If this seems like thin gruel to you, I concur. I wouldn’t give more than a 15 to 20 percent chance of the Affordable Care Act being upheld. And even that slim chance really is more a nod to the fact that we don’t know what is going on in the justices’ heads, so even when all the evidence points one direction, we have to leave some room for the opposite outcome.
I won't dwell on the arguments for and against striking down the individual mandate, which have been beaten to death by this point. But I do wish to emphasize that there’s also a substantial chance that the court will strike down the entire law, contrary to what almost all news outlets have reported recently. This issue turns around the arcane question of severability, and there’s a reason CNN Legal Analyst Jeffrey Toobin called the arguments on this issue a “plane crash” for the government (as opposed to a mere “train wreck” after the arguments on the mandate).
Basically, laws typically include a severability clause specifying that if any portion of the law is struck down as unconstitutional, the remainder should survive. But Congress didn’t include a severability clause in the health care law.
The reason of course that Congress didn't provide a severability clause on the mandate was that basically all precedent leading up to the law clearly stated that the mandate was eminently constitutional, and in fact as Ezra Klein reminds us, conservatives championed the mandate for a reason.
Of course, this battle isn’t really about the constitutionality of the individual mandate. Members of the Republican Party didn’t express concerns that the individual mandate might be an unconstitutional assault on liberty when they devised the idea in the late 1980s, or when they wielded it against the Clinton White House in the 1990s, or when it was passed into law in Massachusetts in the mid-2000s. Indeed, Sen. Jim DeMint (S.C.), arguably the most conservative Republican in the Senate, touted Romney's reforms as a model for the nation. Only after the mandate became the centerpiece of the Democrats’ health-care bill did its constitutionality suddenly become an issue.
The real fight is over whether the Affordable Care Act should exist at all. Republicans lost that battle in Congress, where they lacked a majority in 2010. Now they hope to win it in the Supreme Court, where they hold a one-vote advantage. The argument against the individual mandate is a pretext for overturning Obamacare. But it’s a pretext that could set a very peculiar precedent.
If the mandate falls, future politicians, who will still need to fix the health-care system and address the free-rider problem, will be left with the option of either moving toward a single-payer system or offering incredibly large, expensive tax credits in order to persuade people to do things they don’t otherwise want to do. That is to say, in the name of liberty, Republicans and their allies on the Supreme Court will have guaranteed a future with much more government intrusion in the health-care marketplace.
Which is true, but then again the whole point was to destroy Barack Obama's legacy and leave him cast as the biggest Presidential flop since Carter. The last time the GOP did that, they got a dozen years of Reagan/Bush and then the Contract With America. The rest is history. And you can bet the Republicans will happily sell their version of "Obamacare" to the people as "real health reform" only without the parts that actually reform the system, grant affordable coverage to the millions that don't have it and lower costs. It'll be as awful for our economy as the Bush tax cuts and the Medicare Part D prescription benefit were, only far worse.
We'll see how right Trende is tomorrow.
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