Three Common Defenses of the Individual Mandate

January 21, 2011 § Leave a comment

The Set Up:

Do Liberals believe that the individual mandate provision of the health care reform law is constitutional?  I don’t think they do.  If they did, I think they’d come up with better defenses for it.

Ezra Klein argued in the Washington Post that the individual mandate is constitutional.  His argument?  That Senate staffers vet the constitutionality of a law before it’s brought for vote.  So much for the wisdom of the separation of powers.  In another article, Klein argues that conservative-led challenges to the individual mandate are purely political.  Klein points to a number of Republicans that co-sponsored a 1993 health care bill that included an individual mandate as proof that Republicans only view such a mandate as unconstitutional when liberals write the law.  Klein seems to truly believe that the individual mandate is constitutional, and alludes to a belief that the only way it could possibly be found unconstitutional by the Supreme Court would be due to conservative activism.

The LA Times editorial board also seems earnest in their belief that the individual mandate is constitutional.  Their argument is really interesting:  The mandate to buy health insurance doesn’t force people into the health care market, but people are already entering the market to seek care, and so they are subject to regulation.  The editorial cites District Judge George Steeh’s view that, by choosing to “attempt” to pay for services later, the uninsured shift billions of dollars in costs onto the insured.

Andy Green at the Baltimore Sun says the mandate to buy health insurance is nothing more than a tax credit, no different than the tax credit you get on a mortgage, or for student loan interest.

The Response

I’ve read lots of liberal responses to the idea that the individual mandate is unconstitutional, and the they all fall into one of the three general themes illustrated by the three stories above.  So, let’s see how they stand up.

The answer to the “Republicans are hypocrites” argument:  Who cares?  Whether or not Republicans are hypocritical does not have any impact at all over whether the individual mandate is constitutional.  Hypothetical arguments about whether Republicans would have challenged the law under a President Romney are no more pertinent.  Either the mandate is constitutional, or it isn’t.  Liberals who talk about Republicans being hypocritical are admitting that the law is unconstitutional.

Next argument:  The individual mandate doesn’t actually force people into a market, it just forces responsibility (this argument sometimes takes the form of, “states already force people to buy car insurance”).  We have to split the answer to this one into two parts:  A) the argument that people will eventually make use of the health care system, and so they are already in the market, smacks of prior restraint.  To be the same, state requirements to carry car insurance would apply to people who don’t own cars – because they might eventually own a car.  B) I sort of jumped the gun in the first answer, but requirements to buy car insurance are not federal, so the federal Constitution isn’t applicable.

Next argument:  The mandate is basically a tax.  Well, hell, I guess it is basically a tax.  Of course, that doesn’t make it constitutional to force people to buy a product under penalty of law.  Could the government have encouraged people to buy insurance by offering a tax credit to do so?  Yes, they offer tax credits for all sorts of behaviors.  But, that’s not what they did, here, and the fact that they’ve forced a purchase on individuals is beyond the pale.

Liberal arguments in defense of the individual mandate are so weak, that I actually wonder if the entire concept was just a ruse to push Republicans into a political trap in which they actually find themselves making the single payer option acceptable.  Adam Chandler and and Luke Norris think that’s what’s going to happen.



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