Two years ago, when the chefs of the Democrat party emerged from
the legislative kitchen with that noisome combination of noxious
ingredients ironically titled the “Affordable Care Act,” they made
it clear that it was meant to be served prix fixe. And,
when the Republicans and a large percentage of voters recoiled at
some of the offered fare, the offended congressional cooks
haughtily informed us that we were getting a set menu. They were
particularly intransigent on the subject of the individual mandate.
No matter how many times we expressed our displeasure with that
disgusting course, in public demonstrations and at the ballot box,
they insisted it was absolutely essential to the table
d’hôte.
We were further assured that a true appreciation of
Obamacare and its mandate would come with time. It was an acquired
taste, they told us, that we would eventually learn to love. Much
to the chagrin of congressional Democrats and the White House,
however, the mandate has instead turned out to be something of an
emetic. It proved so nauseating to the electorate that the
Democrats were hurled from their recently reacquired House majority
in November of 2010, and it could cause “reform” to be regurgitated
from our body of laws by the Supreme Court this summer. The chances
that the Court can stomach the mandate are not good and, if that
pungent provision is essential, the whole nauseating mess must be
tossed.
Strangely, however, the very people who have for two years
insisted that the mandate was the essential ingredient that made
Obamacare palatable have changed their minds. They claim to have
reexamined the recipe and discovered a way serve ACA à la
carte. The government lawyers tasked with defending Obamacare
have filed a
brief with the Court saying the law can still work in the
absence of the mandate. They now claim it can be safely severed if
a couple of other provisions are also removed. Specifically, only
the guaranteed issue and community rating provisions are not
severable from the mandate according to the latest fallback
position adopted by the Department of Justice.
The DOJ is not alone in its sudden discovery that the law
will work without the mandate. Most of Obamacare’s advocates have
had similar epiphanies. And, to justify their brazen flip-flops,
many have twisted themselves into interesting rhetorical knots.
Doctors Samuel Sessions and Allan Detsky, for example, offer this
hilarious analysis:
“Arguing that the mandate is constitutional under the Commerce
Clause requires taking the position that it is ‘essential’ to the
statutory scheme, whereas arguing that it is severable dictates the
seemingly opposite position that the ACA is ‘capable of functioning
without it.’ Politically, making both arguments may be awkward.…
Legally, however, the positions are consistent.”
These cynical sawbones argue that the mandate is
“completely severable,” and that its removal doesn’t even require
the extractions proposed by the DOJ. This is nonsense, of course.
As virtually all of Obamacare’s proponents insisted before they
realized there was a real chance the Court would strike it down,
the mandate is such an integral component of ACA that “reform”
cannot be digested without it. This is certainly the position the
Democrats took when they rammed the law down our throats. As Mario
Loyola, Richard Epstein, and Ilya Shapiro put
it in the American Interest, “It was for that reason
that the law’s proponents rejected every effort to remove the
mandate from the law in committee vote after committee
vote.”
Loyola, Epstein, and Shapiro, who have filed an amicus
curiae brief with the Supreme Court in the ObamaCare case,
write that even removal of the guaranteed issue and community
rating provisions from the law will not justify severing the
mandate. They hold that the “minimum coverage provision,” as ACA’s
advocates refer to it, is inextricably connected to the law’s
so-called insurance reforms, Medicaid expansion, and premium
subsidies. “The better the Court understands the vital
interrelation of those provisions with the mandate in the original
legislative design, the clearer it will be that these core
provisions are wholly interwoven with the mandate and must be
struck down with it.”
They ominously add that “implementing those
other core provisions without the mandate is likely to result in a
financial meltdown. The reason lies in the unyielding economics of
health insurance.” Essentially, the law’s various provisions remove
all incentives for healthy people to purchase coverage and make it
illegal for insurance companies to refuse coverage to the seriously
ill. Without the individual mandate, therefore, this will lead to
an “adverse selection spiral” that will cause the health insurance
industry to implode: “In the end, the only people who enroll are
those with known medical conditions, such that premiums approach
the actual cost of health care, and the insurance industry
collapses.”
This is by no means a conjectural argument. Experiments
with similarly designed health care “reform” laws have been
conducted in a variety of states, including New Hampshire,
Kentucky, Vermont, Washington, New Jersey, Maine, New , and
Massachusetts. The last, like all the rest, has failed even with a
mandate that was meant to deal with adverse selection problem. It
simply isn’t possible to alter the laws of economics with state or
federal legislation. It is possible, however, to make a bad law
even worse. And that is what will happen if the Supreme Court
attempts to convert the table d’hôte cooked up by Congress
into an à la carte menu. As its proponents told us when
they force fed Obamacare to us in 2010, it is a set
menu.
The Court will hear oral arguments pursuant to
severability on Wednesday, and the opponents of Obamacare will
have exactly
thirty minutes to convince the justices that the original
position of Congress was that Obamacare was meant to be served
prix fixe. If the Supremes find the individual mandate
unpalatable, the Constitution, the laws of economics and plain
common sense demand that they send whole inedible mess back to the
Kitchen.
