Editore"s Note
Tilting at Windmills

Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

December 13, 2010

CHEERING A VICTORY OVER THEIR OWN IDEA.... Many on the right are, not surprisingly, delighted with today's federal district court ruling on the Affordable Care Act's individual mandate. That's to be expected -- they're hoping to gut the law. The two previous legal defeats notwithstanding, today's dubious ruling represents a win for the right, at least for now.

But it seems entirely appropriate under the circumstances to remind folks, once again, who came up with the individual mandate in the first place.

This nonsense from Sen. Orrin Hatch (R-Utah) was especially jarring.

"Today is a great day for liberty," said Hatch. "Congress must obey the Constitution rather than make it up as we go along. Liberty requires limits on government, and today those limits have been upheld."

Look, I get that Hatch is worried about facing a primary challenger in 2012, and on health care policy in general, he's been a pretty shameless hack. But while he's applauding this victory for "liberty," I hope it's not rude to point out that Orrin Hatch literally co-sponsored a health care bill with an individual mandate.

Maybe he was against liberty before he was for it?

The record here may be inconvenient for the right, but it's also unambiguous: the mandate Republicans currently hate was their idea. It was championed by the Heritage Foundation. It was part of Bob Dole's 1996 presidential campaign platform*. Nixon embraced it in the 1970s, and George H.W. Bush kept it going in the 1980s.

For years, it was touted by the likes of John McCain, Mitt Romney, Scott Brown, Chuck Grassley, Bob Bennett, Tommy Thompson, Lamar Alexander, Lindsey Graham, John Thune, Judd Gregg, and many others all notable GOP officials.

My personal favorite is Grassley, who proclaimed on Fox News last year, during the fight over Obama's plan, "I believe that there is a bipartisan consensus to have an individual mandate." (A year later, Grassley signed onto a legal brief insisting that the mandate is unconstitutional.)

This is probably obvious, but in case there are any doubts on this, Republicans are cheering today's ruling, but it's not because they have a problem with the mandate. It's not even because they have a substantive problem with the Affordable Care Act itself.

This is about cheap politics. Republican pollsters no doubt told GOP officials that the mandate is a potential vulnerability to the signature Democratic polity priority, so that's where the party is focusing its attention, hoping that the public simply doesn't pay attention to the fact that they're attacking their own idea.

No one, least of all reporters covering this today, should fall for such cheap tactics.

* Correction: Dole incorporated the individual mandate into his reform plan in '94, not '96 -- he supported the policy, just two years beforehand. My apologies for the error.

Steve Benen 3:45 PM Permalink | Trackbacks | Comments (36)

Bookmark and Share

No one, least of all reporters covering this today, should fall for such cheap tactics.

Mr. Benen seems to constantly forget which country he lives in. Americans always fall for cheap tactics. Reporters are the worst of all since they can't be bothered to spend 5 minutes with Google to learn the history of mandates.

Posted by: Midwest Yahoo on December 13, 2010 at 3:52 PM | PERMALINK

I forget which law it was, but I could swear there was another one which was recently declared unconstitutional in a federal court or two.
Oh, well. I'm sure Orrin Hatch and all the rest had the same position regarding the enforcement of THAT law, whichever one it was.

Posted by: Mike on December 13, 2010 at 3:54 PM | PERMALINK

I am sorry to harp on this, but most news folks get this wrong - and details matter in this case.

In Utah, what Hatch, like Bennett before him, fears, is the STATE PARTY CONVENTION, in which a challenger [in 2010, it was Mike Lee and some other guy] outscored Bennett with > 60% of the convention delegate votes. In the republicotheocracy of Utah, getting out of the state convention is tantamount to election.

Thus, the highly democratic process means that about 2000 hard core right wingers get to select a US senator.

THAT is what Stormin Orrin is worried about.

Posted by: bigutah on December 13, 2010 at 3:56 PM | PERMALINK

These morons don't seem to grasp the fact that the ruling, which only considers the individual mandate unconstitutional, will likely destroy private insurers if all the other rules in the bill are kept in place.

The quicker for-profit plans stop being the primary coverage for all Americans, the quicker we get to a more cost-effective system.

Posted by: Holmes on December 13, 2010 at 3:58 PM | PERMALINK

Apparently it is only conceivable or acceptable for Democrats to move to the right. What is even more contemptible is that in doing so Republicans are responding to their base! Who does that?? No way this could have been anticipated.

Posted by: Michael7843853 on December 13, 2010 at 4:07 PM | PERMALINK

Just because it was previously supported by the Republicans doesn't mean it was any more constitutional then than it is now. It may be that someone *finally* read the Constitution to those cited who favored it.
The question that the court was answering is whether or not the US government can *force* someone to buy something - and fine them if they don't. If this ruling is overturned, then there is nothing stopping the US Government from *forcing* people to buy from GM - to the detriment of Ford, Hyundai, Honda, etc.

Posted by: J Heyman on December 13, 2010 at 4:15 PM | PERMALINK

Well, consistency has never been their strong suit - and why should it be? the beltway media has yet to call them out on their flip-flopping nonsense.

Posted by: fourlegsgood on December 13, 2010 at 4:20 PM | PERMALINK

Well this is good news I wonder if it applies to other government mandated programs, cause I sure am tired of paying car insurance seeing how I will never get in an accident.

Posted by: John R on December 13, 2010 at 4:22 PM | PERMALINK

@J Heyman, I don't think your example quite holds up, i.e., the government is not "forcing" people to buy insurance from UnitedHealthcare to the detriment of Empire Blue Cross, Blue Shield, Axa, Guardian, Anthem, Aetna, etc.

What the government is requiring is that one be covered by insurance, whether it be the VA, TRICARE, Medicaid, Medicare, employer-provided insurance or insurance purchased through the Exchanges.

Can any legal eagles here talk about the difference between the government requiring one to have insurance for your health, and requiring one to have insurance for your car, and why legally one is constitutional to right-wingers, but the other isn't.


Posted by: June on December 13, 2010 at 4:27 PM | PERMALINK

Let me get this straight. Steve Benen's proof that the individual mandate is a good idea is that it was a Republican idea?

Can someone please explain why D.C. Dems think that the definition of a serious idea is that a Republican thought of it first? Because my gut says Republican idea = dumb, expensive, and likely unconstitutional.

Posted by: square1 on December 13, 2010 at 4:30 PM | PERMALINK

Josh Marshall's site has an interesting tidbit....the GOPer Judge in this ruling apparently dabbles in GOP consultation...clients include McCain and a few other of the usual suspects. This is what politically based judicial appointments gets you. Remember that when the whole Health Mess goes to the Roberts court....where it will be struck down 5-4.

Posted by: T2 on December 13, 2010 at 4:33 PM | PERMALINK

Just to be clear. I am in no way defending the hypocrisy of GOP Senators. It would be jaw-dropping if it weren't to be expected.

But I find hypocrisy to be over-rated as a criticism. Whether the individual mandate is either good policy and constitutional are more important questions to be asking.

Posted by: square1 on December 13, 2010 at 4:35 PM | PERMALINK

I have repeatedly made the same point that J Heyman is making.

If the individual mandate is upheld, liberals will rue the day that they endorsed the concept.

Prepare for Republicans and Third-Way Democrats to continue to chip away at the social safety net. In five years, the Democrats will cut a deal to abolish Social Security and replace it with an individual mandate to purchase "retirement insurance" through Goldman, Citi, or BofA. Then Benen will be blogging about how the deal was the "best deal that Democrats could probably be expected to cut and doesn't differ in principle from the individual mandate that liberals embraced when ACA was passed."

Shoot me now.

Posted by: square1 on December 13, 2010 at 4:42 PM | PERMALINK

square 1, the individual mandate was a dumb idea, it is a dumb idea, it will always be a dumb idea. I am pretty sure it is constitutional, but with the current Supreme Court who knows? I am hoping they find it unconstitutional and force congress to adopt a consitutional alternative like the public option or medicare for all.

Without the individual mandate insurance companies will go out of business in droves.

Posted by: Ron Byers on December 13, 2010 at 4:45 PM | PERMALINK

June, car insurance is required by states, not the federal government.

States (like Romney's Mass.) can mandate health insurance (depending on their own constitutions). Conservatives say the feds can't.

Also, if you don't drive a car, you don't have to buy car insurance. ACA requires everyone to have health insurance (because, as the feds tried to point out to Hudson, everyone WILL use the health care system, regardless of their protestations to the contrary).

Hudson is apparently right that there is nothing else quite like the mandate, but virtually any 20th century judge (except for Hugo Black and Robert Bork) would have had no trouble finding the commerce clause sufficiently broad to cover the mandate.

Times have changed.

Posted by: harokin on December 13, 2010 at 4:46 PM | PERMALINK

Holmes: "...will likely destroy private insurers if all the other rules in the bill are kept in place."

Hmm, then this might be a good thing!

Posted by: Speed on December 13, 2010 at 4:48 PM | PERMALINK

No other industrialized countries(you know, the one who provide quality, universal coverage a fraction of our health care cost)depends on for-profit plans foe their primary insurance coverage. Because they cam to the conclusion, which is obvious to anyone not taking political contributions form insurance companies, that insurance company profits are an unnecessary cost.

For profit plans are fine for supplementary coverage, but as a primary plan it is insanity.

Posted by: Holmes on December 13, 2010 at 4:48 PM | PERMALINK

My personal take on the constitutionality question is that it cannot be answered with confidence.

Simply put, there is no historical precedent for the individual mandate. The analogies that proponents have drawn (e.g. to auto insurance or to the government requiring citizens to purchase provisions to serve in a militia) are so dissimilar to the current situation that it would be trivial for a court to draw a legal distinction and declare the individual mandate unconstitutional.

On the other hand, I am unaware of any case precedents that clearly would require the individual mandate to be declared unconstitutional.

I am also persuaded by the fact that the individual mandate is relatively unique. If it were constitutional to require people to buy goods or services as a condition of citizenship, wouldn't it have been done before? That suggests that it is beyond the scope of what prior generations thought the government could require. Or maybe the novelty just suggests that the individual mandate is a really bad idea.

In any event, I'm pulling for SCOTUS to strike it down.

Incidentally, from a purely political standpoint, all liberals should be pulling for such an outcome. If SCOTUS scrapped the entire law, what would happen? Clearly, the status quo would be unacceptable. That means that the remaining policy choices would be single-payer, Medicare buy-in/public option, or aggressive industry regulation and government price-setting. All of which are more liberal ideas that would likely lower actual health costs more than the current ACA law.

Posted by: square1 on December 13, 2010 at 4:59 PM | PERMALINK

Square1, in the real world, everyone will pay for at least some medical services over the course of their lives, except maybe for some Xtian Scientists. Whether they pay for that through private insurance that is universally required and so keeps costs low for everyone or through other means (self-payment, emergency rooms, what have you) clearly affects interstate commerce as that clause has been understood for the last 100 years. What Hudson is doing is 1) ignoring what happens in the real world) and 2) following the 19th century conception of the commerce clause. He is also treating the mandate as end in itself rather than as a Necessary and Proper means to the end of universal coverage that preserves to the utmost private ordering. It is entirely possible that the 4th Circuit and the Supremes will follow up, but that result would be revolutionary and disastrous for liberals.

Posted by: harokin on December 13, 2010 at 5:20 PM | PERMALINK

Square1, Benen's point was that it being a Republican idea made them hypocrites now for calumniating it so strongly. (Also, that argument of "if even *they* liked it, it can be so _____ as some people say" - which happens to be a shaky argument, but it's out there.) But Ron Byers has a point, this isn't the ideal proposal that should come from Democrats anyway. They should have fought for the Public Option, which indeed and ironically would have made the whole thing more constitutional (and that's ironically part of why cons opposed the PO - they *didn't* want a fully constitutional HCR bill, the better to attack later. Cynical and dishonest ...)

Posted by: Neil B. on December 13, 2010 at 5:20 PM | PERMALINK

[argument .... it can't be so bad as ...]

Posted by: Neil B - correction on December 13, 2010 at 5:24 PM | PERMALINK

Harokin, nobody questions that the government has the right to "regulate" the health care/insurance market under the commerce clause. But that doesn't mean that the government has unlimited powers. For example, in doing so, the government cannot violate other provisions of the Constitution. For example, the government cannot require all blacks to buy insurance, because it would violate the 14th Amendment. Similarly, there are 1st Amendment restrictions on how much the government can regulate corporate "speech."

I see two legitimate Constitutional issues with the individual mandate, one has been raised repeatedly, and the other I have not seen argued.

First, as many people argue, even under the Commerce Clause, the government may not have the power to mandate that you purchase a service. Arguably, "regulation" does not extend to forcing people to purchase a service, just regulating it if they do make that choice. Again, not a clear legal issue.

Second -- and I have not seen this issue analyzed by constitutional scholars -- I think an argument can be made that the bill delegates exclusively governmental powers to private entities, in violation of the Constitution.

IMO, if the government mandates that you pay a private entity a "premium" and there is no option for the individual then the "premium" is simply a tax by another name. The government is simply levying a tax and then granting the private entities a license to collect the tax.

So, what is the problem? Well, any tax must be passed by Congress and Presented to the President for signing. No law can grant Blue Cross the right to raise or lower taxes. I would argue if -- and this is a big if -- if insurance premiums are de facto taxes then the entire system violates the Presentment Clause.

Posted by: square1 on December 13, 2010 at 5:37 PM | PERMALINK

Grassley: "My personal favorite is Grassley, who proclaimed on Fox News last year, during the fight over Obama's plan, "I believe that there is a bipartisan consensus to have an individual mandate." (A year later, Grassley signed onto a legal brief insisting that the mandate is unconstitutional.)"

I wonder if you can have yourself declared legally insane (for tax purposes) if you self-attest you voted for this loon more then once.

Posted by: max on December 13, 2010 at 5:58 PM | PERMALINK

Square1, just to be clear, I really dislike the mandate and wish they had gone another route. That said, you say "..."regulation" does not extend to forcing people to purchase a service, just regulating it if they do make that choice." What the Obama administration argued (and I think is clearly right) is that people are going to "buy" healthcare, we are just regulating the way they make that purchase. Some 23-year-old may think he can do without insurance, but if he gets some injury you can bet he'll be in the urgent care clinic/emergency room immediately, and we'll all be paying for it in a far less efficient method than envisioned by the mandate.

Posted by: harokin on December 13, 2010 at 6:00 PM | PERMALINK

Harokin - thanks for your reply.

Posted by: June on December 13, 2010 at 6:08 PM | PERMALINK

Democrats love policy.

Republicans love politics.

Guess who wins?

Posted by: Joe on December 13, 2010 at 6:38 PM | PERMALINK

Diane Sawyer announced at the top of the ABC News that “a federal judge says it’s unconstitutional to require health insurance”.

It wasn’t until 10 minutes into the broadcast that they aired video of the White House’s Nancy-Ann DeParle saying that judges had previously dismissed FOURTEEN lawsuits against the healthcare bill.

Posted by: Joe Friday on December 13, 2010 at 6:52 PM | PERMALINK


How is a mandate to purchase insurance much different than a federal income tax that ultimately pays, for instance, for the construction and maintenance of interstate highways?

How is the mandate different than the mortgage interest rate deduction that functionally penalizes renters for "opting out" of home ownership?

In terms of the forced transfer of private funds/property to another private entity (which apparently is what is viewed as the sticking point), how is the mandate different than application of eminent domain?

What specific provision of the Constitution does the mandate offend? Yes, I read your argument re: the Presentment Clause, and while interesting, I cannot see it gaining traction, simply because while "rates" may change, the terms/provisions of the bill do not--hence no violation. Leaving that aside, what is the other issue?

Posted by: Mike Lamb on December 13, 2010 at 7:03 PM | PERMALINK

At some point in time square1 we as a country will have to address the health insurance mess befor we actually do become a third world country. Constitutional arguments aside if we mire ourseleves into a depraved libertarian nightmare in the name of the constitution then god help us that can't move to another country.

Posted by: Gandalf` on December 13, 2010 at 7:26 PM | PERMALINK

Good questions, mike lamb. The difference between a mandate and a tax is that if the government needs to raise a tax to generate additional revenue, both houses of congress would have to pass a bill and the president would have to sign it. But if my insurance carrier wanted to raise rates, they could just do it.

As a hypothetical, imagine a bill that created a single-payer system funded by a supplemental income tax. Now imagine if the government contracted out the actual administration to a private entity (let's call it Health, inc.).

If the bill said either of the following it would unquestionably be held unconstitutional: "1. the supplemental income tax rate shall be set by the President each year" or "2. The supplemental income tax rate shall be set by Health Inc. Each year."

Given the above, I have grave concerns about a privately levied "premium" mandated by law that is not constrained by constitutional limits on delegation of congressional power.

Posted by: Square1 on December 13, 2010 at 7:28 PM | PERMALINK

@Mike Lamb: There is a constitutional amendment that allowed the Income Tax to come into being (16th Amendment).
Eminent Domain was only recently (2005) extended to gov't taking and giving to a 3rd party - specifically to enhance the tax revenue of said gov't. That SCOTUS action has lead to many states altering their constitutions to make that illegal.
The mortgage deduction is such that you are not fined for NOT buying a house, you don't derive the tax benefit of owning one.
The Healthcare law, as passed, applied a penalty for not doing something.
Can you cite another instance where the gov't penalizes people for non-participation?

Posted by: J Heyman on December 13, 2010 at 8:33 PM | PERMALINK

JH, that's why it was so important to have either Single Payer or Public Option. Really, instead of being made to by from some entity, people should be taxed at some rate (partly so each person pays *a percentage of income for health insurance*) and then just given the service, like already done for Medicare. The plan could have still employed the HI companies, just as contractors doing the administration and providing variants etc. So "ironically" if they dolts have followed the progressive line, it would have been *more* constitutional. But they didn't and "couldn't have" because of the political indebtedness and triangulation.

Fine minds make fine distinctions.

Posted by: neil b on December 13, 2010 at 10:22 PM | PERMALINK

I think it's very likely the Supreme Court will overturn the law. For starters, you've got four automatic votes against it, on political grounds. Then, you've the got the fact that, constitutionally, it seems pretty fishy at best. (If the government can mandate this, why can't they mandate that you buy a Chevy or whatever?)

So where does that leave is?

One possibility, the rest of health care bill stays in place, private insurers quickly collapse, and chaos. Not very likely. Instead, the Congress will have to repeal most of the rest of the bill before it goes into effect, and the President (elected in 2012, whoever it is) will have to sign off on that.

The possibility of some sort of Medicare-for-all coming out of this is zero.

Most likely, back to the status quo. We can continue to sustain this for a while.

If the Republicans get in 2012, they will probably mandate that health insurance companies can operate nationally. Likely this will result in North Dakota or Mississippi or wherever being captured by the health insurance companies, who then set up shop in that state. State insurance commissioners will no longer have the right to stop them from providing to citizens in their states.

Likely this will result in a race to the bottom, with employers drifting toward the insurance companies who adopt the most stringent version of "no claim is paid, period, until we get a letter from a lawyer, at least".

This will probably slow the growth of health insurance costs considerably. The health care provision industry won't much like it, though, and neither will many health care consumers, after awhile.

Well, by then, it will be 2016 at least, so we'll have to see what's what then.

Posted by: herostratus on December 13, 2010 at 11:03 PM | PERMALINK


Can any legal eagles here talk about the difference between the government requiring one to have insurance for your health, and requiring one to have insurance for your car, and why legally one is constitutional to right-wingers, but the other isn't.

The difference isn’t between health insurance and car insurance. The difference is the federal law called EMTALA. It requires that anyone who needs medical care or emergency care, to be able to go to a hospital emergency room and receive treatment without being denied. These medical costs are shifted to all of the rest of us in the form of higher medical bills and higher health insurance premiums.

This why healthcare is unlike any other comparison that others are making. There is no federal law that requires GM to give you a car if you don’t have one, therefore the federal government could not force you to purchase a car from GM as in J Heyman’s faulty example.

Posted by: Joe Friday on December 14, 2010 at 12:30 AM | PERMALINK

Square...if the bill was such that the tax wasn't indexed to changing insurance rates, it wouldn't be a problem.

JH...easy...selective service. You are really arguing semantics of penalizing behavior vs. encouraging behavior (as in the mortgage interest deduction). I would also disagree that eminent domain only recently extended from public to private. It was heading in that direction for some time (rightly or wrongly).

Posted by: Mike Lamb on December 14, 2010 at 11:08 AM | PERMALINK

Why did it take Keith Olbermann and MSNBC to tell me this? Why didn't the lamestream media not report it right up front?

Posted by: cokids on December 14, 2010 at 5:59 PM | PERMALINK



Read Jonathan Rowe remembrance and articles
Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

Advertise in WM

buy from Amazon and
support the Monthly