Last April I wrote about whether the Obama health care plan, and especially the requirement that people must buy health insurance, i.e., the individual mandate, is constitutional. I am not going to repeat what I said then. I will say, however, that the question of whether the plan, and especially the individual mandate, is constitutional is getting a lot more serious attention than I expected. A year ago, not many people thought about it, and the supporters of President Obama’s plan thought that even asking the question was absurd. But with two U.S. federal district courts having found that parts of law are unconstitutional, out of the four that have looked at the issue, the question does not seem so absurd anymore.
But the interesting question is something that I mentioned in passing last April: Instead of all of the arguments about the constitutionality of the individual mandate, what if the government had just raised taxes and started providing health care to everybody, like it does with Medicare for those over 65? Would there be a constitutional argument about that? Probably not. After all, what is the difference between taxing people to provide Social Security or Medicare for older Americans and taxing people to provide medical care for everybody? There would be lots of debate on whether doing this would be a good move, but I doubt there would be any serious constitutional argument.
So why didn’t the Administration do that? There are probably several reasons. First, as I said above, I don’t think the Democrats ever thought the constitutional argument about Obamacare was serious – or any kind of a real concern. Their general view seems to be that the federal government can do whatever it wants in terms of economic rules and regulations, and that the only constitutional limits on the federal government are certain Bill of Rights protections for people charged with crimes.* After all, liberals don’t even think that the First Amendment should prevent the federal government from imposing limits on political speech during election campaigns, as long as what the federal government is doing will make the process fairer and more equal, so why should Obamacare be a problem?
Second, I wonder if such a bill, i.e., extending Medicare to everybody, would have passed. One of the key arguments, especially early on, for Obamacare, was that it would provide coverage for people who didn’t have it, but it would not affect people who already had health coverage and wanted to keep what they had. Remember President Obama saying that, under his plan, if you liked the health insurance you had, you would be able to keep it. Obviously, nobody, including the President, is saying that anymore, because it has become fairly clear that it is not true, but it was part of the effort to sell Obamacare back before people knew how the plan was really going to work. If the Administration had admitted, from the beginning, all of the changes that the plan was going to make to people’s existing health insurance, the public uproar would have been greater and sooner, and it might not have passed.
Third, the ultimate goal was to pass something, anything. The idea was that, once it was passed, it would be impossible to repeal it. Problems could be fixed later. The point was to get it passed and then worry about the details. This became especially true once Scott Brown was elected in Massachusetts. It didn’t matter how the plan worked, or if it would work. The goal was to pass something and then fix it over the next three and one-half years.
What President Obama and his supporters did not count on was that the financial bailouts, the huge stimulus package, and the health care legislation itself – including the process by the bill was passed – wound up creating a backlash that generated renewed interest in how limits could be put on the federal government. Which led people to the Constitution.
This was unexpected by liberals and Democrats because the idea of limiting what the federal government can do (except in those areas I mentioned above) is alien to them. In the view of most liberals and Democrats, if the goal is good, if the motive is good, then why should anyone object to what the federal government wants to do? Not everybody agrees with such a view, and that disagreement lies at the heart of the debate over the constitutionality of certain parts of Obamacare as it was passed.
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* And limits on what the federal government can do in terms of national security, of course.
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