A reader writes:
Of all the potential legal challenges to HCR out there, Ken Cuccinelli's planned lawsuit seems to me to potentially be the most viable. Assuming this issue gets to the U.S. Supreme Court, I wouldn't be a bit surprised if the (Republican majority) Roberts Court agreed with Cuccinelli. If that happens, what, exactly, is the Democrats' back-up plan?
I'm not sure what the best response to this is. Cuccinelli's suit argues that the individual mandate in the healthcare bill is unconstitutional: “We contend that if a person decides not to buy health insurance, that person — by definition — is not engaging in commerce, and therefore, is not subject to a federal mandate.” The argument here is that if it's not commerce, then it's not interstate commerce. And if it's not interstate commerce, then Congress has no constitutional authority to regulate it.
I'm not a lawyer, but this seems like the ultimate Hail Mary to me. There's longstanding precedent — hated by conservatives, but only slightly rolled back even by the Rehnquist court — that the interstate commerce clause gives Congress extremely wide power to regulate activity that affects interstate commerce in almost any way, and there's simply no question that the individual mandate is inextricably tied up with interstate commerce. The insurance industry and the medical industry are practically textbook definitions of interstate enterprises, and allowing healthy people to opt out of healthcare coverage has a very direct effect on that business. Frankly, even for an activist conservative court, this seems like a pretty open-and-shut case.
What's more, the penalties for not buying insurance are tax penalties, and if anything, Congress has even wider scope in the tax area than in the commerce area. The Supreme Court has frequently ruled that Congress can pass tax laws that essentially force people to do things that Congress doesn't have the direct power to require.
Bottom line, then: I'm not sure Democrats need a Plan B. But here's the thing: if the Supreme Court decided to overturn decades of precedent and strike down the mandate even though Kevin Drum says they shouldn't (hard to imagine, I know), the insurance industry will go ballistic. If they're required to cover all comers, even those with expensive pre-existing conditions, then they have to have a mandate in order to get all the healthy people into the insurance pool too. So they would argue very persuasively that unless Congress figures out a fix, they'll drive private insurers out of business in short order. And that, in turn, will almost certainly be enough incentive for both Democrats and Republicans to find a way to enforce a mandate by other means. If necessary, there are ways to rewrite the rules so that people aren't literally required to get insurance, but are incentivized so strongly that nearly everyone will do it. As an example, Congress might pass a law making state Medicaid funding dependent on states passing laws requiring residents to buy insurance. Dependent funding is something Congress does routinely, and states don't have any constitutional issues when it comes to requiring residents to buy insurance. They all do it with auto insurance and Massachusetts does it with health insurance. Or, via Ezra Klein, Congress could do something like this. There are plenty of possibilities.
So I don't think this is a big problem. It's basically a campaign issue for Republicans, who want to demonstrate to their base that they're fighting like hell against healthcare reform. It helps keep the issue alive and it helps keep the tea partiers engaged. It's sort of in the same league as their eternal promises to support a constitutional amendment to ban abortion. It's a crowd pleaser, but there's really no chance of ever pulling it off.