Wednesday, December 15, 2010

Health Reform Might Be Unconstitutional Because Democrats Compromised.

So, a judge in Virginia ruled the individual mandate in the new health reform law unconstitutional.  Big deal?  

If you are in favor of providing universal coverage to everyone, the individual mandate is key.  Yes, there are ways to circumvent it (for example, provide a tax credit to those who purchase health insurance; or charge a penalty to anyone who opts out and then signs up), but as the reform law is currently constructed, the mandate is essential.  Without it, insurers can hardly be expected to provide coverage to everyone regardless of preexisting conditions, and they will surely file their own lawsuits if the mandate is ripped out.  Soon we'll be back where we started.

Still, two other judges ruled that the mandate is just fine.  So why would one man's opinion matter?  Well, the revealing fact is that of the judges who opined on this thus far, those who ruled in favor of the mandate were nominated by a Democrat and the one who rules against it was a Republican appointee.  In short: the constitutionality of the mandate seems to be partisan - imagine that!  Now, with multiple diverging opinion, the case is guaranteed to go up to the Supreme Court, where a panel of 5 conservatives and 4 liberals is fairly likely to strike it down (OR I'm just a cynic and the judges are totally non-partisan).

Anyhow, the issue I wanted to address is not what the future holds, but rather how we got here.  The individual mandate is allegedly unconstitutional because the federal government cannot force people to purchase a commercial product.  Think about that for a moment:  the federal government cannot force people to purchase a commercial product.  In other words, the current challenges to the mandate would have no teeth if it weren't for the fact that the current design of the law relies on people buying coverage from insurers.  The irony is that the genesis of that construct lies not with the Democrats - who generally favor governmental provision of health benefits (the public option, remember?) - but rather with the Republicans who prefer any government benefit to be administered by corporations (Medicare Part D thanks to Bush, social security, if Bush had his way, the military contractors, etc, etc).  

So in other words, had the Democrats had their way on the design of health reform, there would be no grounds for a constitutional challenge.  Of course that was not the preferable path, since back then we needed everything to be BIPARTISAN.  And what did they get in return for this compromise?  A single Republican vote?  No, not a single one.  Instead they now have this compromise coming back to bite them in their ass.  

I find it hard to believe that the Republicans were smart enough to plan this ahead of time - eliminate any governmental option to provide coverage to get a chance at repealing the law in court.  I think the facts just conveniently lined up that way.  But I think it is instructive to point out - especially as we are talking about the tax cut "deal" between Republicans and Obama - that these kinds of compromises tend to have unintended consequences down the road.  So, as some Democrats are slapping themselves on the back about what a good deal they got ("back-door stimulus"), I'm just thinking:  you just wait.


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