Don't Throw Me In The Mandate Briar Patch

Slate's Adam Chandler and Luke Norris argue that if the insurance mandate part of the HCRA is struck down as unconstitutional, it should be replaced by the public option.

Conservatives argue that for Congress to require all Americans to buy private health insurance exceeds its regulatory powers under the Constitution's Commerce Clause. Before Judge Hudson, they distinguished the health care law's individual mandate from government programs like Social Security. The Social Security program is designed so that Americans pay taxes directly to the government, which pools the money and disburses future Social Security benefits. In contrast, the novelty of the health care law is that it requires Americans not to pay a tax, but rather to buy their health care insurance privately. The government's involvement is a step removed, and this is what Judge Hudson found to be constitutionally defective.

But here's the catch: If the part of the health care law that's unconstitutional is the part telling people to buy private insurance, an obvious solution is to pass a health care law including a public health plan, which would operate like Social Security and Medicare. In other words, the public option. With a public option as part of the law, people who don't want to buy insurance from a private health care company would pay into a government fund in exchange for an insurance benefit, just as they do with Social Security and Medicare.

Opponents could still argue that any law requiring universal coverage is beyond Congress' reach. But they'd run into a big wall: Supreme Court decisions that place Social Security and Medicare, along with a list of other entitlements, squarely within the constitutional ambit of Congress. Like we said, the public option and Social Security and other entitlements are structurally quite similar—indeed, the public option is essentially a form of Medicare. So to strike down the public option would require reversing a lot of well-established precedent. Courts would have to return to the laissez-faire ideology of a century ago, epitomized by the 1905 Supreme Court case Lochner v. New York. That ruling infamously limited the extent to which the government could intervene in the private sphere, leaving legislatures unable even to set minimum-wage laws, for example. And courts long ago repudiated it.

Now suppose that conservatives succeed with their current, safer legal strategy, and knock out the individual mandate. Because the private-only mandate had been the middle, compromise position, Congress would be left with the two more extreme options on health care—either a plan that includes something like the public option, or the status quo. As costs rise and more Americans go uninsured, will the public really want to roll back reform? When Americans are asked about the current health care law, a majority say they either favor it or wish it were even stronger. Making the public option the only option would fulfill the wish of those wanting a stronger bill. 

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It's a solid argument and one I agree with.  I think the mandate should be dropped and the public option instituted because the public option is a far better solution, not because the mandate is unconstitutional, I don't believe it is and I don't believe it will be found as such.

But hey, hell of a reason to implement a Medicare for all option for all Americans to pay into, yes?