Affordable Care Act - The Good, The Bad, and The Revolutionary

Last night I attended an informational meeting at which national health care law expert Tim Jost explained some features of the Affordable Care Act and answered audience questions. Jost is a law professor at my alma mater, Washington & Lee University School of Law, and he has been actively involved in the creation of the ACA. In other words, he knows his stuff.

I found the session informative and helpful, although I still don't pretend to have an understanding of all of the workings of the behemoth legislation. While I don't typically like to discuss issues that I don't thoroughly understand, I am resigned to the fact that holding myself to this principle, in the case of this particular issue, would mean forever dismissing the opportunity of commenting.

And so, with that disclaimer, here are some of my thoughts on the beleaguered legislation.

First, the GOOD:

-It is good, noble, and right that we, as a society, demonstrate a concern for the poor, sick, and elderly among us. Therefore, it is also fitting for us to explore ways of ensuring that those who cannot care for themselves receive the tangible help that they need.

-From what I learned last night, there are elements of the law that make good sense. For instance, it seems wise to offer tax credits for those who are struggling financially, yet take responsibility for their future health care needs by purchasing health insurance. Giving them a tax break to help them pay for their premiums is likely to inure to everyone's benefit by allowing them to obtain preventive care and reducing the incidence of "uncompensated care" (which increases the costs of health care for everyone).

-Building upon the second point, it seems appropriate for the ACA to forbid some of the sharp practices by wealthy insurance companies that devastate individuals and cost taxpayers dearly. As I learned last night, the ACA precludes insurers from dropping an insured's coverage once he or she becomes seriously ill. Apparently companies will sometimes go back and identify a misstatement in the application or loophole in the contract once the insured starts to incur serious expenses. This is unjust and should be stopped.

But there is plenty of BAD in the Affordable Care Act as well:

-The law is over 900 pages. Need I say more? We are an overregulated people already, and legislation that approaches the length of War and Peace should raise serious concerns in anyone who has a genuine desire to know, understand, and abide by the law. In the middle of a hectic day, I am sometimes seized by the fear that some government bureaucrat will come knocking on my door to inform me that in the process of carrying on some industrious activity in good faith, I have violated the fine print of an obscure regulation. Am I neurotic? Maybe. But such a scenario is increasingly possible in America's contemporary legal climate. It shouldn't be. (If you think I am exaggerating here, ask me about the lady in Arizona who was ticketed for giving away bottled water).

-The law is hard on big businesses that have great influence on our economy. Would it be nice for these businesses to provide health insurance benefits for their employees? Of course. But penalizing them with crippling taxes for not doing so will just provide them with incentives to locate elsewhere, taking their jobs and other types of tax revenues to countries that will appreciate them. Right?

-If the federal government can force me, under threat of financial penalty (call it a "tax" if you must), to buy a product like health insurance, what can't it force me to do? This is my most fundamental concern with the law. The federal government was designed to be one of specific, enumerated powers ONLY. The ACA's passage, and the Supreme Court's upholding of it, are evidence that the prevailing interpretation of those specific powers stretches them beyond recognition.

-The law tramples rights of conscience, in all sorts of ways. Business owners have taken to the courts--with mixed results so far--to protest requirements that they provide coverage for contraception, sterilization and abortion services that violate their consciences or religious beliefs. Now some are also saying that taxpayer dollars will be used to provide abortion coverage in the new exchanges, in contravention of the federal Hyde Amendment.

So are you ready for the REVOLUTIONARY?:

While I think most of us will concede that we must collectively care for the needy, many of us are convinced that federal mandates are not the best way to do that. I believe that we must admit that we have long permitted the federal government to overstep its bounds and take steps to reform it to the blueprint set out in the Constitution. We must insist that the enumerated powers vested in the federal government--its ONLY powers--be interpreted in accordance with the Founders' intentions of reserving such matters as providing health care for the poor to the sound discretion of the people and the states.

How might we do that, you ask? One idea that I believe has merit involves calling for a Convention of States (under Article V of the Constitution) for the purpose of amending the Constitution to provide more specific limits on the authority of the federal government. To learn more about this plan, visit www.conventionofstates.com.