JONATHAN CHAIT MARCH 25, 2010
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The most amusing spectacle of the health care debate has been watching Republicans rally with the utmost earnestness around principles that literally nobody within their party had ever considered before the health care debate. So, we've seen them rail against the use of budget reconciliation, previously a procedure they'd employed for major tax cuts, as something akin to dictatorship. They've embraced the notion that passing major legislation that commands less than fifty percent in the polls is an abrogation of democracy, an idea none of them considered when they passed a Medicare prescription drug benefit in 2003 that lacked plurality support.
The most comical iteration of this phenomenon has to be the ongoing attempts by Republicans to overturn health care reform in court on the grounds that the individual mandate is unconstitutional. First of all, as Paul Campos notes, this would be a wild exercise in judicial activism, opposition to which is the alleged lodestar of conservative judicial philosophy. And second, until very recently, Republicans considered the individual mandate not only Constitutional but utterly uncontroversial. Last year, Republican Senators Robert Bennett, Lindsey Graham, Mike Crapo, Judd Gregg and Lamar Alexander all co-sponsored a health care bill that included an individual mandate. Olympia Snowe voted for a Senate Finance Committee health care bill that included an individual mandate before subsequently voting with her entire party to call the mandate unconstitutional. Texas Attorney General Greg Abbott, currently suing to overturn the individual mandate, once supported a mandate that parents purchase insurance for their children.
It's easy to see why Republicans are hopping aboard this campaign. They lost a huge vote, and rather than accept losing they need to show a determination to fight. And despite their protestations about judicial restraint, they're at least as prone as Democrats to use the Courts to win what they couldn't win in Congress. As Campos puts it:
Has Congress done something you don’t like? Has the president signed a bill that displeases you? Have you just lost a huge political battle? In most democracies, your options in this situation would be pretty much limited to trying to elect politicians who share your views.
But this is America, so there’s always an alternative: Sue the bastards.
The individual mandate is the closest thing the GOP has to a plausible legal challenge to health care reform (which is not to say that it is actually very close to plausible on legal grounds). So even though the individual mandate was once the element of comprehensive health care reform that perhaps had the greatest level of Republican support, it must now become freedom's greatest enemy.
10 comments
My county has a nearly identical mandate on pet owners to spay or neuter their animals. Since the county doesn't actually employ veterinarians, this is a requirement to purchase a private service. And like Obamacare, the penalty if I fail to spay/neuter is to have my taxes raised by a certain dollar amount. And the worst of it? Just like the sheep who followed Hitler, I mindlessly complied with the demands of big government and spayed one dog and neutered the other. Just to obey Big Brother and save myself $10 per dog per year in county tax penalties. The republic has been in the grip of unconstitutional statism for longer than we realize. Given that this individual mandate is the law of the land not just in my county, but also in most of Virginia, one wonders what Cuccinelli thinks he's defending by opposing the healthcare mandate. Mandates are already here, right here in Virginia, and so freedom is already long dead.
- rhubarbs
March 25, 2010 at 11:31am
While I get the Republican utter hypocrisy thing, I am still not sold on the necessity of the mandate. I know you will state that people will wait to buy insurance until they are sick because Insurance companies won't be able to deny policies based on pre-existing conditions, so there will be a death spiral as more people drop out, yada yada. But I don't see it. While Insurance Companies will be forced to take people with pre-existing medical conditions, they won't have to pay for pre-existing bills. The idea that many people will bet on getting early diagnoses for serious conditions to give them leeway to shop completely ignores the reality of accidents, strokes, heart attacks, etc. etc. Only a fool would take that bet. If I have a heart attack and I have no insurance and call 9/11, have emergency surgery, yada yada. I am on hook for all the medical bills because Insurance companies are under no obligation to pre-date the policies, and due to processing times for new policies, I am just as likely to be out of the hospital before any new policy will take effect. The only death spiral will be my own financial future, and I doubt any bankruptcy judge will look kindly when I claim I can't pay my bills. The way to insure people getting insurance is to increase their taxes and increase their credit, the money that comes from people not buying insurance yet paying that tax could go into a pool that pays for the healthcare these people end up not paying for (bear in mind, the Government can go after each of these people for unpaid bills forever). In this way, there is no mandate, no Constitutional issue of forcing people to pay money to a for profit insurance company, an overwhelmingly large reason to buy an inducement to purchase insurance is better than a mandate. And it would have completely and utterly crushed the Republicans as well, what with their own love of tax credits, if they disavow that then they got nothing left.
- blackton
March 25, 2010 at 11:35am
I would say wildly implausible. To throw this out, they would have to throw out all taxes other than income taxes (that enjoy an explicit constitutional sanction under the 16th Amendment). The US would implode, or more likely the court would be impeached or packed to the gills in a heartbeat. I love living without freedom. Without laws, I don't know if I could stifle the impulse to play in traffic.
- roidubouloi
March 25, 2010 at 11:37am
As Glenn Beck once said, first they came to spay and neuter the animals. Then they came to spay and neuter the people. They never saw the slippery slope until they were on it!
- wildboy
March 25, 2010 at 11:42am
My favorite example of a new Republican principal is the idea, plainly espoused by Lamar Alexander on Tavis Smiley last night but also by others, that any funds saved from the Medicare program, must be spent on Medicare. It seems to me that under that principal we are condemned to spend the unsustainably accelerating sums that all foresee and agree must be curtailed. There is nothing to this argument except to try to make the medicare set feel aggrieved.
- aduncanson
March 25, 2010 at 12:14pm
blackton, you may be right - and certainly, that was candidate Obama's line of reasoning in debates against Hillary - but you don't account for the problem that someone will pay for your emergency heart surgery, and it probably will not be you. If you're uninsured, and you have a really bad day, and rack up $150,000 in medical bills, the odds are very high that you don't have $150,000 sitting in the bank, nor any realistic prospect of coming up with $150,000 in disposable income anytime soon. So while you get to spend a few years with medical creditors hounding you night and day, your credit ruined, and quite likely your ability to engage in legal financial activity of any kind severely curtailed by liens and garnishments, the hospital, doctors, and others who saved your life are not being paid for it. In order to avoid going out of business, they must then extract that $150,000 you're not paying from the next people who come along. So the costs of your uninsured care are in fact passed on to insurers as pre-existing bills. You benefit, everyone else pays. The point of the mandate is to (A) reduce the incidence of free riders making healthcare costlier for the insured; and (B) extract some measure of offsetting compensation from freeloaders.
- rhubarbs
March 25, 2010 at 12:21pm
Thank you for this post Jonathan! Republicans used to say that "liberals can't win at the polls, so they rely on activist judges." This is insane, states opting out of bills passed by Congress and signed into law. The conservatives are oh so selective in their respect for states "rahts" . Gay marriage? Screw the states, amend the constitution to ban it. Environmental protection - that can only be done at the national level. But when it suits them, we're back to 1836. All this sturm und drang. You'd think we'd just invaded a country based on phony pretenses and poor planning. Drowned a city. Passed, with little debate and very fuzzy math, a prescription drug bill written by the pharmaceutical industry And as you note elsewhere, Mitt Romney was for the individual mandate before he was against it. Romney is the cheapest, emptiest suit in politics. You think Harold Ford, Jr. is malleable? Maybe, but at least he realizes his limitations.
- dubyadoubte
March 25, 2010 at 12:27pm
dubya, this is nothing new. When Southern conservatives made war on the United States in 1861, they claimed the mantle of "state's rights," and to this day many conservatives claim that the Civil War was about state's rights, not slavery. ("A state's right to do what?" I always ask.) But in fact, during the 1850s, the conservatives who would go on to commit treason opposed state's rights at every turn. When Northern states wanted to opt out of enforcing the Fugitive Slave Act, Southerners federalized local law enforcement. When territories sought to restrict slavery, Southerners overrode local statutes in Congress. When free states sought to enforce the laws preventing slavery in their own borders, Southerners ginned up an activist Supreme Court ruling that all but nationalized slavery. The issue for conservatives then, as for conservatives now, was not state's rights. It was that they lost control of the federal government, and so they made war on that government rather than submit to rule by their democratically elected opponents. State's rights is not a conservative principle; it is merely a slogan used in those rare instances when conservatives seek to override the will of the people from below rather than dictating from above.
- rhubarbs
March 25, 2010 at 1:32pm
Roi, you killed.
- Wandrey
March 25, 2010 at 1:41pm
rhub, that is why I say increase the taxes for everyone to the extent it would equal actual coverage, and then rebate people who have actual coverage for the full amount. Use the money not rebated to fund a pool for uninsured care (think of it as a backdoor Public option) and it would have the additional benefit of getting even more money from these people who will be paying the taxes and for the care they do receive. In short order, everyone but the most stupid or obstinate will get a policy. And say if worst comes to worst, and everyone doesn't buy insurance, well then we would have everyone paying the taxes with the government making all the payments. Sounds like single payer to me.
- blackton
March 25, 2010 at 1:48pm