Health plan just doesn't fit for Idaho

The common belief is that the entirety of the Affordable Care Act (ObamaCare) is now the "law of the land" and must be implemented by the States under penalty of losing existing Medicaid funding. This is not the case.

The Act is exceedingly complex, creating several issues for American citizens. I address here only Congressional intent, federal Medicaid funding, and the issue of a State vs. Federal health insurance exchange.

It is widely known, and acknowledged by members of Congress, that no Congressman read the Act prior to its having been voted on and passed. The stated intention in passing the law was to find out what was in it.

In his decision, Supreme Court Chief Justice Roberts constantly referred to the intent of Congress when addressing the issues challenged by Idaho and the other States: the individual mandate (requiring every U.S. citizen to purchase health insurance), the expansion of Medicaid to cover able bodied individuals, and the threat set out by the Act of withholding existing Medicaid funding if the States failed to go along.

Regarding the individual mandate, Justice Roberts masterfully and in the Orwellian tradition, explained that the mandate is a penalty (not a tax) for purposes of judicial review and a tax (not a penalty) for purposes of assuring constitutionality. As we see from a recent announcement by Health and Human Services, this penalty/tax is insufficient and new penalties, fees, and taxes are most certainly necessary to support funding of this new centerpiece of health insurance central planning.

Roberts continued in the age old legal tradition of deciding the outcome first, then constructing his reasoning to support that outcome. Though building castles in the air, Roberts left in place the cornerstone of America's federalism.

Regarding Medicaid, Roberts opinion addressed Congress' supposed attempt to pressure the States to accept Obamacare. He struck down the Act's threat to terminate existing Medicaid funding, because "the legislation runs counter to this Nation's system of federalism."

Federalism, by the way, is the sharing of power between the national and State governments. There is no provision in the federalist system for dictatorial power by the Federal government and nor can the Feds withdraw existing Medicaid funding as punishment for Idaho's not creating a State exchange.

The opinion is also clear that States cannot be forced into expanding Medicaid if they choose not to do so. It follows logically that States need not create a State Obamacare exchange if they so choose.

The Act sets out that States shall create an 'Insurance Exchange' and that if a State does not do so, the Federal government may do so. This is the origination of the purported choice presented by the proponents of the Act. We are asked: Do we want a State exchange where we have local control, or do we want the Feds to create an exchange in Idaho where we will have no control?

This 'either/or' choice is a false dichotomy. If Idaho sets up a Health Care Exchange, it is by definition ObamaCare and Idaho by doing so will wholly submit to Federal regulation. Tens of thousands of pages of Federal regulations are now being issued by Federal agencies (including the IRS) to regulate the so called State exchanges. Common sense raises this question: If the Federal government issues the rules and regulations, where, exactly, is Idaho's control?

The answer is found in Justice Roberts' opinion. The control is age old and simple: Just say no!

Roberts went on to acknowledge that it's perfectly appropriate for the Federal government to bribe States, directing States to go along with Federal policy in exchange for Federal dollars. He wrote: ". . . Congress may attach appropriate conditions to Federal . . . programs to preserve its control over the use of Federal funds."

But States don't have to take the money. States need not agree to carry out the Federal policy by creating an exchange. Roberts acknowledges that States are separate from the Federal authorities. States are independent, he says! "In the typical case we look to the States to defend their prerogatives by adopting 'the simple expedient of not yielding' to federal [enticements] when they do not want to embrace the Federal policies as their own. The States are separate and independent sovereigns. Sometimes they have to act like it."

There it is, in plain language. Idaho has the option to say 'no' to ObamaCare. Idaho is a separate and independent sovereign. Idaho must now have the guts to act like it! Proponents of ObamaCare may argue that States are sovereign only when the Federal court says so. As the Court was addressing the Medicaid threat when speaking of the sovereignty issue, they may argue that States need not yield to Federal agreements but must indeed yield to the Federal health care mandate.

But what is a sovereign? Websters: "Supreme in rank, power, or authority; independent of all others." Is Idaho sovereign or not? Legislators had better think hard before answering.

State Legislators working to implement ObamaCare should realize that they will be held responsible for the calamity this legislation creates. Roberts makes his point and then quotes from a previous case: "Permitting the Federal Government to force the States to implement a Federal program would threaten the political accountability key to our federal system. 'Where the Federal Government directs the States to regulate, it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.'" [Emphasis mine.]

Idaho must do nothing to enable this draconian Act. Idaho must stand, whether alone or with the other States, to reject this federal socialist legislation. Common sense solutions need not be dictated from Washington D.C.

Both proponents and opponents of the Act have reason to disagree with parts of Roberts' decision, and with good reason: Roberts pretends the Act's "penalty" is a tax and the same "tax" a penalty. He also pretends that the language in the Act reflects Congress' intent, when common sense assures that not knowing what was in it, Congress could not intend anything but to find out!

The supposed "law of the land" is a contrivance. Roberts' opinion resorts to Orwellian doublespeak to assure the Act's constitutionality. His reasoning is based upon a supposed Congressional intent. When leaders rely on pretense and supposition, it's no wonder that we're confused.

Vito Barbieri is an attorney and is presently serving as District 2 Idaho State Representative. He lives in Dalton Gardens with his wife and three children.