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Bob McMillanAn Opinion

By Bob McMillan
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Can Congress Mandate Health Insurance?

The healthcare debate has faded from the front pages because of so many other issues getting the attention of our media. But, about one month ago, the Atlanta based 11th U.S. Circuit Court of Appeals ruled that the healthcare law passed in 2010 (“Obamacare”) exceeds the powers of Congress under the commerce clause of our Constitution. The court heard arguments from some 26 states that had joined together in opposing the mandate to purchase healthcare insurance.

The decision, in part, stated that the Congress cannot, “mandate that individuals enter into contracts with private insurance companies” for healthcare insurance. The 11th Circuit Court of Appeals then went on to really blast Obamacare by stating that the law was “an unbounded assertion of Congressional authority.” It should be noted that the 6th Circuit Court of Appeals, based in Cincinnati, upheld the law in another opinion. There is no doubt that the Supreme Court will have to make the final ruling with regard to mandating that individuals purchase healthcare insurance. That will probably come about in around one year.

Now, take a look with me at two other mandated laws – workers compensation insurance and auto liability insurance. While both mandate coverage, only the states have enacted such laws. There has never been a federal mandate.

First, let me examine workers compensation. The concept was first enacted by Germany in the late 1880s. In the United States, Wisconsin was the first state to mandate workers compensation insurance for employers. Every state followed that lead with Mississippi finally enacting a law in 1948. As you probably know, workers compensation insurance provides coverage for employees hurt on the job.

With regard to auto liability insurance, policies were actually being sold as early as 1908 when automobiles started to appear on our roads the . The first state to pass mandatory liability laws was Massachusetts in 1927. Soon every state followed suit with no action by the Congress.

To me, it is interesting to note that two major issues in our country were addressed by state action without any federal intervention.

Could it be that the Congress saw the constitutional issues back in the last century but overlooked the commerce clause today? On the positive side, the mandate to purchase healthcare insurance does not take effect until 2014. There is little doubt that the Supreme Court of the United States will decide the Obamacare case before that time. In the meantime, the entire healthcare industry is on hold. Combined with uncertainties in Medicare, the sooner the Supreme Court can make a decision with regard to Obamacare – the better.

By the way, the Obama administration has granted some one thousand two hundred waivers for companies and unions who now will not have to implement the new healthcare law. I wonder why and how come?

Robert McMillan Website: www.bobmcmillan.net