Mandate with destiny

Jaime Weinman follows the U.S. Supreme Court's decision on the Obama health care law

Daivd Goldman/AP

As of this writing, the U.S. Supreme Court’s decision on the Obama health care law (popularly known, I believe, as “Hillarycare”) hasn’t come down yet. My own prediction would be that they strike down the mandate and use that to dismantle most of the law, or order Congress to try again and fix it, knowing that Congress will do no such thing. But we’ll see.

Update: So my prediction was wrong, but then again, so was Intrade. And when has Intrade ever been wrong, except all those other times it’s been wrong?

Update 1: Scotusblog reports that “the individual mandate survives as a tax.” But CNN says “Mandate struck down.” How helpful.

Update 2: CNN has changed its headline from “Mandate struck down” to “Correction: The Supreme Court backs all parts of President Obama’s signature health care law.” That’s why CNN is the most trusted name in news!

Update 3: The “money quote” from the decision upholding the mandate, as reported by Amy Howe at SCOTUSBLOG: “Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.”

Update 4: One of the most-analyzed parts of this decision is that Anthony Kennedy, whose vote was expected to be the deciding vote (because it usually is) voted to strike down the mandate, and read the dissent, saying that in his opinion, the entire health care law is invalid. If he had been the deciding vote, then the act would have been struck down as predicted. It was the more reliably conservative Chief Justice Roberts who voted to uphold it. Expect a lot of armchair psychoanalysis of Roberts to be voiced on cable news. Certainly this is one of the more unexpected developments in recent years; in most big cases you could basically predict eight out of nine votes, but not this time.

Update 5: Again from Howe, here’s a summary of Roberts’ reasoning for why the individual mandate is constitutional, and how he squared this with his narrow interpretation of the Commerce Clause. The argument he did buy, that the mandate is basically a tax, was the one advanced by Solicitor General Donald Verrilli during oral arguments. Verrilli received universally bad reviews for his performance in court, but he’s having the last laugh, because he won.

There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

The dissent – which, again, would have taken down the entire law and not just the mandate – includes this instant classic of redundancy: “In our view, the entire Act before us is invalid in its entirety.”

The irony of this situation is well-known by now: the individual mandate was originally proposed by conservatives and supported by many of the same Republicans who recently decided it was unconstitutional. Democrats figured that by including an individual mandate, they would pick up Republican support (which they chased, with some futility, for over a year) and get credit for bipartisan moderate compromise. What they didn’t realize is that whatever they propose automatically, by default, becomes the “left-wing” position, so what was a bipartisan moderate proposal became an unconstitutional left-wing power grab.

In a way, it was inevitable that Republicans would change their tune on health care, and Democrats should have seen it coming. Politicians frequently do a 180 on positions while pretending that they haven’t flip-flopped out of political convenience: look at the Democrats who voted for the Iraq invasion and then acted as if they’d been against it all along. The Republicans, as outlined in this famous 1993 memo from Bill Kristol, are philosophically or at least politically opposed to the ideas behind universal government-sponsored health care. Ezra Klein is surprised, or at least disappointed, that Republicans have abandoned the idea of universal health care of any kind. But it’s just not that surprising given that universal health care is essentially a liberal idea, and conservatives have often considered it antithetical to freedom. Not all, but many.

An individual mandate was once seen by conservatives as a less-bad alternative to Clinton’s health care plan, just as liberals saw the individual mandate as a less-bad alternative to the current system. One of the arguments made in defense of Mitt Romney’s support of a mandate (now that Republicans have to support him) is that in a liberal state, the mandate was more conservative than the alternatives, and a “free-market” system was not an option in Massachusetts. But the ideal is a less regulated health care system, and there was no reason to think Republicans would get behind universal health care if they didn’t have to.