I’m on the record (twice) expressing caution about the chances of Obamacare’s individual mandate (also known as the “minimum coverage provision”) being overturned by the Supreme Court. However, as more briefs are filed for both sides along with numerous friend-of-the-court briefs, my caution is slowly turning into optimism.
I have not read all of the briefs regarding the individual mandate, but some of the ones supporting it reveal what I take as feeble, somewhat desperate arguments for the mandate. Take this little tidbit from an amicus brief filed on behalf of Senate Majority Leader Harry Reid and former Speaker of the House Nancy Pelosi:
In contrast, it cannot seriously be maintained that individuals who fail to buy cars from a particular private company create any comparable market failure or inflict any similarly “disproportionate harm” on car buyers as a class.
This is meant to address the outer limits problem, one of the reasons the 11th Circuit overturned the mandate. That court—and all of us who want specific, understandable limits on Congressional power—was concerned that to allow Congress to force individuals to purchase insurance would open the door to laws that force us to buy other things, like cars or broccoli. This brief attempts to dismiss that by saying health care is unique in its breadth and cost, and thus other hypotheticals do not fit the bill.
The automobile counter is telling, because at this very moment the federal government is creating the next “market failure” it will need to “correct” by forced purchase. GM sold a whopping 1,529 Chevy Volts last month, which already costs taxpayers $250,000 per unit in government subsidies. Think of all the burdens we’re putting on the electric car market by not participating in it. If the mandate is upheld, expect a new law down the road, one that’s not like health care but “unique” because… well, they’ll figure it out when they get to it. I’m hopeful that, despite the best efforts of mandate supporters, the outer limits concern will have a lot of sway with Roberts, Alito, Scalia and even Kennedy, because “uniqueness” just doesn’t cut it.
My optimism is not merely focused on the individual mandate and its use under the commerce power, but on the Medicaid commitments Obamacare forces on the states. The Supreme Court will give this issue a full hour of oral arguments (the amount of time often granted to an entire case). Yesterday, Pacific Legal Foundation (with the Claremont Institute and the Cato Institute) filed an excellent amicus brief that argues the limits of Congress’s spending power have been reached under Obamacare. Basically, the brief argues, states have become so dependent on federal Medicaid dollars (which state residents have to send to Washington in the first place), that Obamacare’s new requirements on what states must do to get these dollars amount to federal takeover of state governments.
So, Florida v. Health and Human Services may not only restore real limits on the commerce power, but the spending power as well. Here’s hoping!
Well said Steve. I think “outer limits” arguments will appeal to King Kennedy.