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Take the Mobius strip that is the individual mandate (lingo for requiring everyone to obtain health care coverage, one of the more controversial elements of the health care reform package President Barack Obama signed into law). Try to follow this one: When then First Lady Hillary Clinton led the charge for health care reform in the 1990s she attempted to force employers to cover all their workers (what’s called an employer mandate). Republicans, marching under the banner of personal responsibility, countered with health care reforms that relied on an individual mandate.
Cut to 2008. Then Senator Barack Obama puts forward a health care reform proposal that includes neither an employer nor an employee mandate (although it did require all children to obtain coverage, which would be what, a kiddie mandate?). Then Senator Hillary Clinton rightly chastises her campaign opponent for being unrealistic. If carriers are to be required to accept all applicants regardless of their pre-existing conditions, then everyone needs to be in the insurance pool. Otherwise the system won’t work. Prices will skyrocket as everyone waits until after they need medical care before they buy health insurance. Nay, nay, says the future President.
Until he becomes President. At which time he makes the individual mandate a central component of his overall health care reform plan. Where do Republicans stand on the individual mandate? Having promoted the idea during the Clinton Administration they now oppose it during the Obama Administration. And the trip around the Mobius strip is complete. (Well almost. With a real Mobius strip you wind up back where you started. If history is any guide, however, it is inevitable that one day the GOP will defend the individual mandate as a true expression of personal responsibility. So it’s only a matter of time until the Mobius journey is complete). Given all this it’s kind of a shame that now Secretary of State Clinton doesn’t get one of the 22 pens used by the President to sign the health care reform bill.
But wait, there’s more. Today’s Republicans are so aghast that yesterday’s Republicans proposal for an individual mandate is now part of President Obama’s health care reform law they’re going to court. Well, not Republicans per se. But 14 states are suing to overturn the new health care reform bill and it just so happens that 13 of the 14 Attorneys General filing the suits are Republicans. (The 14th is a Democrat from Louisiana which. There’s a joke there somewhere, but I’m taking a pass).
As the Christian Science Monitor reports, the suits have two basis. First, that “the new law infringes the liberty of individual state residents to choose for themselves whether to have health insurance. It also says the states themselves are victims of a federal power grab by leaders in Washington” because of changes made to Medicaid.
For now, let’s just focus on the claims about whether the individual mandate is unconstitutional. Because this is where Alice’s looking glass comes returns to center stage. It seems there’s a relatively recent Supreme Court precedent that makes this challenge an uphill climb. The ruling, in which conservative Justices Antonin Scalia and Anthony Kennedy joined the 6-to-3 majority according to the Los Angeles Times held that “Congress could regulate (an item) that was neither bought nor sold on the market ….”
Which puts those two Justices and their colleagues in a bit of pickle. Because in order to rule the health insurance law unconstitutional they will likely need to overturn at least certain aspects of this earlier case, Gonzales vs. Raich. And that is something conservatives would like to avoid as that case was about the legality of growing and selling marijuana for medical purposes, something California law permitted. In ruling that the federal government could prevent a state from regulating transactions that occurred solely within its borders, the Supreme Court found the federal government had broad regulatory powers.
The substance of the case that will determine whether an individual mandate is constitutional is important and will have long-term ramifications for the country. But that’s not amusing. What’s amusing is that the suits put conservative Supreme Court justices between a rock and cloudy place.
Health care reform is a serious issue. But you do have to admit there are times when laughter is a more appropriate reaction than jubilation, anger or fear. Not always, but sometimes.