The long, trudging march of the Patient Protection and Affordable Care Act toward the U.S. Supreme Court is nearing the end, of the road, as court after court clash over the constitutionality of the landmark legislation.
But there one's small problem. While the individual mandate clearly emerges as the point of judicial contention, someone forgot to tell the courts about the rest of the law. Because, while the law remains a legal and logistical mess, the PPACA without the individual mandate is something altogether worse.
Several states – and some of the courts – have argued rather convincingly that this particular exercise of the Congressional “commerce clause” (the individual mandate) exceeds any historic interpretation of this little-known Constitutional provision. But any underwriter will tell you that compelling carriers to offer coverage to “everyone” without also mandating “everyone” purchase said coverage is as mathematically challenged a conceit as No Child Left Behind – Bush's landmark education law that forced new standards and testing on the states without actually paying for any of it.
But the experts argue that, in this case at least, the commerce clause oversteps its bounds because its compels one to do something – such as buying health insurance – rather than simply prohibiting an action.
(And while I agree this breaks somewhat new ground, it's not entirely unprecedented. A writer smarter than me points out that shortly after the founding of our great republic, newly elected president George Washington signed into law the Militia Act, which forced every (white) man to “provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch and powder horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder.” Call it reverse gun control, if you will. The original blog can be found here: http://www.salon.com/news/opinion/joe_conason/2010/03/25/militia/index.html)
But leaving that little history lesson aside for a second, let me slide over to another one. It's widely accepted that the Heritage Foundation drafted the concept of the individual mandate way back in 1989 – well, at least they get the credit for it. And four years later, it made its way into not one, but two, separate GOP-sponsored health reform bills. And a bipartisan effort (back when we still had such things) emerged in as recently as 2007 with an individual mandate included in it, as well.
But Republicans such as Sens. Orrin Hatch and Kit Bond, once-vocal mandate supporters, aren't the only ones to switch sides. In 2008, then-candidate Barack Obama went on national television to decry the individual mandate – ostensibly because primary rival Hillary Clinton supported it.
Now, I don't bring this up to disparage Republicans or blame them for the legal morass we find ourselves in now. The logic is simple. It's an all-or-nothing proposition. If you remove the mandate – the focus of so much consternation – without also amputating the pre-existing condition clause, you make a bad law 10 times worse. You can't have one without the other. And that's why the mandate drew support from both parties early on, because the whole thing falls apart like some kind of warped Jenga puzzle.
And there are those who argue that's exactly what the PPACA opponents are counting on. See, if the mandate – even by itself – is ruled unconstitutional, the law's lack of a severability clause would invalidate the entire piece of legislation. It's a hell of a gamble. If the court decides it can be severed, then the GOP will own this mess – just like Obama bought and paid for the stagnating economy.
So all this posturing over the individual mandate is misguided since everyone seems to have conveniently forgotten about the equally damning pre-existing condition clause. It's as mysterious as Jersey Shore ratings.
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