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Posted at 4:13 PM ET, 12/29/2010

A guide to the legal arguments over the individual mandate

By Ezra Klein

Kevin Sack has a clear and useful overview of the legal arguments over the individual mandate that I've seen.

As a sort of disclaimer, readers should know that I consider the legal arguments to be little more than motivated skepticism: If the national expansion of RomneyCare had been signed into law by President Romney, it'd be having no trouble with conservative judges and political figures.

But the same can, of course, be said about policy arguments, which are often chosen at random to support the speaker's political preferences. In fact, the same can be said of the individual mandate, which was a conservative idea before Democrats adopted it and conservatives realized they either had to abandon it or agree that President Obama was proposing sensible legislation that echoed bills that moderate Republicans had been pushing for two decades.

This is what makes covering policy frustrating.

By Ezra Klein  | December 29, 2010; 4:13 PM ET
Categories:  Health Reform  
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I appreciate that you at least point out that policy positions change for convenience and for politically motivated reasons. It is hard to find many professional journalists that do.

Posted by: will12 | December 29, 2010 4:51 PM | Report abuse

The problem with the mandate, and I have been saying this since it entered the national debate, is that there is a lot of moral opposition to the individual mandate.

Which is to say, that for many of us, our lives have been horrendously negatively impacted by insurance companies denying us health insurance, and with that denial, a denial to meaningful health care.

I liken the mandate to purchase insurance from the same private corporations that have repeatedly denied me and abused me akin to the government ordering a woman or man to reenter into a relationship with an abusive spouse or to live with their rapist. It is an immoral thing to ask of people.

Which is why the public option made the individual mandate palatable to those of us who've been without insurance for years.

Insurance companies have made my life hell for many years. Now forcing me into a contract with them is, in my mind, a fascist demand. A collusion between government and corporations to force people into a contract with a private corporations. And to top off the insanity, the government will use the IRS to enforce it.

Who needs a legal argument against the individual mandate, when a moral one will do just fine?

Posted by: jc263field | December 29, 2010 4:59 PM | Report abuse

"If the national expansion of RomneyCare had been signed into law by President Romney, it'd be having no trouble with conservative judges and political figures."

Absolutely. Most Republican politicians aren't against statism on principle. If PPACA were signed by President Ron Paul, it would go down in flames with libertarians.

I don't even think motivated skepticism is what we are seeing. Most Republicans are motivated by political/personal gain and little else.

For that matter this describes many Democrats, as evidenced by the failure to put climate change legislation ahead of immigration for political reasons, denouncing the abuses of civil liberties under Obama more lightly (if at all) than under Bush, etc.

Now, these politicians certainly have other values which they take into account, but these values are trumped quite often by personal/political interest.

The principled politicians - relatively speaking - tend to sit at the extremes of the ideological spectrum (Bernie Sanders, Ron Paul).

Posted by: justin84 | December 29, 2010 6:09 PM | Report abuse

This shows there are no moderate republicans.

I'd like someone to do some research and count the number of moderate GOP votes and compare that to all the rest.

Posted by: lauren2010 | December 29, 2010 6:56 PM | Report abuse


I know you're flummoxed by this individual mandate because you don't have any rational arguments against it. You're left with ad hominens, attackiing motives.

Why didn't Obama propose a mandatory insurance TAX that could be refunded if the individual proves they purchased health insurance? That would have been the simple way to avoid legal entanglements of the individual mandate.

Obama didn't do this because he was dishonest. He couldn't impose a tax and keep his pledge that he wouldn't raise taxes on the middle class. So he comes up with the individual mandate as his cowardly and clever alternative.

You abet his dishonesty and political sleight of hand by attacking political motives instead of sticking to the facts.

The fact is that liberals like you laugh at the notion of enumerated and limited powers restraining federal power. Just because RINOs like Romney, Bush, and Rove share your contempt for this Constitutional doctrine doesn't the opponents of the individual mandate are disingenuous. Just because Scalia thinks that growing marijuana at home for personal consumption falls under interstate commerce regulations doesn't mean he's the bees knees for the rest of us.

The individual mandate will be declared unconstitional. This is a bridge too far, even for Kennedy. Scalia will recant his earlier mistake.

Posted by: ElGipper | December 29, 2010 7:19 PM | Report abuse

It is sad how politicized debates about important policy can become. As you point out, Ezra, if President Romney or McCain had promoted the exact health care reform bill Obama did, I suspect almost every Republican would have backed it, and a lot of Democrats would have opposed it (I haven no doubt the more left-wing Democrats would have been up in arms over it).

The conservative judges on the Supreme Court have no problem taking a wide reading of the powers granted to the government under the commerce clause when it involved a Republican administration making the drug seizures in Raich, but they're also quite happy to cut against precedent and restrict those powers when it was a Democratic administration trying to ban guns in schools in Lopez. I'm sure they'd have happily upheld the individual mandate under Romney, but they'll probably strike it down under Obama. And the same goes for some of the liberal judges too, who had to flip-flop to take the dissenting sides of both cases I've just mentioned.

Is this really the way things are supposed to work?

Posted by: bigmandave | December 29, 2010 9:37 PM | Report abuse

First of all, Romney is a RINO. And how is his healthcare program working out these days in Massachusetts?

If Obamacare was so good, why didn't the Democrats campaign in this past election on it's "merits?"

Who is going to pay for the encumbering bureaucracy created by Obamacare?

Further, Obamacare is unconstitutional.

James Madison referring to a bill to subsidize Cod fisherman said to the First Congress:

"If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers to every State, county and parish and pay them out of the public treasure; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, everything from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress…..Were the power of Congress to be established in the latitude contended for, it would subvert the very foundation and transmute the very nature of the limited government established by the people of America."

Posted by: janet8 | December 30, 2010 12:45 AM | Report abuse

You guys should stop complaining because, one the health care we have now isnt as good as it was supposed to be. also the law has just been signed so give it some time. so if u want to say u have the right to choose tell that to ur congress men or state official. If you do not have insurance and need one You can find full medical coverage at the lowest price search online for "Wise Health Insurance" If you have health insurance and do not care about cost just be happy about it and trust me you are not going to loose anything!

Posted by: calvincarter | December 30, 2010 1:12 AM | Report abuse

the individual mandate is clearly within Congress' powers under the Commerce Clause, the Necessary and Proper Clause or the Power to Tax. Health care is the largest industry in the US with corporate profits in the billions. Health care is provided to hundreds of million Americas each year.It clearly is a national market. As such, Congress has the plenary authority to regulate economic activities the substantially affect that market. An individuals engages in one or more health care activity every day:, self insure, buy insurance or freeload off the taxpayers. Each is an economic activity that in the aggregate substantially affects interstate commerce. This decision is not different than the ones made by businesses every day with respect to their employees. This decision is substantially more of an economic activity that growing wheat or marijuana for personal consumption. The idea that deciding to self insure or free load is not an economic activity is ridiculous.
Furthermore, the individual mandate is clearly a necessary and proper means to a legitimate end which is the regulation of the insurance industry. Just as creating the Bank of the US was valid means to an end even if it was not a valid end in and of itself, so is the individual mandate.
Furthermore , the individual mandate which is contained in the tax code deliberately, is clearly a tax on the economic activity of self insurance. As a revenue raiser, it meets the definition of a tax and judicial decision to reclassify it as not a tax is judicial activism of the worst kind taking the court back to the disgraced Lochner era.

Posted by: cstern1 | December 30, 2010 11:47 AM | Report abuse

People decry the individual mandate because "the government is forcing us to buy insurance."

So how do those folks feel about being taxed to support Medicare, and all the other government-financed health care? What about all of us who pay those taxes, but don't have access to public-option health care plan? If we want insurance (and don't have an employer who provides it), we must pay the exhorbitant and ever-rising private rates, or go without.

That's the biggest travesty in all this -- those who pay taxes to support other peoples health care, and can't get any themselves.

Posted by: jshafham | December 30, 2010 1:12 PM | Report abuse

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