Last week, the U.S. House of Representatives crafted a partisan compromise bill that endorsed and reinforced the Affordable Care Act, or Obamacare. This was done notwithstanding claims to the contrary by President Donald Trump and the House Republican leadership, who want us to believe that this bill, if it becomes law, will effectively repeal and replace Obamacare.
Obamacare is a stool with four problematic legs. The constitutional leg is the premise that the federal government has the lawful power to regulate the delivery of health care. The legal leg is the premise that the federal government is obliged to provide health insurance to everyone in America. The economic leg commands that everyone in the U.S. purchase and maintain health insurance. And the Orwellian leg says that every physician in the U.S. shall retain all patient records digitally and that federal bureaucrats shall have access to all those records.
None of that is changed in the House- passed bill. Here is the back story.
The original Obamacare proposal had the taxpayers foot everyone's medical bills through a series of taxes, regulations and controls. That is the so-called single-payer system that former President Barack Obama dreamed of. It would have been much like the systems in place today in Great Britain, Canada and Australia, where one waits for months to see government-employed physicians who are stingy with government-owned medications and mired in red tape and long lines over government- financed medical procedures.
Even many of the Democrats who controlled both houses of Congress during Obama's first two years in office were unable to accept that idea. In its place, they produced a 2,700-page piece of legislation, which candidate Trump vowed to dismantle — saying he favored a market-based, state-regulated system with no federal involvement, the kind we knew in the pre-Obamacare era.
None of those goals is reached by the House-passed bill.
Obamacare's imposition of the federal government between all patients and their physicians was a radical departure from the traditional delivery of medical services in America. This was done with utter disregard to the constitutional constraints imposed upon Congress — whereby the regulation of health, safety and welfare was retained by the states — and by radically expanding federal power derived from the Constitution.
Congress' favorite constitutional hook upon which to hang its regulatory hat has been the commerce clause. After more than a half-century of letting Congress characterize nearly any human activity as commerce — and thus regulable federally — the Supreme Court in 1995 required that only those behaviors that constitute or support a truly commercial transaction can be reached by the feds. The professions — medicine, law, architecture, engineering, university teaching, for example — though one pays for them, had never been considered to be commercial in the sense that they could be federally regulable, until Obamacare came along.
None of this is changed in the House-passed bill.
Under Obamacare, the federal government took over the regulation of health care from the states with a one-size-fits-all metric administered by faceless bureaucrats. I say faceless because when you go to your doctor today, she or he may need the approval of a federal bureaucrat to perform a procedure for you — a bureaucrat the doctor will never see, only read via a laptop.
None of this is changed in the House- passed bill.
Obamacare also established the duty of the federal government to provide health insurance for every American. No law before Obamacare ever attempted that ambitious unconstitutional improbability. When the Supreme Court accepted a constitutional challenge to the Social Security system, it ruled that the system consisted of taxing and spending — but created no legally binding obligation on the part of the federal government to spend in the future. Stated differently, under Obamacare, the feds can take your money that they have promised you they will spend on your health care and spend it as they see fit.
None of this is changed in the House-passed bill.
The individual mandate in Obamacare requires that every person in America have health insurance. It also requires employers of more than 50 people to provide health insurance for all employees who work for those employers for more than 30 hours a week. The failure to provide or maintain a health insurance policy by employers or individuals triggers the imposition of a tax by the IRS.
Under the House-passed bill, your employer no longer has to provide you with health insurance, but you must still maintain your own health insurance. Instead of paying the IRS if you let your coverage lapse, you have to pay a $3,000 annual penalty to your insurance carrier — once you do sign up — for every year you lacked coverage.
What kind of a repeal is that?
And the faceless bureaucrats still reign. The House-passed bill permits the feds to decide whether your doctor is treating you in a manner consistent with the availability of government resources and to administer Obamacare's thousands of minute politically driven regulations.
By definition, Obamacare will soon be a failure because it causes the expenditure of more money than it takes in. Eventually, it will have no cash. But Barack Obama may have subtly succeeded in changing the landscape of thinking about federal involvement in health care. For those who believe that the Constitution means what it says, it was disheartening to see President Trump and so many Republicans in Congress who once defended the free market now assume that all Americans want the feds to care for them and that somehow the Constitution permits it.
Thomas Jefferson and Alexander Hamilton rarely agreed on principles of government. But they did agree that when the public treasury becomes a public trough and the people recognize that, the people will send to the federal government only those who will bring home the biggest piece of the federal pie. The House-passed bill was produced by federal government representatives who manifest that.
Judge Andrew P. Napolitano was the youngest life-tenured Superior Court judge in the history of New Jersey. He is Fox News’ senior judicial analyst. Napolitano has been published in The New York Times, The Wall Street Journal, and numerous other publications. He is the author of the best-seller, "Lies the Government Told You: Myth, Power, and Deception in American History." For more of Judge Napolitano's reports, Go Here Now.