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Posted at 10:00 AM ET, 12/27/2010

The difficulty of defending the conservative position on the individual mandate

By Ezra Klein

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.

By Ezra Klein  | December 27, 2010; 10:00 AM ET
Categories:  Health Reform  
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The worrisome thing here is that the current conservative faction on the Court is so responsive to conservative shibboleths. Best (worst) example is the gun "rights" decision which abandoned centuries of unvarying precedent for NRA orthodoxy.

I'm pretty sure that Roberts, Scalia, Thomas and Alito are more concerned with preserving their conservative street-cred than worrying about what the law is. So that's four against individual mandate now that the ayatollahs of the right have issued their fatwa. We just have to hope for a good decision from Kennedy.

Posted by: jtmiller42 | December 27, 2010 11:11 AM | Report abuse

Ezra- please explain this:

Answer the President's concerns, and how the Massachusetts experience does anything but confirm his statements.

Also, it would be useful to hear your explanation about how the President said this:

but the DOJ is attempting to say the opposite.

Posted by: azhealer | December 27, 2010 11:25 AM | Report abuse

conservatives that take Mr. Roy's position are in general idealogues who don't understand the mandate in practice. Its proven to work to ensure coverage (not affect cost though but hey that wasn't its intent was it).

Once its struck down the SCOTUS (which I fear it will) they had better put something as effective in its place so that people don't game the system as they have been doing for years in the Northeastern states with very limited pre-ex but no mandate (obviously MA notwithstanding).

Posted by: visionbrkr | December 27, 2010 12:21 PM | Report abuse

This is a lonely battle Ezra, but you have to do it; that is your destiny in this affair.

Question - will you run 'interviews' of some exceptionally strong legal minds on this question on your blog? That will be very helpful to readers and Americans in the end.

Posted by: umesh409 | December 27, 2010 12:23 PM | Report abuse

The GOP is just following the 6th, 8th & 10th Rules of Bureaucracy:

6 — When history disagrees with your analysis, either ignore it, disclaim it, rewrite it, or all three.

8 — If the reality you face doesn't help you, make up your own version, then angrily denounce and deny the old one.

10 — When principle collides with politics, politics wins.

By the way, the Democrats use the same rule book.

Posted by: tomcammarata | December 27, 2010 1:47 PM | Report abuse

What I have found amusing is the liberal commentators that were complaining about being mandated to buy a policy without a public option.

I think the bigger hole is in defining precisely what is mandated and why. If I were a billionaire, it might make no sense for me to get insurance. For my auto insurance, I can get a high deductible plan. Why is this about to be banned by the health care law?

Posted by: staticvars | December 27, 2010 4:12 PM | Report abuse

"Lots of things are bad policy, but they're not unconstitutional"

I'd argue that bad policy is tautologically unconstitutional. Bad (non-defense) policy is assumptively detrimental to the general welfare; and that which does not support the common defense or general welfare is unconstitutional even in the broadest reading.

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Posted by: sdgashasdg | December 28, 2010 11:15 PM | Report abuse

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