Choose free market over Obamacare

The upcoming primary election has stimulated much debate about the Idaho State Health Insurance Exchange. Proponents of the state exchange are fond of saying that 'Obamacare is the law of the land.' This begs the question: What does 'law of the land' mean? To answer that you need to understand the relationship between the citizen, the State government and the Federal government.

The U.S. Constitution contains a "Supremacy Clause" (Article 6, Clause 2) that establishes that federal law is the "supreme law of the land." This clause if often quoted by federal authorities to position themselves as superior in all matters. However the supremacy of federal law ONLY applies to laws passed in accordance with (pursuant to) constitutionally authorized powers.

The Federal government cannot legally compel the states, or you, to do anything unless the power is specifically granted in the Constitution. Furthermore, the federal government cannot force or coerce states into implementing or enforcing federal acts or regulations, even if they are constitutional. This principle is known as the anti-commandeering doctrine and rests on four Supreme Court cases dating back to 1842. According to the anti-commandeering doctrine:

"The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program...such commands are fundamentally incompatible with our constitutional system of dual sovereignty." This makes perfect sense when you appreciate that the federal government is a creation of the states and therefore inferior to them.

An example of the federal government's inability to command a state to enforce a federal regulatory program happened in 1974 when Congress passed the National Maximum Speed Law which prohibited speed limits higher than 55 mph. The Federal Government could not command states to adopt and enforce this new speed limit so instead they bribed the states into compliance with funds for highway maintenance.

In contrast, the Supreme Court determined that the Medicaid expansion portion of the Patient Protection and Affordable Care Act (PPACA), where states would lose all Medicaid monies if they did not expand coverage, was 'coercive' and therefore unconstitutional. The Federal Government could only make the additional funds contingent on the desired behavior. Blandishments and bribes are constitutionally acceptable forms of persuasion but coercion, the use of force or threats is not, at least for the relationship between the Federal Government and the states.

This reveals the schizophrenic nature of the 2011 SCOTUS PPACA decision which says the Federal Government cannot coerce a state into an act but, in the same decision, it says that the Federal Government can coerce an individual into an act through selective taxation.

The effect of the Obamacare "law of the land" is to create a Federal Health Care Exchange which is a national bureaucratic chimera; part insurance agent, part insurance underwriter and part welfare office. PPACA also sets in place a myriad of requirements on all insurance providers.

To the average citizen, the PPACA 'law of the land' mandates that we acquire insurance that meets the PPACA requirements or be penalized. You can (theoretically) do this through the national exchange, a state exchange (if available) through an independent insurance agent or through your employer.

The authors of Obamacare understood that a national exchange would be a massive undertaking to administer and to enforce. The problem is data, as there is a huge database behind the website to determine who is eligible and what kind of subsidy they will receive. Tax files, Medicaid rolls, immigration status, occupation status and much more on disparate state database systems must be merged into a single system. Eliminating the "pre-existing condition" aspect was a technical necessity as digital medical records were simply not available.

To help with the enormous data problem PPACA has a provision for the states to create their "own" exchange. While monetary grants were offered as blandishments to create the exchanges, the real impetus was generated by frightening the insurance companies into thinking they would be shut out of the federal exchange and their only salvation was a state exchange. The Idaho "Blues" spent millions on lobbyists and direct political contributions to insure their market share. For their effort, Blue Cross of Idaho's cash reserve has risen to more than $600 million dollars.

Proponents of the state exchange claimed that if Idaho did not set up a state exchange then the Federal Government would come into Idaho to setup and run a state exchange. This is untrue. According to the official Obamacare fact website: "The official health insurance marketplace for State's not running their own exchange is www. Healthcare.gov." There is no such thing as a federally run state exchange. There is only the federal exchange.

So if the federal exchange is available in all states, why did the PPACA authors want state exchanges? Access and enforcement; the states have direct access to their citizens and they have police powers that the federal government does not. When our legislators embraced Obamacare by agreeing to create a state exchange they elevated PPACA from the law of Washington DC to the law of Idaho.

What did we get for Idaho's complicity? Idaho's state exchange is simply a portal, a facade, which directs Idahoans to the federal exchange. The state exchange is nothing, because it never was the real goal. The real goal was for the federal government to penetrate Idaho's sovereignty, which is a necessary step in the stated larger objective of creating a socialized single payer national health care bureaucracy.

During the state exchange debate a committee of doctors, legislators, hospital administrators and insurance professionals drafted a report that detailed how a free market health care solution could save the average Idaho family $10,000 per year; allow them to accrue more than $160,000 in a health savings account and provide for the poor and indigent. This report was presented to various committees, legislatures and the governor but it did not have the support of the insurance lobby. Perhaps this was because some of the savings to Idaho families would have come out of their profits.

In the coming primary election, you will have a clear choice between candidates that will follow the path to socialized healthcare and those who would turn to the free market. Remember to vote on May 20.

Brent Regan of Coeur d'Alene is an inventor, businessman and member of the Idaho Freedom Foundation Board of Directors.