Mandate Myopia
by digby
So two judges have ruled that the health care mandate is constitutional and one GOP judge has struck it down, which means that there is are now different rulings and it's moving toward the Supreme Court for clarification. This was always part of the opponents' plan -- they telegraphed it right from the beginning -- so it shouldn't be surprising that they would eventually get a judge to rule in their favor and send it up the legal ladder.
This is what I wrote about that back in September of 2009:
[A]s a non-wonk, political observer, I am still very, very, very leery of anything that 1) depends upon Washington "strictly applying" any provision that hurts insurance companies and 2) mandates that Americans write checks to private insurance companies. It may end up that way, but the politics are much harder than if you have a public option for people to choose --- I'd even prefer that it was called something like Medicare Part X (or whatever,) so that there would be no question that the money was going into the pockets of the loathed insurance industry.
The NY Times gives us a hint about how the right is going to respond to the mandate and it isn't pretty:
The requirement that everyone buy health insurance moved a step closer to reality last week — and possibly a step closer to being challenged in court.
Conservatives and libertarians, mostly, have been advancing the theory lately that the individual mandate, in which the government would compel everyone to buy insurance or pay a penalty, is unconstitutional.
“I think an individual mandate will pass, and I think it’s going to be very vulnerable because it exceeds Congress’s constitutional authority,” said David Rivkin, a lawyer who served in the Justice Department under Presidents Ronald Reagan and George Bush. Mr. Rivkin spelled out his argument in a recent op-ed article in The Wall Street Journal that he co-wrote.
“If you say the government can mandate your behavior as far as this type of insurance goes,” he said, “there will be nothing the government can’t do. They can control every single way in which you dispose of your income.”
Reform advocates will undoubtedly look back on all this and wonder if the politics of single payer would have actually been easier. In this particular respect, it almost certainly would have been. There's no doubt that the federal government has the power to tax for certain benefits or compel payments to outside parties for certain optional privileges (like driving.) But whether it has the power to compel all citizens to pay money to particular private interests is an unknown. Who knows what the Roberts Court will decide on that?
This was always going to find its way through the courts, so nobody should be surprised. I came to believe that the public option presented at least something of a backstop on this because a judge would not have been able to use the same rationale -- we are all mandated to pay for government services that we might not use. After all, many of us don't live to be 65, but we do pay into Medicare. At the very least they would not have been able to make the private/public distinction. And if the mandate were struck down, the public program would still be standing to take all those people who would be immediately priced out of health insurance.
The plan is vulnerable on a number of fronts (not the least of which is the funding for the Medicaid expansion) and all we heard for months was "don't worry, once you pass an 'entitlement' they'll never be able to take it away." And that was nonsense. With the plan taking years to implement, the right having packed the courts for decades and the Republican Party being batshit insane, there was always a very good chance that some element of the plan was going to be struck down. And because it was such a Rube Goldberg mess by the end of it, the result was likely to be the whole thing falling apart. Having something like an optional Medicare buy-in would have been a good back-up just in case. (After all, if they start invalidating Medicare, they know there will be hell to pay.)
All the Very Serious People also told us that the plan would be immediately "improved" and all the problems would be fixed once it was passed, so I suppose they could still add on a Public Option. I was just a teensy bit skeptical that they would even be able to defend the plan as it was, much less "fix" it, and I'm even more skeptical now. But who knows, maybe a miracle will happen.
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