August 16, 2011

Obama acknowledges the inevitable

Reuters reports that the President has acknowledged what for many others has appeared inevitable for more than a year-and-a-half:
"If the Supreme Court follows existing precedent, existing law, [the PPACA individual insurance mandate] should be upheld without a problem," Obama said in Minnesota during a town hall discussion. "If the Supreme Court does not follow existing law and precedent, then we'll have to manage that when it happens."
Hopefully "managing that" will not include accusing the Supreme Court of not following existing law and precedent, as those accusations would be wildly incorrect. In any case the Supreme Court is not bound to follow existing law or precedent, the former if it's unconstitutional and the latter because it just doesn't have to. What it is bound to follow is the text of the Constitution, where Obama apparently believes "regulat[ing] commerce ... among the several States" means regulating the behavior of individual citizens who aren't even participating in the commerce.*

The mandate is good policy and makes perfect economic and rational sense. Unfortunately it's bad law and exceeds Congress's regulatory authority. Not to mention violating a first principle of American constitutional government: that the federal legislative department is designed with cognizable limits. It was a big mistake to rely on the Interstate Commerce Clause to justify this policy. But somehow somebody or other decided this was a gamble with decent odds.

The scenario unfolding toward the conclusion of the U.S. Supreme Court's next term in late June, 2012 — which more and more people are beginning to perceive, including even some liberals — presents Obama's worst nightmare, of which he has owned the majority share of credit:
Obama has championed the individual mandate as a major accomplishment of his presidency.
He might want to stop doing that if he hasn't already.

Meanwhile, liberal denial remains firmly entrenched:
Orin Kerr, a George Washington University law professor, predicted Chief Justice Roberts and Justice Kennedy both would likely end up voting to uphold the individual insurance mandate.
And he's got to be hallucinating.

* All it takes is "mental activity," according to this court.


John Casper said...

Thanks. Well Point/Blue Cross was point for the health insurance oligopoly in drafting AFA/Obamacare. Among other inequities, it forces the middle class to buy really crappy coverage. We need a public option now. We need to move to Medicare-for-all.

Anonymous said...

National healthcare was suppose to cover everyone and save everyone money. Rather, we got 2700 pages of goobly gook with what appears to be an unconstitutional provision.

It would seem to me with all the lawyers we have in Washington that someone could have figure out that the American people would oppose an out of pocket mandate but would support a minimum income mandate without all the other BS. Did they really think people would support a provision that could someday kill them?

It also seems to me that National Healthcare needs to be simplified and privatized through 3rd party adminsitrators who can save costs with competitive quoting. It would be a win win for everyone.

illusory tenant said...

Yes. The same policy arguments that support the individual insurance mandate provide even more convincing support for a single-payer system. And a single-payer system would present not one constitutional problem whatsoever.

Anonymous said...

However, the single payer system has nothing to do with a persons income, which a minimum should include healthcare.

illusory tenant said...

Sure but employment shouldn't be a condition precedent for access to basic, preventative health care in a just society.

Rob said...

However, single payer is a mythical unicorn in America circa 2011, so I am not sure what your point is supposed to be.

The mandate is the mechanism in PPACA to get near-universal coverage and to prevent the free rider problem of people who only sign up for health insurance when they get sick. But there are other ways to get to the same goals of expanding coverage to near-universal levels. For example, Wisconsin has no mandate but also a very high rate of insurance coverage relative to other states.

To be sure, as politics, "Obamacare unconstitutional" would be a brutally bad headline for the president. But as policy? The main people screwed by a loss of the mandate are insurance companies. They have lobbyists. They would get to work drawing up a system of incentives or Wisconsin-like subsidies that would accomplish largely the same thing without calling it a "mandate."

That is because apart from the mandate, most of the rest of the law -- closing doughnut hole, ending rescission, ending pre-existing condition exclusions and so on -- is so popular that it basically cannot be repealed. (I suppose SCOTUS could strike down the whole law and not just the mandate, but that seems unlikely.)

I do think it would make sense for liberal policy wonks to start sketching out what that post-mandate PPACA might look like should Justice Kennedy side with the conservatives on this one. But imagining that the rejection of the mandate will usher in the American people's embrace of a glorious single-payer Medicare-for-all utopia is not that.

illusory tenant said...

The one I would watch is Sotomayor.

Sue said...

'For example, Wisconsin has no mandate but also a very high rate of insurance coverage relative to other states.'
Not for long, and we're starting from the bottom up.

Anonymous said...

Employment isn't but income is the precondition...