The GOP's Last, Best Hope to Hobble Obamacare

As I (and my fellow Gagglers) have written before—see here, here, and here—Republican efforts to repeal President Barack Obama's newly minted health-care reform law are almost certain to peter out as soon as the current political firestorm dies down. For now, the GOP has to make good on a full year of fear-mongering and act like the Bolshevik apocalypse is nigh. But the fact is, they'll simply never have the cojones to cancel tens of millions of new insurance policies, let alone have the 67 Senate votes necessary to override Obama's veto. Short term, the politics of repeal are fine and dandy. Long term, they're disastrous.

But while the legislation as a whole is safe, individual elements may not be immune to challenges. In fact, there's one provision in particular that's on somewhat shaky legal ground, and which, for that reason, could very well become the emblematic focus of Republican opposition going forward, much like the public option before it.

I'm referring to the individual mandate.

Even at this early stage, the GOP's antimandate campaign is well underway. A mere seven minutes after Obama signed the overhaul bill earlier today, a group of 13 (12 Republican, one Democratic) attorneys general filed a lawsuit in federal court in Pensacola, Florida, to stop the government from implementing the legislation. Their argument is that "the Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying healthcare coverage," and that "by imposing such a mandate, the Act exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution."

Do these rogue AGs have a point? Indeed, they might. The basic question here is whether Congress can require everyone to purchase health insurance from a private company under threat of penalty. According to the Constitution's commerce clause, Congress has the power to "regulate commerce . . . among the several states." Traditionally, insurance contracts haven't been considered commerce, which is why they've been regulated by the states. But given that Congress has long been allowed to regulate other "economic" activities—activities that affect interstate commerce, even if they don't qualify as interstate commerce themselves—the Supreme Court isn't likely to object to congressional regulation of health insurance.

The problem, as Georgetown constitutional law professor Randy E. Barnett recently pointed out in The Washington Post, is the individual mandate—or, more specifically, the "unprecedented" way that "the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity." Barnett continues:

While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds.

The closest Congress has come to mandating health insurance is mandating auto insurance. But that's different. When you choose to drive a car, you assume some responsibility for how your actions might harm others, and you purchase insurance against that possibility. But Congress wants to require you to buy health insurance merely because you're alive, and that's not a choice any of us gets to make. When the Congressional Research Service looked into the constitutionality of the individual mandate last year, it couldn't reach a definitive conclusion.

If the GOP's antimandate campaign is to succeed, it will have to follow one of three paths. The first two are strictly legal. Either the current lawsuit wends its way to the Supreme Court, which then declares the mandate unconstitutional, or two thirds of state legislatures demand that Congress hold a convention under Article V of the Constitution to consider an amendment barring the mandate, in which case Congress would probably repeal the measure. The third is political. The Republicans continue to pursue the AG lawsuit. They continue to agitate for an amendment convention. And they continue to pass, on the state the level, opt-out laws like the one passed in Virginia—even though it's legally irrelevant (federal laws override state laws). But despite all the legal hustle and bustle, they don't actually expect to repeal the mandate. They simply want to keep health care on the front burner until November 2010, when they can use it to defeat Democrats at the polls.

The first two routes have little chance of ending in victory. But the third might. Of all the individual provisions in Obamacare, the individual mandate is already the least popular with voters—by far. Only 38 percent support it, according to a recent Research 2000 poll, compared with the majorities that approve of every other proposal, including the much-maligned (and now nonexistent) public option—meaning that it makes a lot more sense politically to attack the mandate than the legislation as a whole. What's more, many of the AGs sponsoring the lawsuit are running for higher office back home. In Virginia, Ken Cuccinelli is vying for the governorship. Same with Henry McMaster in South Carolina, Mike Cox in Michigan, and Tom Corbett in Pennsylvania. Most of the rest are running for reelection. Fighting the mandate gives these candidates an anti-Obamacare campaign theme with legs. As the lawsuits unfold over the next few months, they—and other office-seeking Republicans—will be able to keep the base fired up by saying they're part of a real, ongoing effort to quash the least popular part of Obama's overhaul.

There are some ironies here. Republicans have said they agree that people with preexisting conditions should be covered. But that's the part of Obamacare that necessitates an individual mandate. If none of us were required to purchase insurance when we were healthy, we'd all just wait until we got sick to sign up for coverage then cancel it as soon as we recovered—and that would send premiums through the roof. This is what the arch-conservatives at the Heritage Foundation realized when they originated the idea back in 1990. It's what Iowa Republican Sen. Chuck Grassley had in mind when he said an "individual mandate" meant "individual responsibility" and "even Republicans believe in individual responsibility." ("If you aren't insured, there's no free lunch," Grassley continued. "I believe that there is a bipartisan consensus to have individual mandates.") And it's what Mitt Romney was thinking when he insisted, over Democratic objections, that Massachusetts's 2006 health-care reform plan include fines on residents who refused to buy insurance.

Of course, such nuances have never stopped politicians before, and I don't expect them to now. Obamacare may be here to stay. But I suspect that the battle over the individual mandate is just beginning—even if it's mostly for show.