The difficulty of defending the conservative position on the individual mandate
Avik Roy, a conservative health-policy wonk, mounts a valiant effort to rationalize the multi-decade period of conservative affection for the individual mandate with the current conservative consensus that the mandate is an unconstitutional monstrosity -- but it's not an easy task.
As Roy admits, the arguments he offers are "policy points" -- they're reasons to think an individual mandate won't work as well as Mitt Romney and the Heritage Foundation thought it would five years ago. We could go back-and-forth on them, but they're beside the point: Lots of things are bad policy, but they're not unconstitutional, or philosophically alien. And the question is when the conservative movement went from supporting the individual mandate to considering it, in Sen. Jon Kyl's words, a “stunning assault on liberty.”
The timeline on this is tough: The individual mandate emerges in the 1990s as part of the Republican alternative to ClintonCare. It continues attracting support from conservatives late into the 2000s, when Mitt Romney uses it in Massachusetts, and eight or nine conservative senators co-sponsor it as part of the Wyden-Bennett package. In June of 2009, Sen. Chuck Grassley tells Fox News that the individual mandate is just "individual responsibility. And even Republicans believe in individual responsibility." In October 2009, Olympia Snowe votes for an individual mandate in the Senate Finance Committee's bill.
But Grassley is facing a conservative primary challenge in Iowa. Snowe eventually abandons the health-care bill under extreme pressure from the Republican base. Wyden-Bennett never attracts much support, and Bennett finds himself facing (an ultimately successful) primary challenge at home. And so, on Dec. 23, 2009, Sens. Grassley, Snowe and Bennett join their colleagues in voting for a point of order (pdf) calling the mandate "unconstitutional."
Perhaps hypocrisy in pursuit of liberty is no vice, and consistency in service of President Obama's political fortunes is no virtue. But the individual mandate had significant conservative support from 1993 to the summer of 2009 and became, among conservatives, an unconstitutional travesty only in the fall of 2009. There's no policy argument that accounts for that change. Nothing new was discovered about the Constitution, or about the individual mandate.
What changed was that Obama and the Democrats were getting closer and closer to passing the health-reform bill, and conservatives found they didn't have the votes to stop it. That meant they needed the Supreme Court to do it for them. And the individual mandate, which was both the least popular part of the policy and one of the few that wasn't specifically present elsewhere in the federal government, was their best chance. I could see an "ends justify the means" argument for this. But there's no real way to wipe out the reality of the means.
| December 27, 2010; 10:00 AM ET
Categories: Health Reform
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