By Andrew Beilein
The Supreme Court (SCOTUS) is poised to rule on Obamacare this week, and the argument that seems to dominate the headlines is the constitutionality of the individual mandate. Essentially, the right says the mandate is the first of its kind and beyond the scope of the Commerce Clause, while the left says that the government has the power to regulate the health care market—but as SCOTUS deliberates, there will likely be focus on whether Obamacare’s mandate has legal precedent.
One argument for Obamacare is that you must live under a rock to avoid federal mandates—auto insurance, airbags, submitting photos with a passport application, etc. are a part of daily life for Americans and serve as perfect evidence for how the federal government makes us purchase things. According to Kevin Drum of Mother Jones, any difference between the mandate and purchasing airbags isn’t enough evidence for the “deep constitutional principle that you should have if you want to overturn a piece of landmark legislation duly passed by Congress and signed into law by the president.”
However, while appealing to common sense, Drum’s arguments aren’t particularly practical in a courtroom. Kevin Greve of the American Enterprise Institute found that the “best” chance of upholding the mandate in a legal sense came from a WWII law—mandating Japanese-Americans report to Civil Control Stations. But while SCOTUS upheld that law in court, utilizing Korematsu v. United Stateswould probably be the biggest gift to the GOP since “the private sector is doing fine.” Beyond that, the Republican argument is simple: the mandate of Obamacare exceeds the powers of Congress and must be struck down; while regulating health insurance is considered interstate commerce, making people buy it is a creation of interstate commerce that would lead to a slippery precedent.
Perhaps one of the most overlooked aspects of the individual mandate is its history with the Republican Party; in the 90’s, The Heritage Foundation, a conservative think tank, was a proponent of a health care mandate as an alternative to a single-payer universal system. A number of Congressional Republicans supported the idea, but it eventually unraveled. However, it could be argued that the fundamentals of the Republican Party have changed in the last 15 years, and it is also unfair to call the mandate a completely Republican idea—it was constructed by a small segment of the party. Nonetheless, ironies are plentiful—especially with the architect of the Massachusetts health care mandate gunning for the federal mandate.
When considering the upcoming SCOTUS decision, it is important to realize that we are not arguing over health policy, Medicare, or uninsurance—we are arguing solely over the Constitution and the mandate. Whether Obamacare unravels or stays in tact following the decision remains to be seen.