If the Supreme Court strikes down Obamacare later this month,
the ruling will be based on the inability of five or more justices
to reconcile the law’s individual mandate with the Constitution.
These justices will have reached the conclusion that the enumerated
powers of the federal government do not include the authority to
force individuals to buy health insurance so that Congress can then
regulate that activity via the interstate commerce clause. Such a
decision will be incredibly humiliating for the President, but it
will doubtless provide a certain amount of schadenfreude to his
Secretary of State. Hillary Clinton, you will recall, was subjected
to relentless attacks by Obama during the 2008 Democrat primaries
because her plan to reform health care included such a mandate.
In those long-forgotten primary battles, Obama repeatedly touted
his opposition to an individual mandate as one of the major
distinctions between his “reform” plan and that of his main rival
for the nomination. During the 2008 Democrat debates he routinely
upbraided Clinton for advocating a policy that he said was
fundamentally unfair: “[T]he reason people don’t have health
insurance isn’t because they don’t want it, it’s because they can’t
afford it.” To drive home his point, he frequently employed the
following mordant analogy: “If a mandate was the solution, we can
try to solve homelessness by mandating everybody to buy a house.”
Such heresy produced denunciations from a variety of progressives,
including Paul Krugman, who
accused Obama of “echoing right-wing talking points.”
Such criticism notwithstanding, Obama’s ostensible aversion to
government-imposed mandates was shared by most voters. Moreover,
Obama’s stated position was correct on the merits. As had already
been demonstrated in Massachusetts, insurance mandates don’t fix
the “free rider” problem they are purportedly meant to solve.
Uncompensated care had continued to increase in the Bay State
despite the imposition of just such a mandate on its citizens in
2006. Nonetheless, when the health “reform” bills began taking
shape in the Democrat-controlled Congress in 2009, the mandate
again reared its ugly head, and the new President’s opposition
began to evaporate. In June of 2009 the New York Times
reported
that Obama had become “receptive to Congressional proposals that
would require Americans to have health insurance.”
In the end, of course, the health care legislation that
President Obama signed into law included precisely the kind of
individual mandate that he had vehemently denounced while running
for president. In addition to revealing Obama as just another
cynical and unprincipled Beltway politician, this brazen flip-flop
may well have preordained Obamacare’s ultimate demise. Florida
v. HHS, which challenged Obamacare based on the claim that the
individual mandate is unconstitutional, was filed in U.S. District
Court for the Northern District of Florida on the same day the law
was signed. This lawsuit was predictably denounced by the White
House as a frivolous publicity stunt, but it was taken quite
seriously by U.S. District Judge Roger Vinson, who struck down the
law in its entirety in January, 2011.
This ruling earned Judge Vinson a tsunami of abuse from
left-leaning law professors, pundits, and politicians, while the
Department of Justice (DOJ) attempted to have his ruling overturned
in the Eleventh Circuit Court of Appeals. But that court also ruled
the mandate unconstitutional. Unlike Judge Vinson, however, the
three-judge panel representing the Eleventh Circuit declined to
strike down the entire law. This conflict between the rulings of
the district and appeals courts set the Obamacare challenge on a
direct path to the Supreme Court. And, when it finally reached that
exalted tribunal, it became obvious why the DOJ had sought so long
to delay that day of reckoning. The Obama administration fared so
poorly in March’s oral arguments that the most common term used to
describe its case in the media was “train wreck.”
Predictably, it was the mandate upon which the DOJ’s argument
came a cropper. When it came time for Solicitor General Donald
Verrilli to defend it before the assembled justices, he fell on his
face. As one progressive publication
phrased it, “Verrilli delivered a rambling, apprehensive legal
defense of liberalism’s biggest domestic accomplishment since the
1960s.” But the hapless Solicitor General wasn’t defending
“liberalism’s biggest domestic accomplishment” that day. He was
attempting to defend the law’s individual insurance mandate, a
provision requiring Americans to buy a certain product from certain
private corporations even if we have no desire to do so. Who
wouldn’t have trouble defending a coercive federal decree that even
the president for whom he works had denounced dozens of times as
unfair?
If, after his election to the presidency, Obama had held fast to
his oft-expressed opposition to the individual mandate, it probably
would have been more difficult to get “reform” passed. But most
presidents finding themselves in such a situation would have
reached across the aisle and offered some compromise that would
have produced enough votes to get the bill across the finish line
with a modicum of bipartisan support. However, as Maureen Down
wrote over the weekend, Obama considers such efforts beneath
his dignity: “As president, Obama has never felt the need to
explain or sell his signature pieces of legislation.” Rather than
compromise, he participated in a wide variety of backroom deals and
executed an egregious flip-flop on the individual insurance
mandate.
That crucial reversal is what landed Obamacare in the Supreme
Court. If the law contained no insurance mandate, the number of
challenges to the law would have been far fewer and the chances
that any would have reached the Supreme Court would have been far
lower. But Obama doesn’t like to compromise with people he
considers the enemy. As he tersely stated
when he rejected good faith Republican proposals made during the
2009 “negotiations” concerning his failed stimulus package, “I
won.” He has, however, been more than willing to compromise many of
his alleged principles. And his willingness to do so in the case of
the mandate may well have doomed his “signature domestic
achievement.”
