The road ahead on Obamacare repeal

There’s a case to be made that President Obama’s reform package is not just bad policy, it’s also of questionable constitutionality.

As of this writing, 30 legal challenges to the health law have been launched involving states. Most notably, the U.S. Court of Appeals for the 11th Circuit in Atlanta struck down the individual-mandate provision in the law, ruling in favor of a plaintiff group. This ruling marks the sternest judicial rebuke of Obamacare to date. The plaintiffs have petitioned the Supreme Court to consider the case.

However, the U.S. Court of Appeals for the Fourth Circuit in Virginia ruled against the plaintiffs in the cases brought by the state of Virginia and Liberty University, saying that they lacked standing to sue. Ultimately, the Supreme Court will have the last word.

In late September 2011, the Obama administration asked the U.S. Supreme Court to review the 11th Circuit’s ruling. The state of Virginia, Liberty University, and the Thomas More Law Center in Michigan have also asked the Supreme Court to hear their petitions.

If the Supremes let the law stand, then the federal government’s power will effectively know no bounds.

Obamacare’s legal requirement that all Americans purchase insurance or face a fine — the “individual mandate” — stretches the Commerce Clause to regulate even economic inactivity.

That’s an unprecedented move. Congress has employed its powers of taxation to finance the likes of Social Security and Medicare. But it has never forced a person to turn his hard-earned lucre over to a private third party — or else face a government-enforced financial penalty.

There is no limit to the Commerce Clause if the federal government can attribute the consequences of its own conduct to citizens who have engaged in no commercial transactions.

This book has set forth a road map that lawmakers can follow to repeal and replace Obamacare. But even after it is repealed and replaced, there will remain work to be done.

Paramount among the changes that policymakers should implement next is medical malpractice reform.

The malpractice system currently rewards lawyers at the expense of patients and doctors.

Our litigious medical liability framework encourages physicians to practice “defensive medicine,” whereby they order excessive screenings and tests to protect themselves against lawsuits. Defensive medicine is estimated to increase America’s annual medical costs by 10 percent.

It doesn’t have to be that way. Texas provides the proof. In 2003, the Lone Star State instituted a series of commonsense changes to its medical liability laws, including capping noneconomic damages at $250,000 and punitive damages at $500,000.

Between 2003 and 2007, the Texas Medical Board licensed about 2,500 more new physicians than it did during the previous four years. And one of Texas’ big medical malpractice insurers dropped its premiums by 35 percent.

Texas has continued to lead the nation on liability reform. Gov. Rick Perry signed a “loser pays” measure in May 2011 that will limit frivolous lawsuits by requiring plaintiffs to pay the fees of their opponents if they lose their cases.

As this book was going to press, the Supreme Court announced that it would review the 11th Circuit decision invalidating the individual mandate. A final decision by the court is expected in late June 2012.

As the law slowly comes into effect, the damage it does to medical innovation, doctor-patient autonomy, the economy, public insurance programs, taxpayers and the chronically ill is becoming ever clearer.

In order for a full repeal and replacement to be possible, the Republicans need to win the presidency in November 2012, keep the House and take the Senate. Then early in 2013 repeal legislation can be introduced, and there will be no threat of a veto by former President Obama.

Lawmakers must disassemble this law and replace it with market oriented reforms. It’s eminently possible. And nothing less than America’s future health and wealth depend on it.

Nothing contained in this blog is to be construed as necessarily reflecting the views of the Pacific Research Institute or as an attempt to thwart or aid the passage of any legislation.

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