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The individual mandate's problem is not the Constitution

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Here are some of the Republican senators who co-sponsored an individual mandate for health care when it was included in John Chafee's 1993 bill and are still serving in the upper chamber: Bob Bennett, Kit Bond, Chuck Grassley, Orrin Hatch and Richard Lugar.

Here are some of the Republican senators who co-sponsored an individual mandate in the Wyden-Bennett bill, and are still serving in the upper chamber: Bob Bennett, Lamar Alexander, Bob Corker, Mike Crapo, Lindsey Graham, Chuck Grassley and Judd Gregg.

You'll notice some overlap between the two bills. Bennett was on both, and so was Grassley. For a long time, the individual mandate was perfectly acceptable among conservatives. It was their idea, in fact. When Democrats adopted it as a way to craft a health-care bill that Republicans might accept, it became instantly noxious. Today, the conservative position on the individual mandate is that it's unconstitutional.

So you can understand my reluctance to give the argument much credit. I'm not saying it's cynical: I believe that partisans convince themselves of whatever it is they need to believe, and that those self-deceptions are sincerely held. But it's not the actual argument. The actual argument is that the individual mandate was passed by President Obama and the Democrats. If it had been passed by President Mitt Romney and the Republicans, its constitutionality would not be in doubt. Democrats would be unlikely to challenge it (it isn't in their interest to narrow the Supreme Court's reading of the Commerce Clause), and if they did, the conservative Supreme Court would be unlikely to consider their challenge. Conversely, I don't know anyone who doubts that if one of the Republican-appointed justices had to resign and Obama had the opportunity to name his replacement, the individual mandate would be safe.

Now the individual mandate is traveling through the courts. A judge appointed by Bill Clinton has ruled it constitutional. A judge appointed by Ronald Reagan has signaled that he might do the opposite. Last week, Bill Dailey asked whether I truly believed the Supreme Court part of this cynical dance. And the answer is yes, I do.

That doesn't mean I think the Supreme Court will rule the mandate unconstitutional. Coming on the heels of Citizens United, that would spark a tremendous confrontation between the Democratic Party, the Democratic president, and the Supreme Court of the United States. There are good reasons for them to prefer avoiding that outcome. They may try to split the difference, offering a limited ruling requiring slight tweaks to the mandate.

But the evidence on past Supreme Court decisions, the heavily political process through which Supreme Court justices are now chosen, and our intuition -- the Supreme Court is full of human beings, and human beings have biases -- should make us very skeptical of claims that the Supreme Court is somehow removed from politics, or that the same partisan forces that turned the individual mandate from a conservative idea into a conservative bete noire are not behind the arguments now playing out in the courts.

To put it slightly differently, I have no concerns about the abstract constitutionality of the individual mandate. Insofar as I have any concerns, they're about the partisan leanings of the Supreme Court's current occupants.

Photo credit: By Michael Conroy/Associated Press

By Ezra Klein  | October 20, 2010; 11:42 AM ET
Categories:  Health Reform  
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Comments

"A switch in time saved nine."

Fear of retribution when they push their power too far is the only thing that holds a conservative court in check when we have a liberal government. Hard to say if it goes the other way, as we've never had a liberal court pushing the patience of a conservative government.

Posted by: theamazingjex | October 20, 2010 11:53 AM | Report abuse

I'd be interested in a post from you about your view of what isn't allowed under the Commerce Clause.

Ever since FDR was able to use the Commerce Clause in the Agricultural Adjustment Act of 1938 to prevent a farmer from feeding wheat that he grew himself to his own livestock (Wickard v. Filburn (1942)), there has been no meaningful limitation on what the Federal government can enact under it.

http://en.wikipedia.org/wiki/Wickard_v._Filburn

That is not the same thing as saying that those acts are constitutional.

Posted by: jnc4p | October 20, 2010 12:03 PM | Report abuse

There is a legitimate constitutional question here about whether the health care bill's individual mandate is an overreach of the commerce clause, which is why the court is examining it. Instead of offering logical legal viewpoints on the constitutionality of the mandate, this article only examines the politics involved, and is not very informative. Frankly the politics of it are beside the point. The problem that many of us have with the individual mandate is the precedent it sets if it stands. If Congress can pass a law mandating that I have to purchase health insurance, what else can they mandate that I do? Am I going to be required to buy life insurance even if I have no dependents? Am I going to be forced to buy auto insurance even if I have no car? Is Congress going to force me to purchase solar panels for the roof of my house, even if I don't want or need them?

Posted by: Illini | October 20, 2010 12:04 PM | Report abuse

@Illini "There is a legitimate constitutional question here about whether the health care bill's individual mandate is an overreach of the commerce clause, which is why the court is examining it. Instead of offering logical legal viewpoints on the constitutionality of the mandate, this article only examines the politics involved, and is not very informative. Frankly the politics of it are beside the point. The problem that many of us have with the individual mandate is the precedent it sets if it stands. If Congress can pass a law mandating that I have to purchase health insurance, what else can they mandate that I do? Am I going to be required to buy life insurance even if I have no dependents? Am I going to be forced to buy auto insurance even if I have no car? Is Congress going to force me to purchase solar panels for the roof of my house, even if I don't want or need them? "

Yes.

The precedent was set 68 years ago. See Wickard v. Filburn (1942)

http://en.wikipedia.org/wiki/Wickard_v._Filburn

Posted by: jnc4p | October 20, 2010 12:08 PM | Report abuse

I still wish Ezra would make a distinction between abstract or theoretical issues of constitutionality and the practical matter of whether a particular law will be deemed constitutional by the current court system.

Saying the ACA would "be" constitutional if heard by liberal judges and not "be" constitutional if heard by conservatives conflates those two. There's a fair argument to be made that the practical matter is the only one with any real effects, but that doesn't mean we should talk about the practical matter as if all kinds of metaphysical notions of constitutionality shift around every time an opinion is written. Sometimes courts get it wrong, even if their decision has some practical, if sometimes temporary, effects.

Posted by: MosBen | October 20, 2010 12:12 PM | Report abuse

Gee, Ezra, hate to break it to you, but most legislation (the current ObamaCare monstrosity being one of the exceptions) has some meaningful degree of bi-partisan support behind its passage. And when courts reviewing such legislation find it to be unconstitutional, I suppose they are saying to its supporters from both parties who caused it to become enacted law, "You got the meaning of the Constitution wrong" [they might also say, because it's true, "But don't feel bad, members of previous Congresses have done the same thing, and members of future Congresses will too."]. So no, I am not concerned, nor do I regard it as cynical, that some Republicans thought that an individual mandate would have been an appropriate provision to include in their proposed legislation - perhaps their rationale for that position was that such a mandate would be a tax, and perhaps they would have clearly so stated in any legislation they adopted that included such a mandate. As we both know, however, there is no such legislation, and the Democrats who jammed the ObamaCare mess through and down the throats of an ungrateful public (cads that we are, to refuse to acknowledge and praise this "accomplishment") were quite clear that such a mandate was NOT a tax - until, of course, the Democratic appointees running the Justice Department got to court, where they argued vociferously that of course such a mandate IS a tax. Now that, I find scary, cynical and politically opportunistic in the extreme.

Posted by: TaxedtotheMax | October 20, 2010 12:14 PM | Report abuse

Who are the people who refuse health insurance at any price?

Posted by: JkR- | October 20, 2010 12:15 PM | Report abuse

sadly I agree with you Ezra so I see the mandate being struck down by the Supreme Court and then its a horrible mess. Think NY prices for EVERYONE. People can jump on and off coverage when they get sick, Prices skyrocket, insurance death spiral etc.

If only the idiot Republicans had a clue what they were doing was moving closer towards the socialist style of healthcare that they fear the most.

Posted by: visionbrkr | October 20, 2010 12:17 PM | Report abuse

Quite odd how penumbras and emanations in the Constitution safeguard a woman's right to choose abortion but not her right to choose not to participate in Obamacare.

Posted by: bgmma50 | October 20, 2010 12:17 PM | Report abuse

Ezra you say

"Coming on the heels of Citizens United, that would spark a tremendous confrontation between the Democratic Party, the Democratic president, and the Supreme Court of the United States. There are good reasons for them to prefer avoiding that outcome."

What are those reasons? What can Dems do?

This President is Wimp. He forgets that Politics means playing 'hard ball'. Ever since Slick Willie trounced Bob Dole and earlier Bush Sr.; Dems have forgotten what is Politics and how hard that needs to be played.

Given that, I doubt Dems will be able to capitalize anything on Supreme Court ruling. You are right that Supreme Court is packed with judges who are cynical who will do anything for their Partisan interests. Sad part is current Democratic Party is incapable of overrulling that politically. The way they are today, Dems are simply going to fold.

What did they do for Campaign Finance? Where did Sen. Schumer bill go? And on the other hand as Bill Smith pointed on Politico, Obama has defrocked Dems of Third Party Money. Neither do you want to take the issue politically nor do you want to play the hardball? I believe predicament is clear in such a situation.

Posted by: umesh409 | October 20, 2010 12:22 PM | Report abuse

"but not her right to choose not to participate in Obamacare.

Posted by: bgmma50 | October 20, 2010 12:17 PM

==========

Like who, for example? Who doesn't have health care, and doesn't want it, even if it's subsidized in price down to zero?

Who is it that's refusing all health care, who's rights are being defended?

Who are they?

Posted by: JkR- | October 20, 2010 12:22 PM | Report abuse

Actually, Wickard v. Filburn isn't entirely on-point: the grain-grower could avoid the regulation by ceasing to grow grain entirely whereas a citizen can escape the PPACA's mandate only by death.

This particular aspect -- that unavoidable regulation is tantamount to police regulation -- is being argued in one federal Court today. Of course, the federal government lacks the authority to implement unavoidable police regulation, other than the taxes of the trinoda necessitas (bridge bote, burg bote, and fyrd bote). In all, the Justice Department has given 17 examples of avoidable regulation in its effort to justify the unavoidable regulation of the PPACA: while there is no argument that Congress can both tax and can conscript individuals into military or civil service, the Obama/Pelosi Regime will not acknowledge the PPACA as a tax or as a conscription into service.

Had the Obama/Pelosi Regime simply acknowledged that the PPACA was the most massive tax in history, we wouldn't be having the argument. Congress has the power to tax... but was unwilling to be honest enough to characterize the "mandate" of the PPACA as a tax.

Posted by: rmgregory | October 20, 2010 12:23 PM | Report abuse

@MosBen "I still wish Ezra would make a distinction between abstract or theoretical issues of constitutionality and the practical matter of whether a particular law will be deemed constitutional by the current court system.

Saying the ACA would "be" constitutional if heard by liberal judges and not "be" constitutional if heard by conservatives conflates those two. There's a fair argument to be made that the practical matter is the only one with any real effects, but that doesn't mean we should talk about the practical matter as if all kinds of metaphysical notions of constitutionality shift around every time an opinion is written. Sometimes courts get it wrong, even if their decision has some practical, if sometimes temporary, effects."

I believe Ezra's position is the purely cynical (and accurate one) that the legal arguments are mere propaganda for doing whatever 5 justices want to do on any given case.

http://voices.washingtonpost.com/ezra-klein/2010/10/the_constitutionality_of_the_i_1.html

I suspect he views it much the same as the (meaningless) distinction between "procedural" votes in the U.S. Senate (i.e. filibustering a motion to proceed) and "substantive" votes on the actual legislation.

Posted by: jnc4p | October 20, 2010 12:24 PM | Report abuse

At what point is the power of Congress to regulate health care through the Commerce Clause limited by the right to privacy found in the Constitution by Roe vs. Wade?

Posted by: bgmma50 | October 20, 2010 12:25 PM | Report abuse

Mr. Klein,

I am very cynical as well, and using politicians' changing viewpoints on a matter (over 16 years no less) to argue that there's no legitimate debate here is not fair. I believe if the individual mandate is constitutional, then the Federal government can compel me to purchase any private good. I also believe that the Wickard-Filburn was an egregious violation of Constitutional principles.

Also, I don't want to let the post pass by without mentioning that both political parties miraculously change their mind depending on who proposes an idea. Remember, Obama was opposed to the mandate when Senator Clinton proposed it, and many who defended Obama's position during the campaign, I'm sure still defended his position during the health care debate.

Finally, why do liberals defend this mandate so vehemently? Do they not worry about the constitutional implications? My view is they do not, because they believe the Constitution can be interpreted to sidestep any restriction.

Posted by: FroggyJ4 | October 20, 2010 12:25 PM | Report abuse

"Like who, for example? Who doesn't have health care, and doesn't want it, even if it's subsidized in price down to zero?" Posted by: JkR-

The price will not be subsidized down to zero for most people, JkR-. And I know plenty of young people who can get high deductible coverage for $75-$100 per month but prefer their iphone plan. They really really won't be happy about being the ones who are mandated to subsidize the price down to zero for others.

Posted by: bgmma50 | October 20, 2010 12:33 PM | Report abuse

bgmma50, rmgregory or anyone else defending striking down the mandate what do you think is the end result when/if this gets struck down?

Posted by: visionbrkr | October 20, 2010 12:33 PM | Report abuse

@visionbkr "bgmma50, rmgregory or anyone else defending striking down the mandate what do you think is the end result when/if this gets struck down? "

You can put in a time limitation on eligibility for subsidies in the exchanges that deals with the adverse selection problem in a less direct way than the mandate. I.e. if you've gone without insurance in the last X years, you aren't eligible for the government subsidies until Y years have passed.

Posted by: jnc4p | October 20, 2010 12:38 PM | Report abuse

vision,

I'm actually having a bit of fun at Ezra's expense. I couldn't resist taunting him with the prospect of Roe being used to torpedo Obamacare.

I know that you know a lot about health insurance, so I'll be interested in your take on this. I've always thought that it would be best to have an open enrollment opt in period for national health care, after which those who do not opt in are subject to limitations for pre-existing conditions. There are a lot of different ways to structure those limitations, and I'm sure that experts in the field could devise some workable ones.

Posted by: bgmma50 | October 20, 2010 12:41 PM | Report abuse

This post reads like laying the groundwork for the finger-pointing that would follow a loss in court. It sounds like Ezra's decided that the mandate is going to be struck down, and he wants to start painting that decision as political before it is issued.

Posted by: tomtildrum | October 20, 2010 12:43 PM | Report abuse

@MosBen: You argue for a distinction without a difference. The Constitution is intentionally written in general language that has meaning only when expounded through case law. We can criticize Supreme Court decisions for departing from precedent (as in Citizen's United), for overreaching (as in Lochner), for failing to progress (as in Dred Scott), or for a host of other failings, but the Court is never "wrong" in the abstract sense that a mathematical equation may be. The Constitution is what the Court says it is to the extent that the political system accepts the Court's authority.

Posted by: QuiteAlarmed | October 20, 2010 12:44 PM | Report abuse

"The price will not be subsidized down to zero for most people, JkR-. And I know plenty of young people who can get high deductible coverage for $75-$100 per month but prefer their iphone plan. "


So, people who have the money but prefer to risk going without. (If they don't have the money they're subsidized, right?)

We're just asking them to throw enough money in the till to have them quietly smothered with a pillow should they become deathly ill, and therefore a leech on society.

Or maybe we could tag them with a medallion that says, "if found ill, push to the side of the road. Do not resuscitate. Recharge iPhone please."

/snark

Who are they really?

Posted by: JkR- | October 20, 2010 12:45 PM | Report abuse

I was also someone who just waved away people who thought that the Individual mandate was unconstitutional until I thought about it this way. Could the government use the commerce clause to fine people who did not buy an American car? This clearly affects interstate commerce. I think that the government could clearly raise taxes on everyone and give a tax break for people who buy an american car, but I don't think the constitution would allow the government to fine people who choose not to do so.

Posted by: spotatl | October 20, 2010 12:48 PM | Report abuse

"Like who, for example? Who doesn't have health care, and doesn't want it, even if it's subsidized in price down to zero?

Who is it that's refusing all health care, who's rights are being defended?

Who are they?"

JkR-

Clearly someone's rights are being infringed or else we wouldn't be talking about a mandate.

A few possible examples:

Young people who earn $45,000 a year and aren't elligible for subsidies.

People who refuse modern medical services for faith reasons.

People who oppose stealing even if they are the beneficiaries of Robin Hood's largesse (admittedly a rare bird).

Far left liberals/socialists who deeply distrust insurance companies.

In Massachussetts, the number of uninsured dropped from 6% in 2006 of the population to 4% by December 2009. Thus we can see 4% of the population of Massachussetts doesn't want health insurance under that system, even if there is a financial penalty to be paid.

Posted by: justin84 | October 20, 2010 12:55 PM | Report abuse

jnc4p,

sure you could put a timeline on but you're still going to have people game the system. Let's say you did that and said if you've been without insurance for 6 months then you can't have coverage for 6 months. When you do that then you allow people to come on after 6 months with no limitations? What of someone that has stage 2 cancer that develops to stage 4 and instead of covering them at lesser cost before, the system actually ends up costing more becasue they went without. Sorry it doesn't work (and that obviously factors only cost).

People game the system now to their benefit to a degree that many people couldn't fathom.

In NJ for example a new law was enacted effective September 1st 2010 that states that an employer can only have one single insurance company (say Aetna for example). The reason was because employers and unscrupulous brokers and agents were offering two plans for their companies and placing the older employees on Insurance Company "X" (and thus they had a higher than normal premium) and the younger demographic employees on Insurance Company "Y" (and thus this group had a much smaller premium) and then after a month or two they'd cancel Insurance Company "X"s plan and move everyone to Insurance Company "Y". Voila, you have rates that are cheaper than they should be for you demographic for 10 months out of the year. Rinse and repeat next year.

The only honest true way to do it is with the mandate.


bgmma50,

I get it. Who doesn't like to have fun at Ezra's expense right? the issue though is that the best minds all say that the mandate is the best thing that works. Also (IMO) you need to tweek the subsidies so that it doesn't become too beneficial to remain on them and too hurtful to not.

Oh and for God's sake get some cost control. that's why i loved the David leonhardt article from Wonkbook. That's a fantastic idea that will promote postive outcomes, and not just pay forever and its not a surprise that insurers came up with it first as he mentioned.

Posted by: visionbrkr | October 20, 2010 12:56 PM | Report abuse

Posted by: justin84 | October 20, 2010 12:55 PM |

Thank you for answering.

One could easily make the case these folks are leeching off society's better angels, the ones that prevent us from leaving them dying in a ditch or on a hospice table.

Posted by: JkR- | October 20, 2010 1:01 PM | Report abuse

@jnc4p: Your proposal doesn't provide a solution unless you are willing to turn uninsured people (including children) with life-threatening injuries away at the emergency room doors. Otherwise, the people who elect not to be insured will be given treatment that they cannot afford, and those costs will be pushed onto the premiums of those who are insured. As a society, I don't think we are willing to tell doctors to take a page from the South Fulton fire department and watch uninsured children die at their doorsteps. Consequently, I think its better to just make everyone pay their fair share.

Posted by: QuiteAlarmed | October 20, 2010 1:04 PM | Report abuse

"Your proposal doesn't provide a solution unless you are willing to turn uninsured people (including children) with life-threatening injuries away at the emergency room doors. Otherwise, the people who elect not to be insured will be given treatment that they cannot afford, and those costs will be pushed onto the premiums of those who are insured. As a society, I don't think we are willing to tell doctors to take a page from the South Fulton fire department and watch uninsured children die at their doorsteps. Consequently, I think its better to just make everyone pay their fair share."

That alternative was never seriously discussed.

There is no reason to provide the underclass of society with expensive medical care that they will never be able to pay for, other than liberal elitist policy goals.

Posted by: krazen1211 | October 20, 2010 1:09 PM | Report abuse

justin84,

what if the young person making $45000 who isn't eligible for subsidies contracts cancer and then has immediate access to hundreds of thousands of dollars worth of care and has put up to that point little or nothing into the risk pool? Sorry I don't want to pay for him or her.

Sure they could never get cancer but that's why they call it insurance. its a risk you take vs a risk the insurance company takes covering you.


A faith based person's faith has to be pretty strong to allow themselves to die rather than seek medical care.

Posted by: visionbrkr | October 20, 2010 1:10 PM | Report abuse

"what if the young person making $45000 who isn't eligible for subsidies contracts cancer and then has immediate access to hundreds of thousands of dollars worth of care and has put up to that point little or nothing into the risk pool? Sorry I don't want to pay for him or her."


No, but he could just as easily claim that he doesn't want to pay excess premiums because the bill limits gender and age rating, and mandates a bunch of coverage that he doesn't want or need.

Posted by: krazen1211 | October 20, 2010 1:21 PM | Report abuse

@QuiteAlarmed:"Your proposal doesn't provide a solution"

I wasn't attempting to provide a solution. I was attempting to answer this question:

@visionbkr "what do you think is the end result when/if this gets struck down"

Posted by: jnc4p | October 20, 2010 1:36 PM | Report abuse

"bgmma50, rmgregory or anyone else defending striking down the mandate what do you think is the end result when/if this gets struck down?"

Visionbrkr,

My guess is that we get a health insurance tax credit or an open enrollment period if the mandate is struck down.

I'm not sure we necessarily get single payer as a result if there is no replacement for the mandate either. I definitely agree it is possible, but such an outcome would require 60 very liberal Senators - if I remember correctly, liberals couldn't even get HR 676 a CBO score.

Of course, you know this sector better than I do so I readily admit I might be missing something here.

Posted by: justin84 | October 20, 2010 1:38 PM | Report abuse

Lets not pretend that a young person who has no insurance and contracts cancer gets access to the same treatment, care free and subsidized by taxpayers.

The young person is assuming a real risk when they opt to go without insurance. Financially, that risk is worth it for a lot of them, and its not a bad decision statistically.

The idea that the younger uninsured are burdening older taxpayers in society is ridiculous. Forcing young people to buy these expensive insurance plans is an actuarial reality required to make this nightmare of a bill work. You need all of us healthy young people paying premiums we'll never use so that we can adequately fund all the benefits that are required, most of which will accrue to older people more likely to deal with these diseases.

This would all be well and good if we could expect to enjoy the same privileges in thirty or fourty years, but we won't. The math behind Medicare and Obamacare is pretty clear. Its unsustainable. Sure politicians can buy political capital by enacting and preserving generous entitlements, but we all know the eventual outcome will be cuts in benefits and higher taxes (that we will pay, and our children will pay). We won't get the same thing today's freeloaders enjoy while the house of cards stands, and we know it. That's why you get my resistance to it.

On a final note, this is just one example of the federal government and self serving politicians implementing moronic policy that redistributes money from young to old. Social Security is a prime example, and it all comes back to powerful interest groups. The mistakes of Liberal dreamers who belong in the SPED Math class will cost me and my generation our economic liberty and well being. I prefer the republicans for the sole reason that I think they are less likely (though not by much) to do nothing. The Welfare state is big enough, stop already.

Posted by: donopj2 | October 20, 2010 1:59 PM | Report abuse

Not all on the Court are "partisan". You, as someone who does the bidding of the current administration, have a hard time understanding a man as independent as Justice Roberts.

Posted by: truck1 | October 20, 2010 2:14 PM | Report abuse

Okay, let's game this out. The court strikes down the mandate, so we're left with severely hamstrung insurance companies deprived of their main source of revenue (screwing people over), the insurance companies go belly up and the only game left in town is the government. Single payer in four years.

Posted by: klautsack | October 20, 2010 2:44 PM | Report abuse

"what if the young person making $45000 who isn't eligible for subsidies contracts cancer and then has immediate access to hundreds of thousands of dollars worth of care and has put up to that point little or nothing into the risk pool? Sorry I don't want to pay for him or her.

Sure they could never get cancer but that's why they call it insurance. its a risk you take vs a risk the insurance company takes covering you."

Visionbrkr,

I understand what you are saying here but I'm worried that once you concede the principle of the matter we will face a slippery slope.

Should we require people to purchase only fruits, vegetables and whole grain foods, and prevent them from purchasing red meat and junk food? After all, you can eat red meat and junk food or fail to eat fruits and vegetables and be fine, but studies have shown you are taking a risk.

Now that sounds far fetched, but maybe it won't in a decade or two.

After all, we have set a precedent that government can mandate the purchase (and of course prohibit the purchase) of a product because it impacts interstate commerce.

Furthermore, we have set a precedent that the government should intervene when choices made by one individual have costs on others. Today it is about having access to health insurance without paying in due to guaranteed issue, and tomorrow it will be due to others having to pay (now mandatory) insurance premiums and taxes to cover dietary related costs.

Consider Ezra's excitement over menu labeling, despite evidence (which he linked to once) that it doesn't have much of an effect.

After menu labeling is put into place and the country remains as fat as ever, are Ezra and like minded politicians going to shrug and say "we gave them the information and they didn't use it as we expected, oh well"? Or will we see a wonk book post about how our food choices should be controlled by the government because people can be irresponsible when left to their own devices?

There could be mandatory gym usage too - perhaps there is a $2,000 tax penalty on every citizen and you get a $20 credit whenever you swipe in at the gym. After 100 trips, your penalty is paid, and if you continue going you continue to get credit which helps reduce the cost of gym membership. The technology to pull this type of scheme off already exists.

I'm worried that we won't have a leg to stand on in opposition to such schemes because of precedents we are setting today.

At what point do we let people live their lives and let them take responsibility for their own actions?

Posted by: justin84 | October 20, 2010 2:45 PM | Report abuse

I'm tired of commenters worrying about slippery slope doomsday scenarios where the government forces people to do X.

We already have a doomsday scenario of spiraling health care costs that will bankrupt the country if we the people don't do something about it. Private industry won't do something about it (they are making money hand over fist under the old system). The current government of the people passed an (admittedly kludgy) law that, in part, begins to address that problem. Part of the mechanism to do that is to make sure risk is properly pooled so that we the people don't have to foot the bill for emergency care for the uninsured.

And all people can do is complain that the evil government is forcing people to do something that, at a modest price, will make us all better off and less bankrupt. No, the law is not a perfect solution, but it's an honest start and it's what we managed to get passed in a very dysfunctional legislative climate.

To see people cheering on it's demise is supremely depressing.

Don't get me started on global warming.

Posted by: jeirvine | October 20, 2010 2:58 PM | Report abuse

Where does the Constitution say an individual has to serve on a federal jury? Or give his land so that a post office can be built? Or serve in the Army?

In each of those instances, the power to mandate is granted to the federal government by the people's grant of power to create a court, to create post offices, to create an army. Similar powers are granted by the power to tax -- another compulsory act.

There is no question that each sovereign state has the absolute power -- the general police power -- to compel citizens to do certain things; however, such power is not available to the federal government.

So, in answer to the question above (visionbrkr: "what do you think is the end result when/if this gets struck down?"), I'd be of the opinion that both the Governor and AG of Virginia have expressed: while the federal government lacks the power to implement an individual mandate, the states have such a power and can (and will) use it just as Massachusetts has used it.

The issue isn't that mandatory health insurance is a bad thing; instead, the issue is that the federal government lacks the power to make and enforce such a mandate. Each American state -- like each sovereign state of the EU -- can establish and maintain its own health care system. In fact, such diversity of health care arrangements has functioned successfully in EU states for quite some time!

In practice, the PPACA is nothing more than a power grab -- one which gives each President and his followers a greater power over life and death: we've already seen how a regime can grant "waivers" depending upon political climate. Why not allow the citizens of each state to pursue the course they find most suitable? Even if found Constitutionally acceptable, why is a national-social solution necessary?

Posted by: rmgregory | October 20, 2010 3:01 PM | Report abuse

@donopj2: "The idea that the younger uninsured are burdening older taxpayers in society is ridiculous."

Do you have support for that, or is it just your assumption? I did a quick google search and found a 2008 paper from the Kaiser Foundation (http://www.kff.org/uninsured/upload/7787.pdf) on low-income uninsured young adults (age 19 to 29). According to the paper, roughly 1 in 4 low-income uninsured young adults reported being contacted by a collection agency about unpaid medical bills. If they are being contacted by collection agencies, then they are increasing the cost of premiums paid by the insured. That doesn't tell us how great the impact is, but I think it does call your assumptions into question.

Posted by: QuiteAlarmed | October 20, 2010 3:13 PM | Report abuse

donopj2,

unless you found that magical fountain of youth out there you'll one day be on the other side of that argument.

justin84,

I agree that there could be a slippery slope there but I also think that some things you just can't make totally fair. In NJ for example we've been living under modified community rating for years. that basically means no change in rate for smoking, diet, health conditions. So basically if I'm healthy i'm paying for the poor slobs who don't eat well, smoke etc. Well to my benefit I should live longer and they're going to die sooner. To me that's enough of a benefit and to them it should be enough of a deterrent to have them stop whatever they're doing. Sorry but you can't regulate everything but i'm not willing to pay for people to get care who game the system especially when they do it intentionally (as I mentioned in the example above).

justin84 says:

"There could be mandatory gym usage too - perhaps there is a $2,000 tax penalty on every citizen and you get a $20 credit whenever you swipe in at the gym. After 100 trips, your penalty is paid, and if you continue going you continue to get credit which helps reduce the cost of gym membership. The technology to pull this type of scheme off already exists."


Couldn't you have people that also gamed that and went to the gym, swiped it and left so they get their credit and don't have to work out? How about I'm going to the gym twice this week and you're going twice and during your visits you take my card and swipe it and during yours I'll take yours and swipe it. And those potential scams are just off the top of my head. What about the fact that you work out a lot harder than I do so its better for you? What of injuries related to working out (ie pulled muscles, etc).

Sorry but the only thing I've heard that works at all is risk pools and capitation. Anything else is either ready and able to be gamed or just nibbling around the edges.

Posted by: visionbrkr | October 20, 2010 3:19 PM | Report abuse

As for all of the slippery-slope arguments: remember that a proposed law still has to get through Congress first, which effectively means these days it has to be able to get 60 votes in the Senate (I'm not holding my breath for filibuster reform anytime soon). That presents a tremendous practical check on using either the Commerce Clause or the power to Tax, especially when you consider the opportunity for constituents to communicate with their Members of Congress.

On that practical theme, I agree that the Court has become politicized. But as a practical matter, as President Andrew Jackson noted, the Court can't enforce its decisions, so it relies to a certain degree on maintaining public legitimacy. With decisions like Bush v Gore, and Citizens United, they may have pushed that legitimacy to the edge. Maybe they're still willing to push the envelope; maybe they'll be more cautious.

I think it is also worth noting that the insurance industry supports the mandate. This Court has been very favorable to corporate interests, and I do not think that fact will escape them.

Posted by: reach4astar2 | October 20, 2010 3:42 PM | Report abuse

"I believe that partisans convince themselves of whatever it is they need to believe, and that those self-deceptions are sincerely held."

Ezra, do you really believe that? Especially put so categorically, so 100%?

Is it really necessary to say things like that?

How about perhaps, Some may convince themselves, while others are not so out of touch with reality, and just look at this as a tactical move for partisan gain, or a necessary shift due to the increased radicalization of the party over the last ten to twenty years, with ever greater indirect control from billionaires like the Koch brothers.

Posted by: RichardHSerlin | October 20, 2010 4:04 PM | Report abuse

And then a lot of these Republican congresspeople are new, from a newer, much more radical wave. They're just a lot more fundamentalist laissez faire then typical Republican congresspeople elected ten to twenty years ago, and especially thirty to forty years ago; that's like night and day.

So really Ezra do you have to say these exagerated, absolutist Broderisms? I mean you know you're my boy, and I think you're doing an amazing job, but these kinds of statements just don't sit well.

Posted by: RichardHSerlin | October 20, 2010 4:13 PM | Report abuse

"the Supreme Court is full of human beings, and human beings have biases -- should make us very skeptical of claims that the Supreme Court is somehow removed from politics"

It depends on the culture, and the Republicans have horribly hurt the culture over the last generation. That's a huge reason why we have to abolish the filibuster; there's no more a responsible culture to restrain it's abuse. It's now far in the direction of greed is good, win no matter what, anything to benefit rich trust fund babies, and extreme economic libertarianism.

Posted by: RichardHSerlin | October 20, 2010 4:22 PM | Report abuse

The individual mandate makes good policy sense. It is probably constitutional. It is also political cyanide. Kaiser has a great big 80% Mr. Yuk on it.

Why should conservative justices kill this thing?

Posted by: pmcgann | October 20, 2010 4:44 PM | Report abuse

"In NJ for example we've been living under modified community rating for years. that basically means no change in rate for smoking, diet, health conditions. So basically if I'm healthy i'm paying for the poor slobs who don't eat well, smoke etc. Well to my benefit I should live longer and they're going to die sooner. To me that's enough of a benefit and to them it should be enough of a deterrent to have them stop whatever they're doing."

But couldn't we say the same about pre-existing conditions and the mandate?

To your benefit, you have insurance, and to them the inability to pay for treatment if they contract some awful disease be deterrent enough to purchase insurance?

Another consideration is that a healthy diet and regular exercise is almost certainly more important to the typical person's health than having health insurance. So not only would intervening in the food/exercise space be more effective from a health perspective, it would also cost the government far less money.

"What of injuries related to working out (ie pulled muscles, etc)."

On the health insurance side of things, what of hospital infections and medical errors?

http://www.medicalnewstoday.com/articles/11856.php

"Couldn't you have people that also gamed that ..."

I agree you have fair objections, though I imagine if such a proposal were passed and gaming ran rampant, the government could always put a hefty penalty on the practice. Most folks will fall into line if the penalty is sufficient.

This wasn't a serious proposal on my part, just a way to illustrate how other proposals which seem a far fetched could come about based on the same principles.

That these systems are poorly structured and can be gamed will be the only complaint, and not enough to stop them as Medicare and Obamacare are both poorly structured and easy to game themselves.

Posted by: justin84 | October 20, 2010 5:24 PM | Report abuse

As for all of the slippery-slope arguments: remember that a proposed law still has to get through Congress first, which effectively means these days it has to be able to get 60 votes in the Senate (I'm not holding my breath for filibuster reform anytime soon). That presents a tremendous practical check on using either the Commerce Clause or the power to Tax, especially when you consider the opportunity for constituents to communicate with their Members of Congress.

On that practical theme, I agree that the Court has become politicized. But as a practical matter, as President Andrew Jackson noted, the Court can't enforce its decisions, so it relies to a certain degree on maintaining public legitimacy. With decisions like Bush v Gore, and Citizens United, they may have pushed that legitimacy to the edge. Maybe they're still willing to push the envelope; maybe they'll be more cautious.

I think it is also worth noting that the insurance industry supports the mandate. This Court has been very favorable to corporate interests, and I do not think that fact will escape them.

Posted by: reach4astar2 | October 20, 2010 5:27 PM | Report abuse

Ezra, if you think the mandate is constitutional, name one example of precedent. You can't, because there is none, except a 1791 law requiring citizens to be armed to fight the British, hope you don't think that applies. The fact is the Individual Mandate is one of the most obvious unconstitutional power grabs in our history. That fact is not changed just because there has been bipartisan support for it, all that shows is that there are ivory tower idiots on both sides.

Posted by: michaelh81 | October 20, 2010 5:48 PM | Report abuse

justin84,

you're right and all systems are gamed to an extent becuase I guess its human nature. To that extent its important that the system have (as you say) strict penalties against gaming it. that's why i find it comical that in all the government's wisdom of enacting the privacy and security laws of HIPAA back in 1996 they had 3 enforcement officials enfocing the law itself. Yes you read that right, 3. Pathetic.


And btw, gaming already runs rampant. That's why our costs are so high because part of what we pay is for those that game the system. Yes the penalties should be stiff to try to stop it or at least slow it down.

Posted by: visionbrkr | October 20, 2010 5:49 PM | Report abuse

"As for all of the slippery-slope arguments: remember that a proposed law still has to get through Congress first, which effectively means these days it has to be able to get 60 votes in the Senate (I'm not holding my breath for filibuster reform anytime soon)."

reach4astar2,

The slippery slope is over the long haul.

The 18-34 demographic is quite liberal. In twenty years, they will be the 38-54 demographic, vote in higher percentages and quite possibly be followed by another liberal youth cohort. Many current conservative elderly voters will be dead and gone.

In addition, the 'you have to eat well' stuff isn't something a Republican is guaranteed not to touch. A Republican like Bush with Huckabee's views on prevention might well do it - certainly without much Democratic opposition.

"That presents a tremendous practical check on using either the Commerce Clause or the power to Tax, especially when you consider the opportunity for constituents to communicate with their Members of Congress."

Yeah, that worked like a charm with Obamacare.

"We already have a doomsday scenario of spiraling health care costs that will bankrupt the country if we the people don't do something about it."

jeirvine,

What's permitting the costs to rise so rapidly?


"Private industry won't do something about it (they are making money hand over fist under the old system)."

Sure, that's what you get under a corporatist system. The government funnels increasing amounts of money into the sector.

"The current government of the people passed an (admittedly kludgy) law that, in part, begins to address that problem. Part of the mechanism to do that is to make sure risk is properly pooled so that we the people don't have to foot the bill for emergency care for the uninsured."

They'll just have to foot the bill for primary care and emergency care for the newly insured via subsidies. How does this change anything, other than increasing total dollars spent on health services?

"And all people can do is complain that the evil government is forcing people to do something that, at a modest price, will make us all better off and less bankrupt."

It doesn't make all of us better off or there would be no opposition.

By the way, in a high cost area a family of four making $100,000 will need to pay over $20,000 for insurance per Kaiser after health reform. No subsidies, and if they wanted a $12,000 catastrophic plan and save to cover the deductible too bad.

Posted by: justin84 | October 20, 2010 5:50 PM | Report abuse

Mr. Klein:

Trotting out the names of several Republicans who supposedly supported the individual mandate in a much different bill years ago is a phony talking point.

I'll repeat my question of a week ago: just where do you draw the line at what the federal government can do to us? Apart from the holy sacrament of abortion, you can't seem to draw a line. That's scary.

Posted by: ElmerStoup | October 20, 2010 8:55 PM | Report abuse

I think Congress can do what is necessary and proper to carry out its power to regulate interstate commerce. The growth in healthcare spending in both private and public sectors threatens the economic stability of the United States, and lack of coverage kills tens of thousands of citizens each year.

Also, let's be clear as to what the mandate is. The purchase of private insurance is the mandate. Buying private insurance is not a tax. The penalty for not doing so is the tax.

If states want to create their own system, they may do so, but (and here's the rub) it must create outcomes at least as good as the federally mandated system. If the states think they can come up with something better, they can do so.

And finally, it would help to put Obamacare in the context of what Liberalism and Conservatism (or what used to be called conservatism). "Medicare for all" financed by the taxpayer is the liberal position on healthcare reform. The Democrats passed the conservative position -- private health plans combined with the individual mandate. The individual mandate was promoted by conservatives for 20 years right up until the moment it became clear that it was going to be the avenue for reform. The 1993 Republican alternative to Hillarycare had 21 co-sponsers (19 Republicans), including '96 presidential candidate Bob Dole. It was the mainstream Republican position and was very similar to both Romneycare and Obamacare. Even if it wasn't similar, the differences would have no bearing on the constitutionality of the individual mandate.

Most of this can be traced back to the Heritage Foundation's 20 year old proposal, which you can read on their website. Of relevence:
“The second central element in the Heritage proposal is a two-way commitment between government and citizen. Under this social contract, the federal government would agree to make it financially possible, through refundable tax benefits or in some cases by providing access to public-sector health programs, for every American family to purchase at least a basic package of medical care, including catastrophic insurance. In return, government would require, by law every head of household to acquire at least a basic health plan for his or her family.”
July 20, 1990

http://www.heritage.org/Research/Reports/1990/07/Using-Tax-Credits-to-Create-an-Affordable-Health-System

Posted by: cce1976 | October 21, 2010 3:17 AM | Report abuse

"The individual mandate's problem is not the Constitution"

Ezra, as usual, is delusional.

Posted by: illogicbuster | October 21, 2010 10:58 AM | Report abuse

I'll say it again, it's not the mandate that is the problem, it is the excessive minimum plans that make it disastrous. These are plans that do not attack the insane provider cost structure, but instead reinforce and encourage it! High deductible, percentage co-pay is the way forward. Create a demand for lower cost services and the supply will emerge. Forcing high cost services to be offered at a lower price (the cram-down approach), just create the demand so that the market will emerge. We already see low cost services emerging from the pharmacies. If everyone can see a $180 doctor for the same $20 co-pay, who is going to visit a $45 LNP?

Posted by: staticvars | October 25, 2010 10:55 PM | Report abuse

Ezra,

As you said, "now the individual mandate is traveling through the courts." Any guess on when it will arrive at the Supreme Court and any way to speed up its progress getting there? The potential impact of this decision on the overall implementation of the bill could be very large so the sooner we all know the outcome the better - even if the mandate's effective date is still more than three years off.

Posted by: rhtait | October 26, 2010 2:29 PM | Report abuse

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