Monday, 13 December 2010

Be Careful What You Wish For, GOP

So, it seems we're indeed getting the conflicting judgements on the constitutionality of the new health care plan's individual mandate as many anticipated.  Today, a  Virginia judge ruled the mandate unconstitutional.

I thought that people long ago stopped thinking that only those things explicitly spelled out in the constitution are things the government is allowed to do. I wish we could all, conservatives included,  just acknowledge this instead of engaging in ridiculous Commerce Clause and highway funding subterfuge.  But let's set that aside.

The important thing about the individual mandate, to my mind, is that at worst this is a tax but at best, if you're a tax and government hating conservative, it's something far less intrusive.  If it's a tax, it's hard to argue that the government lacks the authority to impose it.  But let's suppose it isn't a tax, let's suppose we can draw some clear and distinct line between a requirement to fund government and having the gov't obligate a citizen to purchase a service, as state governments often do in the case of auto insurance.

Insofar as it isn't a tax, because it's requiring us to buy a service on the free market rather than fund a government program, conservatives should, IMO,  think long and hard about opposing it. There's a good reason that this kind of plan was once the darling of conservatives -- it leaves the door wide open for market forces.  Presumably the government could have gone a far more radical route, just make medicare wide open or effectively wide open.  In that case, we could have had real discussions about socialism, but what we probably couldn't have had is an objection based on concerns about the constitutionality of the plan. We'd have funded it with taxes and it's hard to see what case could be made to block it.  Obama has opened up the door to a constitutional challenge only because he's too moderate, not because he's too liberal or the plan is too intrusive, but only because the plan isn't obtrusive enough.  But what conservatives should know, should they manage to win this case, is they've forced the hands of proponents of health care reform. The only workable solution to the cost problem, should an objection like this ultimately succeed, would then have to be one in which the government is involved far more directly so that the funding for the program will pass muster as a tax.   (Although, I must say that I can't imagine the SCOTUS holding up a ruling like this if only for the reasons mentioned, i.e., it seems the lesser of two "evils" in which the greater already clearly passes constitutional muster.)

ETA: Ezra Klein makes the same argument that I do! And see this October article to which he links.

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