Independence and then later in the Constitution.
Our national philosophy “celebrates the primacy of the individual and the supremacy of God,” in contrast to the Far Left’s ideology, which asserts the “primacy of the collective good” and the “supremacy of the central government,” Blackwell told the assembled crowd. “Our fundamental rights are gifts from God, not grants from government,” Blackwell declared.
Obamacare went before the Supreme Court in 2012. Part of it was invalidated for violating the Constitution’s Spending Clause. The ACA’s individual mandate was sustained by a 5-4 vote, in which Chief Justice Roberts wrote that it was unconstitutional as written (as a regulation of interstate commerce), but that he would vote to sustain it as an optional tax: you can either buy insurance, or pay a tax. Matt Drudge was completely accurate in calling this a “Liberty Tax” that Americans are paying right now.
Looking at the big picture, all of this goes to American exceptionalism. What Blackwell described is part of what makes America an exceptional nation. American exceptionalism also arises from our Constitution’s system of the division of power between federal and state governments, the separation of powers between Congress, the president, and the courts, and the checks and balances that each branch has against the others.
Obama has thrown into disarray these structural protections, which exist to safeguard the liberty of every American in every generation regardless of his political beliefs or personal circumstances. It also impacts our long-term prosperity, as a central aspect of why America is a great place to do business is that we are a nation under the rule of law. Obama’s illegal actions have undermined the stability of the rule of law, which will negatively impact our economy.
America is at a fork in the road, and must make a decision as to the kind of nation we want to be, and what relationship we want between each individual and the federal government. So on Obamacare’s fourth anniversary, there’s a question worth asking, and publicly debating through the 2014 midterms and into the 2016 presidential election. Whether talking about healthcare or the nation as a whole: Are you and the Constitution better off than you were four years ago?