Democrats Got Exactly What They Wanted With Unconstitutional “Individual Mandate”

Last Sunday, Robert Reich wrote a fine analysis of the 11th Circuit decision ruling that the “individual mandate” is unconstitutional:

“Had the President and the Democrats stuck to their guns during the health-care debate and insisted on Medicare for all, or at least a public option, they wouldn’t now be facing the possible unraveling of the new health care law.”

He goes on to explain (as does the 11th Circuit decision) that had the mandate been funded by payroll taxes instead of a compulsory buy-in, there would be no question about its constitutionality.

Unfortunately Mr. Reich’s analysis fails to point out why the President and Democrats did not “stick to their guns.” Instead he offers the same liberal hand-wringing that is so common these days: “Chalk up another one for the GOP, outwitting and outflanking the President and the Democrats.” The bumbling nice guys with their hearts in right place get screwed by the heartless, cunning corporate henchmen.

Hello, that’s exactly what the Democrats want you to think. That way they can continue to serve the same corporate interests as Republicans and pretend otherwise.

After President Obama was elected in 2008, Democrats understood that they had to deliver some sort of healthcare reform. If they didn’t, all those video vignettes of people who lost their houses and declared bankruptcy because the insurance company kicked them off the rolls were going to come back to bite Democrats in the ass.  Not to mention that it was a good idea.

Democrats knew the insurance companies would punish them harshly if they did the right thing. That is, tell the American people that insurance premiums are really just another tax. And that Americans would be better off spending less money on Medicare that, despite its shortcomings, managed healthcare costs a shitload better than the insurance companies. In other words, Democrats could have, and should have, offered up Medicare or a reformed version of Medicare as a competitive alternative to status quo healthcare. The campaign slogan? “It’s one more option. It’s still your choice.”

Instead the Democrats decided to cover their collective asses to insure lucrative campaign donations from the very industry they were about to regulate–insurance companies.

Here’s what they did behind closed doors. They got the insurance companies together and said, “Look assholes, you have a problem and it’s going to get worse. You’ll have a full scale revolution on your hands if you continue to refuse coverage to people with dubious preexisting conditions and to deny coverage to folks who have been paying your premiums all their lives. We may even have to really do something about that, if you get our drift. So play ball, let us reform the industry to get rid of preexisting condition denials and few other things. In exchange, we’ll open up a vast untapped market for you and we’ll even guarantee to pay for some those pesky sick folks and you can still charge as much as you want to.” Such a deal.

Most Democrats never intended to pass a public option or “Medicare for all.” Those that did were living in a mush-headed liberal Twilight Zone.

Glenn Greenwald and others confirmed that back in 2010:  “Now it is conclusively clear that Obama never wanted the public option from the startRuss Feingold said as much, and The New York Times revealed that Obama secretly negotiated away the public option in deals with industry representatives very early on in the process.  Thus, critics who were complaining that Obama was publicly claiming to want to the public option while ensuring it would not be enacted were correct, while those who kept telling their readers that the fault lay with Democratic members of Congress — not Obama — were engaged in pure apologia.

The Congressional findings for the “Patient Protection and Affordable Care Act” read like a slave trader’s sales brochure:

“The [individual mandate]requirement, together with the other provisions of this Act, will add millions of new consumers to the health insurance market, increasing the supply of, and demand for, health care services, and will increase the number and share of Americans who are insured.”

The 11th Circuit decision also recognized, “In reality, the primary persons regulated by the individual mandate are not cost-shifters but healthy individuals who forego purchasing insurance.”

“Congress sought to mitigate its reforms’ regulatory costs on private insurers by compelling healthy Americans
outside the insurance market to enter the private insurance market and buy the insurers’ products. This starkly evinces how the Act is forcing market entry by those outside the market.”

To be fair, the dissent noted that many of those outside the market still took advantage of health services like emergency room visits, etc. It also took the majority to task for for its inference that once in the market, a consumer could be subject to a requirement to stay there. “The majority’s imposition of a strict temporal requirement that congressional regulation only apply to individuals who first engage in specific market transactions in the health care services market is at war with the idea that Congress may adopt “reasonable preventive measures” to avoid future disruptions of interstate commerce.”

Indeed , both the majority and the dissent recognized that “individual mandate” is a unique factual application of Congressional  powers to regulate under the Commerce Clause of the Constitution.

Unconstitutional or not, the “individual mandate” is just a bad idea. A bad idea, cynically devised by Republicans and Democrats to please the only constituents who matter–corporate constituents.

If the Supreme Court finds that the individual mandate is unconstitutional, the Democrats will shrug their shoulders, wring their hands and blame the nasty, hard-hearted Republicans asking, “What can we do? We tried.” Meanwhile, insurance companies will raise their rates because they have to pay for the reforms somehow. (There are no limitations to premium increases in the “Affordable” Care Act.)  So in that scenario everybody wins. Insurance companies make more dough to contribute to Democrats who would rather look well-meaning losers than risk losing their jobs.

If the individual mandate is constitutional, everybody really wins.

Of course, you’re nobody when politicians talk about everybody.

My bet is that Cardinal Scalia and his gang will find that the “individual mandate” is constitutional and that the decision will be unanimous. The liberals on the court will want to justify the healthcare bill and the conservatives will agree, contrary to the 11th Circuit’s analysis, that “a future Congress similarly would be able to articulate a unique problem … compelling Americans to purchase a certain product from a private company.”

In a few years, after “drill baby drill” policies create a glut of American oil, Congress can develop some cockamamie rationale to require us all to buy Cadillac Escalades rather than investing tax revenues in public transportation.

For more legal analysis of the case, click here.

One Response to Democrats Got Exactly What They Wanted With Unconstitutional “Individual Mandate”

  1. The original purposes of ACA are setup up one-payer system, public option, outlaw health insurances from excluding people who hvve pre-existing health conditions.

    GOP demanded to replace “public option” with individual mandate due to pressure and lobby by insuracne companies.

    Now GOP is screamming it is unconidtional to have mandate provision — well, it was their idea! GOP is a bunch of hypocrites playing political games on tax payers’ money.

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