With each passing day, I become increasingly suspicious that nearly everyone with a solid partisan opinion regarding the constitutionality of the Patient Protection and Affordable Care Act (the health care law) has been majorly duped in one way or another.
Judging only the intensity of Republican rhetoric and cries that the individual health insurance mandate spells the end of the republic, you’d never know that the individual mandate was historically their idea. Republicans used to call the insurance mandate a “market-oriented reform” because it doesn’t rely on a Medicare-for-all or public insurance program and, in the case of probably-future-president Mitt Romney, “the ultimate conservative idea.” His words, I kid you not.
Show me a Republican who held office in 1993, and I’ll show you a Republican who almost certainly supported an individual mandate over then-President Clinton’s health care proposal. But we don’t even have to look as far as the 1990s to find Republican leaders promoting the mandate. In a 2005 debate with Hillary Clinton, [Newt Gingrich defended the idea of a mandate](http://www.youtube.com/watch?v=XGlIB623LCw) and argued, “unless you have 100 percent coverage, you can’t have the right preventative care, and you can’t have a rational system.” He never fully changed his tune until after [stumbling over the issue in a “Meet the Press” interview](http://www.youtube.com/watch?v=ThwVp0cwOMA) last year.
In 2009 when the health care debate was still young, Mitt Romney [wrote in USA Today](http://www.usatoday.com/printedition/news/20090730/column30_st.art.htm) that President Obama should take Massachusetts’ health reform effort as inspiration. He wrote, “Using tax penalties, as we did, or tax credits, as others have proposed, encourages ‘free riders’ to take responsibility for themselves rather than pass their medical costs on to others.” Ding ding – that’s the individual mandate. In the same year, Romney [voiced support on “Meet the Press”](http://youtu.be/2M9gGwW2gCs) for the Wyden-Bennett Healthy Americans Act, which [The Wall Street Journal reported](http://online.wsj.com/article/SB124545885464333145.html) contained, you guessed it, another individual mandate.
Republican support for mandates persisted as long as the public option was on the table. Only when Obama settled on cooperating with the insurance lobby more closely and pushed his own tax-penalty system did the mandate become Satan incarnate in the eyes of the right. Typical shenanigans, and everybody fell for it.
But if there’s something I really can’t stand, it’s discussing the mandate as if it were unambiguously unconstitutional. This is presumptuousness, and it isn’t helping anybody understand the issue better.
I was glad to see fellow Maneater columnist A.J. Feather actually cite a Supreme Court case relevant to the regulation of interstate commerce, but I don’t think the _United States v. Lopez_ ruling that a law banning firearms in schools has little to do with interstate commerce helps our analysis very much. The cases that broadened the Congress’ commerce power would better contextualize Justice Kennedy’s question during oral argument, “Can you create commerce in order to regulate it?”
In the Supreme Court’s own words, the depression-era _Wickard v. Filburn_ established that “Congress can regulate purely intrastate activity that is not itself ‘commercial’ … if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.” In _Wickard_, wheat that was privately consumed and never bought or sold could still have its acreage limited under federal law. It’s not commerce being created in order to be regulated, but it is completely non-commercial activity being regulated for its impact on interstate commerce.
The quote comes from the opinion in _Gonzales v. Raich_ — 10 years more recent than _Lopez_ — in which the court used _Wickard_ as precedent to rule that home-grown marijuana never traded in an open or underground market can be regulated under the interstate commerce power because it “tends to frustrate the federal interest in eliminating commercial (marijuana) transactions” — non-commercial activity being regulated for its aggregate effect on interstate commerce. I personally don’t think the ruling makes much sense at all in its original context, but it doesn’t change that _Gonzales v. Raich_ is the real elephant in the room for the conservative justices and Justice Scalia especially, who will probably tie himself in knots during the concurring or dissenting opinion he will likely write.
But do not mistake what I’ve written above as an endorsement of the individual mandate. Republicans may inflame me by cynically shape-shifting and glossing over the real issue here, but that does not imply my eagerness to further and permanently cement American health care to the insurance system. Color me ambivalent.
