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The Constitutionality of the Individual Mandate
Let's get this out of the way right now. It doesn't matter if the individual mandate is constitutional, only that there are five right-wing justices on the Supreme Court and only four on the left. Anyone who is around my age saw the court lose any pretense of non-partisanship in Bush v. Gore. Anyone who's a little older probably saw it in some other case. Anyone who's a little younger is seeing it right now all over the federal judiciary. The idea that the courts were once this bastion of objectivity is probably as true as the idea that professional baseball players didn't use performance enhancing drugs before the 1990s. I'll outsource my cynicism to John Cole:
I’m really completely uninterested in the actual arguments being made in the ACA case before SCOTUS. It just doesn’t matter what the law is, as these guys have proven time and again that they’ll do whatever they want. I also find it amusing that people think Roberts cares about the impressions created by a divided court. He doesn’t. None of them do. There is no doubt in my mind that Alito, Thomas, Scalia, and Roberts will do whatever they think will help conservatism the most, precedents and outcomes of their actions be damned.
For my cynical, non-voting friends, this is why you should vote in federal elections. This is also why Obama not getting his appointments through the Senate is a big deal.

The question of whether the law is constitutional is moot, but logically interesting. The argument against the law is that Congress doesn't have the power to tell you have to buy something. Opponents are fond of asking when the federal government has ever required you to buy something. But Congress does have the power to regulate commerce. I don't think anyone would argue that overall the Patient Protection and Affordable Care Act is an attempt to regulate commerce. The individual mandate is simply a mechanism for regulating the insurance industry. Opponents are viewing the mandate in a vacuum, proponents as part of a larger law. Given that, in order to call the mandate unconstitutional I think there needs to be language in the constitution that explicitly forbids it. If the law had a provision establishing a state religion that would obviously be unconstitutional. I don't see a similar problem with the individual mandate, so I think it's constitutional. But, like I said, I think the law will get struck down in an epic act of judicial activism (which is now OK).

The saddest part of the debate is that "Obamacare" was the Republican solution to health care reform from 1994 until 2008. That the individual mandate went from an idea that the entire political establishment would have agreed was an improvement over the status quo to an unconstitutional takeover of health care in 10 years is a little hard to believe.
Don't forget we all pay into Medicare and Social Security. Insurances for the future we are required to pay for now.

Posted at 3/29/2012 1:12:17 AM by Vivek


Ah, but those are implemented as taxes. The ability to tax is constitutionally ironclad. It's ironic,through the required purchase of private insurance, Dems doomed this to failure. If they had set it up as being funded by a new tax -- single-payer healthcare -- then the constitutionality would be easier to defend. At that point, it would be a quasi-public thing like Amtrak or the Post Office. But that would be all socalisty, like <shiver> Sweden or Canada or something.


Posted at 3/29/2012 6:16:58 PM by doug


 
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