By Dr. Yomi Faparusi, Sr. Esq, MD, PhD
LEAVE IT TO THE STATES!
Often times, the average American does not view Health Care as one that has anything to do with the Ten Amendment, after all Health Care is not really a political issue. However, there lies the fallacy- that conservatives fought successfully HillaryCare just for us to fall asleep at the steering wheel and get jolted by its reincarnation four presidential terms after. ObamaCare was never about reducing skyrocketing health care costs; rather it is a coverage bill that should be seen as the latest, and frankly one of the biggest of intrusions, by the Federal Government, into the protected domains of states under the Tenth Amendment.
How the Erosion of the Tenth Amendment Has Affected Health Care
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
In the past decades, the United States’ Congress has used the Commerce clause as the basis of its power to extend the power of the Federal government, albeit controversially, to legislate in areas which are arguably under the auspices of states. Whereas during the Great Depression when there was somewhat unchecked expansion of Federal power at the expense of states to foster a strong national and centralized economy, today the Tenth Amendment is conveniently ignored in the spirit of ideology and social engineering.
Thus, it should not have come as a surprise that this current administration would make Health Care the next conduit for its liberal crusade at the detriment of States’ rights. Arizona, Idaho, Utah and Virginia have passed legislation essentially challenging key provisions thereby preserving the right of citizens to continue to participate in a health care plan outside of the single-payer system. The Virginia Senate in fact passed legislation declaring that Virginia residents could not be compelled to buy health insurance. Currently, several states have sued the Federal Government on the individual mandate provision and it is expected to be decided by a 5-4 ruling at the Supreme Court.
So one has to wonder why the Federal Government would attempt to address regulate Health Care at the national level, or paraphrased how did we get to this place in our history whereby the Commerce clause has become a catch-all clause for eroding the Tenth Amendment? The answer is not too far from the painful reality that both sides of the aisle have been guilty at some point or another. Thus, if one looks at instances where controversial acts of the Federal Government have been seen as encroaching States’ rights, it is often rooted in a political scheming response to a social issue. As such, it is almost clear that what has caused this every extending federal power is the algorithm the Supreme Court has used to define which “activities that substantially affect or substantially relate to interstate commerce,” known as the Substantial Effects test.
Health Care, thus, is not an exception because it has its own share of several hot button issues from medical malpractice to abortion. Another way to look at Health Care with regards to the Tenth Amendment is whether access to health care is a protected right under the Constitution or it is a benefit that may be reasonably expected. As Dr. Ron Paul has stated in multiple debates, prior to the dabbling of the federal government into health care, many religious institutions were the first line of health care providers for many individuals in the community. Hence, it is expected that the further away the regulatory authority is from the community, the less efficient it is in appropriately addressing the needs of that community. The Federal government already has a lot on its plates especially with homeland security; it has no business in regulating Health Care- that should be left to the states!
Tort Reform Creates Competition Between States
It is usually the norm that competition is healthy and breeds the best. The hypocrisy of the ObamaCare was that it did not address the real culprit for the United States’ growing health care expenditure- Torts, in particular Medical Malpractice. This is because the American Trial Lawyers’ Association (ATLA), a major donor to the Democratic Party, lobbied to ensure that no tort reform provision saw the light of the day. This point here is not to analyze the appropriateness of ATLA’s backroom maneuvering after all this is a practice amongst interest groups across the ideological spectrum. However, this role of the ATLA is mentioned to let the reader understand that many provisions of the ObamaCare are more of fluff than stuff. Tort reform is such an important issue that the Debt Reduction Commission featured the topic prominently in its recommendations.
Tort reform laws have the capability of creating healthy economic rivalry amongst states. The Tort reform law in Texas is a prime example that illustrates how states can promote competition and ultimately reduce the costs of health care. Prior to the passage of the Texas Tort reform law in 2003, a plaintiff lawyer could take 15 to 20 depositions, spending almost $100, 000 on a case and getting the defendant to settle for anywhere from $1 million to $3 million. The culture therefore was the practice of ‘defensive medicine’ whereby a physician ordered unnecessary tests seeing every interaction with a patient as a potential lawsuit. Today in Texas, these plaintiff lawyers now spend maximum of $15,000 per case while settling for $150,000.
The fall out of Tort reform laws like that of Texas is that there is a significant decline in law suits against health care providers because lawyers now have to choose only the clear cut cases. As a corollary, medical malpractice lawyers, both plaintiff and to some extent members of the defense bar, leave such localities or states because the environment is no longer profitable. On the other hand, there is an influx of doctors and health care investors from states without tort reform laws. This is akin to the recent surge in the population of states with either lower taxes or no state income tax.
Thus, a state may choose to address tort reform or allow trial lawyers to rule the day with its consequences. As Governor Perry has said about Texas, “we create a business friendly environment for investors to risk their capital” and what competition across states often brings is the lowering of costs. Furthermore, tort reform laws by increasing the number of providers also increase access to health care and increase in jobs created by investors. Thus, one of the key rationales for ObamaCare, that is the need for increased access, could have been addressed at the state level without the huge price tag of the health care reform bill. What ObamaCare does is it imposes a federal stand and thereby alters the playing field for self-determination by these states.
The Threat on Capitalism and Cross-State Health Insurance
The intrinsic hypocrisy in the argument for a public insurance option is that proponents of ObamaCare claimed that it would create competition for private health care insurers whereas the crux of the matter is that insurance companies cannot compete due to strangling restrictions imposed on selling health care policies across state lines. This limitation has deprived the market place of choices and as such there is no national market for health insurance. If there were no restrictions, a state could easily choose to be either a low cost or high cost state to the extent of regulations the state elects to impose and the amount of costly benefits it requires an insurer to cover in its state.
Supporters of the status quo has counter-argued that allowing health care insurers to sell across state lines would result in an increase in insurance premium in low cost areas over time, a concept called risk selection. This could not be any further from the truth about interstate commerce. Unfortunately, what the Health Care reform bill did was to endorse health care compacts- states that agree on standards and allow residents on the states to buy health care insurance within the same compact. However, ObamaCare dictates the rules vis-à-vis that the states interested in forming compacts must “meet a minimum level of insurance regulation and ensure that their plans match the minimum standard of coverage established by health care reform.”
Allowing states to sell across state lines would force a state’s legislature to consider the economic implication of requiring the health plans to be loaded with mandated benefits. Citizens can shop across state lines to purchase cheaper health plans with benefits that suit their needs and this encourages affordability of health care insurance coverage. Eventually, competition across states and a surplus of choices will result in a reduced cost of insurance policies across most states with each state striving for more rational regulations. Just like Tort Reform laws, the Tenth Amendment encompasses and preserves a state’s power to determine its future. Perhaps, if the states were allowed to tackle their Health Care concerns without being over-regulated at the Federal level, there would have been no need for individual mandates.
As I have discussed earlier, the road ahead is tough and in a Tenth Amendment purist’s world, there will be controversial decisions. Take for example Roe v. Wade; if it is overturned in future, it is expected that the default regulation of abortions will fall under the states’ domain. Will conservatives be comfortable with the liberal states legislating in to law their version of Roe v. Wade citing the health of the mother, or would we argue that the key issue here is life of the fetus and as such should be determined federally.
Another dilemma is raised by RomneyCare, an issue that has received a lot of attention in this cycle because of what some have described as a similarity to ObamaCare. For the purpose of the Tenth Amendment discussion, should the citizens of Massachusetts be able to decide whether or not they want RomneyCare and can they decide that they want individual mandates on purchase of health insurance? These issues are just food for thought because the Tenth Amendment is aimed at checks and balances but the reality is those balances are more convoluted and delicate when it comes to Health Care because of the raw emotions associated with the topic.
The Rally-Cry to Restore the Tenth Amendment
A friend once told me that “sitting on the fence is in itself a position.” As Americans, we have to take an active stand in restoring the original intent of founding fathers like James Madison that the Federal government should not seek for itself unlimited powers; that the powers of states should not shrink due to the liberal application of ‘Substantial Effects’ commerce clause power. However, I will be remiss if I do not address my fellow conservatives that there would be instances where going with the Tenth Amendment would appear to conflict with mainstream conservatism but ultimately, restoring States’ rights is better on the long run. I leave you with the words of Winston Churchill as a ray for hope- “You can always count on Americans to do the right thing—after they’ve tried everything else.”
 The Patient Protection and Affordable Care Act (PPACA): Pub.L. 111-148, 124 Stat. 119
 The Tenth Amendment (Amendment X) to the United States Constitution, ratified on December 15, 1791.
 Fiscal Commission Report, §3.3.12. http://www.fiscalcommission.gov/sites/fiscalcommission.gov/files/documents/TheMomentofTruth12_1_2010.pdf (last accessed February 12, 2012)
 Tort Reform Texas Style. http://www.abajournal.com/magazine/article/new_laws_and_med_mal_damage_caps_devastate_plaintiff_and_defense_firms_alik/ (last accessed February 15, 2012)
 Wall Street Journal. Insurance Companies Should Be Allowed to Sell Across State Lines. http://online.wsj.com/article/SB10001424052970203550604574360923109310680.html (last accessed February 13, 2012).
 Understanding the controversy of selling health insurance across state lines. http://www.insureme.com/health-insurance/selling-insurance-across-state-lines (last accessed February 14, 2012)
 Statement by Michael Nottidge, M.D., M.P.H.