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Posted at 8:20 AM ET, 12/14/2010

Individual mandate not easily fixable

By Jennifer Rubin

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.

By Jennifer Rubin  | December 14, 2010; 8:20 AM ET
Categories:  Obamacare, law  
Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   StumbleUpon   Technorati   Google Buzz   Previous: Morning Bits
Next: Senate tax deal vote wasn't even close


I agree with you that Justice Kagan should recuse herself, but I worry that the political pressure from the left for her to hear the case might convince to look past her clear conflict of interest.

By the way, I enjoy is column very much, its nice to have a fresh and different perspective at the Washington post

Posted by: jsfh1 | December 14, 2010 9:04 AM | Report abuse

Kagan will not recuse herself. What I want to know is if her failure to recuse when she has clear conflict of interest is grounds for impeachment?

Posted by: chuckgengler | December 14, 2010 9:48 AM | Report abuse

Judges Divided on Health-Care Law
"Within a fortnight of each other, two federal judges in Virginia, relying on identical precedents and hearing carbon-copy arguments, issued diametrically opposed decisions on the constitutionality of the federal health-care overhaul.
Read side by side, the two rulings reveal strikingly divergent views of what the case is about—and suggest that the fate of the Patient Protection and Affordable Care Act of 2010 will rest on which depiction best satisfies the Supreme Court."

Posted by: rcaruth | December 14, 2010 10:17 AM | Report abuse

The Republicans are the ultimate hypocrites!
1. How do we pay for health care reform ?
2. How do you pay for tax cuts for the wealthy ?
(a). First attempt : threatening Social Security and Medicare Cut through the deficit panel.
(b). Second attempt : holding the desperate Hostage, say, by the Ransom.
3. Auto insurance mandate !
Under historical interpretations of the Constitution, Congress can dictate the economic activity of citizens so long as that activity will have profound, large-scale effects on the national economy.
4. Health insurance protects you PLUS all !
** Inaction cost, $9trillion over the next decade, ((Some of CBO analysis : While the costs of the financial bailouts and economic stimulus bills are staggering, they are only a fraction of the coming costs from Social Security, Medicare, and Medicaid. Over the next decade, the Congressional Budget Office (CBO) projects that each year Medicaid will expand by 7 percent, Medicare by 6 percent, and Social Security by 5 percent. These programs face a 75-year shortfall of $43 trillion--60 times greater than the gross cost of the $700 billion TARP financial bailout)).
Over the duration of healthcare debate, using the preliminary cost analysis of CBO, the reps opposed the public option stubbornly, but after the release of final score, they have been defiant on the referee.
The nonpartisan Congressional Budget Office estimates that :
Inaction cost in relation to health care reform totals $9trillion over the next decade.
Reform will reduce the federal deficit by $143 billion over the next 10 years and as much as $1 trillion during the following decade.

Posted by: hsr06011 | December 14, 2010 11:05 AM | Report abuse

Jennifer, I hope this isn't the first of 30 posts on HCR, leave that to Ezra. This thing won't be settled for years until the SCOTUS gets it, so why worry? Anything, ANTYHING but HCR!

Posted by: 54465446 | December 14, 2010 11:08 AM | Report abuse

my goodness, look how wrong one can be. hsr0611 gets it all just about wrong.

Why should we worry about paying for health care "reform"? We didn't want the "reform" in the first place. Funding it is the problem of the Democrats/liberals who promoted it. If they can't get that done then it seems that everything that was said about them and the bill is basically true: another huge boondoggle at taxpayer expense. No thanks. Pull the plug on it and it costs us nothing.

Point number two is a perfect illustration of the liberal mind set: "all money belongs to the government and they graciously let the citizens keep some of what they earned". The problem isn't paying for the tax structure as it stands. That is a complete falsehood. The problem is compelling the government to live within the means we taxpayers are willing to provide. Deficits are the result of weakling politicians making promises we the taxpayers are unwilling to keep. The public sector unions best look out. The taxpayers are angry and the sweet heart deals are about to end.

It is the height of folly to point to the abject failure of the governments' various healthcare efforts as examples of why need more government and more taxes. Basically the liberal position is that Americans should continue to pony up while the government continues to waste. I hardly think so. Americans look at the mess that the government has already made and concluded that enough was enough.

I don't put much stock in CBO analysis. Look at the lies they publish about the impact of the "stimulus" it is all just self serving hogwash from yet another self serving, over paid, indolent government bureaucracy.

Posted by: skipsailing28 | December 14, 2010 11:53 AM | Report abuse

As you well know, Kagan repeatedly refused to state that she would recuse herself on HCR. Causing no small amount of apoplexy from Sen. Sessions. And with the load bearing beam removed from your house of cards, it falls.


Posted by: FairlingtonBlade | December 14, 2010 12:32 PM | Report abuse

Because the District Court severed the individual mandate (Section 1501) from the rest of the bill, Congress will have to do something if the decision is upheld on appeal. Otherwise everyone will be free to wait until they get sick before they buy "insurance," and the insurance companies will have no choice but to provide coverage. No company will offer health insurance under those circumstances.

The downside of this decision is that it sort of forces the Dems in the direction of single-payer.

Posted by: Larry3435 | December 14, 2010 12:50 PM | Report abuse

"The downside of this decision is that it sort of forces the Dems in the direction of single-payer."

Maybe so. But until they have (1) a House that's not only majority Democrat, but majority left-most Democrat, (2) a filibuster-proof Democratic Senate, while (3) retaining the presidency, it's hard to see how single-payer can be instituted -- however far in that direction the Dems may be inclined to go.

Posted by: Jeroboam | December 14, 2010 3:31 PM | Report abuse

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