Overreach: Obamacare vs. the Constitution

By Charles Krauthammer

Give him points for cleverness. President Obama’s birth control “accommodation” was as politically successful as it was morally meaningless. It was nothing but an accounting trick that still forces Catholic (and other religious) institutions to provide medical insurance that guarantees free birth control, tubal ligation and morning-after abortifacients — all of which violate church doctrine on the sanctity of life.
The trick is that these birth control/abortion services will supposedly be provided independently and free of charge by the religious institution’s insurance company. But this changes none of the moral calculus. Holy Cross Hospital, for example, is still required by law to engage an insurance company that is required by law to provide these doctrinally proscribed services to all Holy Cross employees.

 

Nonetheless, the accounting device worked politically. It took only a handful of compliant Catholic groups — Obamacare cheerleaders dying to return to the fold — to hail the alleged compromise and hand Obama a major political victory.


Before, Obama’s coalition had been split. His birth control mandate was fiercely opposed by such stalwart friends as former Virginia governor Tim Kaine and pastor Rick Warren (Obama’s choice to give the invocation at his inauguration), who declared he would rather go to jail than abide by the regulation. After the “accommodation,” it was the (mostly) Catholic opposition that fractured. The mainstream media then bought the compromise as substantive, and the issue was defused.
A brilliant sleight of hand. But let’s for a moment accept the president on his own terms. Let’s accept his contention that this “accommodation” is a real shift of responsibility to the insurer. Has anyone considered the import of this new mandate? The president of the United States has just ordered private companies to give away for free a service that his own health and human services secretary has repeatedly called a major financial burden.
On what authority? Where does it say that the president can unilaterally order a private company to provide an allegedly free-standing service at no cost to certain select beneficiaries?
This is government by presidential fiat. In Venezuela, that’s done all the time. Perhaps we should call Obama’s “accommodation” Presidential Decree No. 1.
Consider the constitutional wreckage left by Obamacare:
First, the assault on the free exercise of religion. Only churches themselves are left alone. Beyond the churchyard gate, religious autonomy disappears. Every other religious institution must bow to the state because, by this administration’s regulatory definition, church schools, hospitals and charities are not “religious” and thus have no right to the free exercise of religion — no protection from being forced into doctrinal violations commanded by the state.
Second, the assault on free enterprise. To solve his own political problem, the president presumes to order a private company to enter into a contract for the provision of certain services — all of which must be without charge. And yet, this breathtaking arrogation of power is simply the logical extension of Washington’s takeover of the private system of medical care — a system Obama farcically pretends to be maintaining.
Under Obamacare, the state treats private insurers the way it does government-regulated monopolies and utilities. It determines everything of importance. Insurers, by definition, set premiums according to risk. Not anymore. The risk ratios (for age, gender, smoking, etc.) are decreed by Washington. This is nationalization in all but name. The insurer is turned into a middleman, subject to state control — and presidential whim.
Third, the assault on individual autonomy. Every citizen without insurance is ordered to buy it, again under penalty of law. This so-called individual mandate is now before the Supreme Court — because never before has the already hypertrophied Commerce Clause been used to compel a citizen to enter into a private contract with a private company by mere fact of his existence.
This constitutional trifecta — the state invading the autonomy of religious institutions, private companies and the individual citizen — should not surprise. It is what happens when the state takes over one-sixth of the economy.
In 2010, when all this lay hazily in the future, the sheer arrogance of Obamacare energized a popular resistance powerful enough to deliver an electoral shellacking to Obama. Yet two years later, as the consequences of that overreach materialize before our eyes, the issue is fading. This constitutes a huge failing of the opposition party whose responsibility it is to make the opposition argument.
Every presidential challenger says that he will repeal Obamacare on Day One. Well, yes. But is any of them making the case for why?