Individual mandate not easily fixable
Ezra Klein argues that the death of the individual mandate in ObamaCare would not be fatal to the bill because the mandate can be restructured. There are two problems with this, one political and one legal.
On the politics, within weeks, Republicans will have a majority in the House and more than enough to filibuster any "fix" in the Senate. That balance could change, but not anytime soon. To be blunt, there's no way, unless the Democrats recapture the House and regain a filibuster-proof majority in the Senate, for the mandate to be resuscitated.
The second is the legal issue. The opt-out suggested by Paul Starr and cited by Ezra doesn't fix what's wrong with the mandate. Judge Henry Hudson ruled that Congress lacks the constitutional authority, under the Commerce Clause, to require people to buy insurance. And the court held that the Necessary and Proper Clause provided no help to the government, nor did the argument that the mandate survives under the power of Congress to tax.
University of Chicago law school professor Richard Epstein explains:
The federal government may regulate how people participate in the market, but it cannot make them participate in the market. For if it could be done in this case, it could be done in all others.
In making this position, the district court rejected the view that the individual mandate was a necessary and proper offset to the congressional decision to require all insurers to take customers without regard to their preexisting conditions. In the government's view, the two issues are the opposite side of the same coin. If the system is going to give some individuals a subsidy, it must find a way to tax someone else to provide that subsidy. Hence the individual mandate.
In short, the constitutional problem here is fundamental: If Congress tries to compel you to buy health insurance, then the law is unconstitutional. The court determined that "an individual's personal decision to purchase -- or decline to purchase -- health insurance from a private provider is beyond the historical reach of the Commerce Clause." In essence the court held that there is no power which allows Congress to compel individuals to engage in interstate commerce. Congress, I suppose, could so water down the requirement to buy insurance that it might pass muster under the district court's analysis, but then the mandate would be rendered toothless and the basic structure of the bill would collapse.
I agree with Ezra, however, in that this is not the final word on the subject. That likely will rest with the Supreme Court, whether the case goes directly there, as Republicans are urging, or whether it stops first in the 4th Circuit (which, I would venture, is very likely to uphold the district court ruling). But here's the tricky part: Justice Elena Kagan, having served in the Obama Justice Department, is surely to recuse herself. With the "liberals" one judge down, even a Kennedy vote to uphold the individual mandate would presumably result in a 4-4 tie. And guess what? If there is a tie, the lower ruling stands. In other words, this is really bad for ObamaCare advcoates.
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