With a federal judge in Florida allowing a legal challenge to health care reform's constitutionality to go forward, some liberals are concerned that the case could end up before the Supreme Court, which might actually strike it down. Specifically, the Court could hear arguments on whether it is acceptable for the federal government to fine individuals who refuse to buy health insurance. That policy is called the "individual mandate" and is said to rely on the Commerce Clause for constitutional authority. So if the Supreme Court heard such a case and ruled against the government, it would only be striking down the ability for the government to levy that fine. What if this happened? Is it a serious possibility? Would it kill health care reform?
SCOTUS Conservatives Wouldn't Challenge Commerce Clause When blogger Jonathan Bernstein asked his readers about the possibility, commenter Jeff replied, "It could be that when the actual case is heard (if it is; I'm inclined to think that if appellate courts uphold the mandate, then the Supreme Court will just deny review and let it stand), it's entirely possible that Robert and Alito will vote to strike down the mandate and will issue some dissent reminding everyone what the Commerce Clause meant in 1789 and was supposed to mean for the rest of time. But I think they'll do this only if Kennedy has come out (internally) for the mandate and given them the loss on this that they basically want. So: a 5-4 decision upholding the mandate, the righties get their Federalist Society song and dance on the record, and everybody goes home happy."
- If They Did, Wouldn't Hurt Health Care Reform Think Progress's Matthew Yglesias shrugs, "If for some reason ['swing' Justice] Anthony Kennedy decides he wants to rule that the government can’t levy a tax on people who decline to obtain Affordable Care Act-compliant insurance plans then that needn’t actually be a big deal. The existing tax penalty for non-insurance is thought by many observers to be too low to really make the regulate/mandate/subsidize framework work so it’s likely that congress will need to revisit this point anyway. And if Justice Kennedy says congress can’t incentivize insurance purchasing through this channel, congress can instead raise taxes on everyone and then immediately return the tax in the form of a 'health care voucher.' Nobody will be mandated to use the voucher on an ACA-compliant insurance plan, but as the voucher will be non-transferrable and generally worthless for any other purpose the incentive will be created."
- ...Actually, This Could Improve Health Care Reform National Review's Reihan Salam explains, "I have always been uncomfortable with the PPACA’s mandate, and I find Matthew Yglesias’s alternative superior in every important respect. ... The mandate was chosen over the voucher approach because it created the illusion that public dollars weren’t at stake, as Michael Cannon explained last year. ... As Cannon goes on to write, the White House and its congressional allies carefully crafted the mandate proposal so that costs wouldn’t be scored on-budget. Matt’s alternative would lead to greater transparency about the enormous cost of the new health entitlement."
- ...No, It Would Kill It The Atlantic's Derek Thompson warns, "Any plan that begins 'congress can instead raise taxes on everyone' should give Democrats nightmares. Congress does not like raising taxes, especially on everyone. See, for evidence, the last 20 years of American democracy. Conservative Reihan Salam loves Yglesias' idea precisely because it would make the cost of universal health care seem extraordinary, even though most of the money would be moving from our wallets back to our wallets. Congress might balk at the new tax, causing insurance companies to complain that they're being forced to provide expanded services without the guarantee of an expanded consumer base. Not a pretty picture. I'm doubtful that the courts will overturn health care reform but uncertain that a vote against Obama's insurance mandate can be easily fixed."