JONATHAN COHN FEBRUARY 3, 2011
Is there an honest constitutional argument against the individual mandate? Of course there is. The constitution is ambiguous and open to conflicting interpretations.
But are the people making constitutional arguments against the mandate being honest? Count me as very skeptical.
As you probably know by now, many of the conservatives in high dudgeon about the individual mandate had no problem with it when it was a staple of Republican health care proposals. Several, including Senate Finance Chairman Charles Grassley, actually endorsed it as a reasonable demand for personal responsibility and essential component of universal coverage. Only after President Obama endorsed the mandate did they decide it was not just bad policy but an act of full-blown tyranny.
Was this epiphany? Or political opportunism? While I can’t be sure, I can make a pretty good guess.
But forget about them and think about the mandate’s more genuine critics: The lawyers, writers, and experts providing intellectual ballast for this crusade. Many of them have long histories of libertarianism. I don't share their views, obviously, but I have no problem believing their opposition to even modest extensions of government power is sincere -- and that, as a result, they think the individual mandate not just unconstitutional but even immoral.
What I don't understand is how these people can, on the one hand, reject enactment of the Affordable Care Act and, on the other hand, accept the existence of a program like Medicare. That is precisely what many of them argue and what Judge Roger Vinson stated in his opinion this week.
Both Medicare and the Affordable Care Act perform the same essential function: Providing access to affordable medical care in exchange for ongoing, fixed contributions based on income. The key difference is that Medicare historically required people to enroll in a government-run program while the Affordable Care Act will give people the option of enrolling in private insurance plans or, barring that, paying an income-related penalty to offset the eventual cost of their uncompensated care. From a conservative perspective, surely the Affordable Care Act is the lesser intrusion on liberty, because it allows more individual choice of payment and coverage while establishing less direct government interference with the health care marketplace.
Now, the mandate critics do see one other distinction between Medicare and the Affordable Care Act. Americans pay for the former via paryoll taxes and for the latter through either insurance premiums or the penalty. The former clearly falls within the constitution's taxing power but the latter, according to the critics, does not.
I think that's a pretty shaky distinction, for reasons I've explained and will soon discuss further. But even if you accept that claim, it's more an argument about rhetoric and labeling than high principle. (As Ezra Klein wrote on Wednesday, "I don't believe our forefathers risked their lives to make sure the word 'penalty' was eschewed in favor of the word 'tax.' ") When it comes to fundamental principles of liberty, the strident critics of the Affordable Care Act's mandate--i.e., the ones invoking the tyranny of King George III--should be outraged by Medicare's payroll taxes, too.
And most of them probably are. I can't read minds, obviously, but my hunch is that their objection isn’t to a mandatory scheme of private insurance. It’s to a mandatory scheme of any insurance. Or to mandatory schemes in general. The problem, in other words, is the “mandatory” part. And that implicates Medicare as much, if not more than, the Affordable Care Act.
Of course, these thinkers on the right know the public won't entertain moral objections to Medicare any more than the courts will entertain constitutional ones. It's settled law and, for the most part, settled policy. So they don't challenge Medicare, except to argue for privatizing it--which, as it happens, would turn Medicare into a program that looks almost precisely like the Affordable Care Act. Gee, do you think they'd argue that's unconstitutional too?
Wait, don't answer that until you've read part 2.
Update: I added a quote from Ezra Klein, whose item about the liberty questions of the mandate is well worth reading.