JONATHAN CHAIT MARCH 25, 2010
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.