By F. Scott McCown

Texas Attorney General Greg Abbott is asking a federal court to declare national health care reform unconstitutional.

I respect Abbott, having served with him as a state judge, so I carefully read his legal papers, only to discover he is terribly wrong.

Under reform, Congress expanded Medicaid to cover more poor people and created federally subsidized state exchanges where everyone else can buy private health insurance. With some exceptions, everyone must obtain health insurance or pay a tax.

Abbott objects to the “individual mandate” that we all obtain health insurance. Under reform, however, insurance companies cannot deny coverage to those with pre-existing conditions, making the individual mandate essential. Otherwise, people could wait until they got sick to buy coverage, leaving insurance companies operating with only a pool of sick people. With a mandate, everyone is in the pool which keeps premiums affordable.

The Constitution’s Commerce Clause gives Congress authority “to regulate Commerce…among the several states.” The Supreme Court reads this provision broadly. As long as an activity has a substantial effect on interstate commerce, Congress can regulate it. Choosing not to purchase health insurance is an activity with a big, interstate effect on the price and availability of health care in our interdependent federal-state health care system.

The Constitution also gives Congress the power “to lay and collect Taxes…to provide for the…general Welfare of the United States.” The Supreme Court also reads this provision broadly. It includes the authority to tax for a regulatory purpose, such as taxing polluters who chose not to install pollution controls or residents who chose not to purchase health insurance.

Under the Constitution’s Supremacy Clause, federal law trumps state law. To counter, Abbott plays the Tenth Amendment: “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.” But the Tenth Amendment does not limit federal power; it merely says who has the power.

Abbott has previously endorsed an individual mandate; he personally got a state law enacted requiring parents who pay child support to buy health insurance for their kids. Parents who can’t afford a policy or aren’t eligible for a public program must buy a policy designed by the Attorney General from an insurance company chosen by the Attorney General or face going to jail on the motion of the Attorney General.

While Abbott’s program isn’t up and running, its individual mandate plays the same role as the federal mandate, creating a larger insurance pool. Nothing in federal law required this new program; Abbott sought it because he thought it was a good idea.

Unfortunately, unlike insurance purchased from the new federally subsidized exchanges, the Abbott plan isn’t subsidized, which means it will be too costly or cover too little. In any event, it only covers kids who get child support. We all need health insurance.

Abbott is simply not acting in our best interest. More than one in four Texans lack health care insurance and the growing costs add to that number daily. Under reform, about a million Texans gain health insurance through Medicaid, and for every dollar the state spends, it gets nine federal dollars. And for every person who gains coverage through Medicaid, about two others gain coverage by purchasing affordable private insurance through the federally subsidized state exchange, bringing even more federal dollars to Texas. State officials have terribly exaggerated the cost to the state, which pays only a modest share that is far outweighed by the benefits.

Abbott ought to drop his federal case and support affordable, quality health insurance for all Texans through national health care reform.
McCown is executive director of the Center for Public Policy Priorities.
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