Commentary: Oh, 'C,' what we have done
This article first appeared in the St. Louis Beacon, Aug. 12, 2010 - On a brutally hot Tuesday in early August, about 22.9 percent of Missouri's registered voters went to the polls to deliver their verdict on ObamaCare. For the Democrats on Capitol Hill who'd struggled so valiantly to reform health care, the results were less than encouraging.
More than 71 percent of the electorate endorsed Proposition C, which seeks to exempt Missourians from the pending federal requirement to purchase health insurance or pay an annual penalty for the failure to do so. Like CC Rider, the unfaithful lover in the venerable blues song, Prop C figures to leave heartbreak and confusion in its wake.
The dwindling minority of voters who identify themselves as "progressives" offered a variety of explanations for the rout at the polls, none of which did much to ameliorate the outcome.
Admittedly, the proposition was superficially confusing in that a "yes" vote on C equated to a "no" vote on ObamaCare. But the ballot language was clear, so voters who bothered to read it should not have been misled.
It is also true that about 65 percent of voters in the primary election chose Republican ballots, indicating that the sample was not representative of the state as a whole. That phenomenon, however, is best explained as a reflection of the relative enthusiasm of the two sides of the debate -- more bad news for the Dems.
Others have pointed out that the vote last week was a classic self-selecting sample in that voters who were upset by the prospect of health-care reform were more likely to turn out than were those who took a more sanguine view of the issue. Again true, but all elections are self-selecting as people who care are more inclined to participate in them than those who don't. The simple fact is that 938,782 people voted, and an overwhelming majority of them rejected the president's plan.
The brightest take ObamaCare supporters can offer is that the vote was meaningless because state statutes cannot countermand federal law due to the Supremacy Clause of the Constitution. Though that principle is valid, there are a couple of problems with its application to the present case. One is political; the other, legal.
To the extent that the referendum was an accurate gauge of public sentiment, just whom do you think the voters are going to elect next November to make new federal laws? Health-care reform proponents seem to be an endangered species.
And while the Constitution provides that federal laws trump ones passed by individual states, there's a compelling case to be made that ObamaCare, itself, is unconstitutional.
Under the current public-private compromise approach to universal care, mandated coverage is absolutely vital. Without it, people could simply wait until they got sick to buy insurance because they can't be denied coverage due to pre-existing conditions. How long could an auto insurance company stay afloat by selling retroactive policies to people who have already wrecked their cars?
The problem is that everybody has to buy insurance for the plan to work but there's no legal way to make them do so. Writing in the Wall Street Journal, J. Kenneth Blackwell and Kenneth A. Kiukowski delineate the conundrum rather succinctly:
Per the 10th Amendment, the federal government can only exercise powers that are specifically enumerated to it. The government's authority to levy taxes was originally restricted to two forms of indirect and one form of direct taxation.
Duties on imported goods -- or tariffs -- were specified, as were excise taxes -- levies on the privilege of doing something like selling alcohol or practicing law. These are indirect taxes because they can be passed along to consumers.
The only form of direct federal taxation originally provided for was a capitation, or head, tax. This tax could not be shifted to someone else, and the Constitution demanded that it be apportioned, which meant that every citizen of a given state had to pay the exact same amount. Residents of Missouri, for instance, may be required to pay $300 each while residents of Illinois may be charged $500, but in all instances, members of a particular state had to be taxed equally.
In 1895, after Congress attempted to impose a permanent national income tax, the Supreme Court struck down the measure on the grounds that it was a direct tax that was not apportioned because individual state residents would be required to pay different amounts. The 16th Amendment was subsequently ratified in 1913 to provide us all with the blessings of the graduated income tax.
Although President Barack Obama has said many times that health reform would not entail a "tax increase," the Justice Department recently announced that it would defend the health-insurance mandate in law suits brought by attorneys general from various states as a legitimate exercise of Congress' authority to "lay and collect taxes." Unfortunately for the DOJ, taxing people for not buying health insurance does not fall within the realm of duty, excise, capitation or income taxation; and these are the only taxes the Feds can legally extract.
The penalty is exactly what its name would suggest -- a penalty. But Congress has no power to impose penalties beyond its jurisdiction. The Constitution provides for regulation of interstate commerce, but never has that authority been expanded to force private citizens to purchase a product from private firms under penalty of law. Congress can regulate commerce, but it cannot compel it.
Some contend that the health insurance mandate is analogous to state laws that require motorists to carry auto insurance. From a constitutional perspective that argument fails on several fronts:
- The 10th Amendment does not restrict the powers of state governments; it protects them.
- Only citizens who own vehicles and drive them on public roadways are affected -- you can always opt out by walking or taking the bus.
- Most states allow for an alternative to buying insurance. In Missouri, for instance, you can post a bond with the Department of Revenue in lieu of insurance coverage.
- You are only required to carry liability insurance. You have to be able to pay for the damage you do to others but there is no legal obligation to insure yourself.
In an effort to protect the profits of private insurance companies while providing universal coverage, Congress has created a complicated and wildly unpopular monstrosity that is predicated upon a mandate that is probably illegal.
You might think that a nation that has travelled to the moon would be able to figure out some practical way for its infirm to visit doctors. You would be wrong. All in all, it's enough to make you sick.
M.W.Guzy is a retired St. Louis cop who currently works for the city Sheriff's Department. His column appears weekly in the Beacon.