Lessons From The Individual Mandate For Republicans Seeking A Resurgence Today

The Supreme Court will consider whether setting Obamacare’s individual mandate tax to $0 renders the mandate unconstitutional, and if any other parts of Obamacare should fall with it.

In a few weeks, health care will once again take center stage at the Supreme Court. In what has become a semi-regular occurrence, the justices will soon rule on a case focused on two central questions: Whether Congress’ 2017 decision to set Obamacare’s individual mandate tax to $0 renders the mandate unconstitutional, and if so, what if any other parts of Obamacare should fall with it.

In advance of the impending ruling, John McDonough recently wrote a history of the individual mandate over the past 30-plus years in a lengthy essay for Politico. McDonough, a Massachusetts native who worked for Sen. Ted Kennedy, D-Mass., during the debate on Obamacare, supports the law, and the state-level efforts in Massachusetts (a.k.a. “Romneycare”) that preceded it.

Despite, or perhaps because of, his liberal perspective, McDonough highlights the fact that the movement that led to the mandate’s enactment originally started on the right, with the Heritage Foundation. The essay provides another in-depth reminder of the need for conservative organizations to promote conservative policies. It’s an important lesson for thinkers on the right to remember as they create plans to counter the Biden administration.

Alternative to ‘HillaryCare’

McDonough focuses on Stuart Butler, Heritage’s erstwhile senior analyst for domestic policy. Butler, who now works at the Brookings Institution, promoted the mandate concept beginning in the late 1980s; it eventually became part of Heritage’s response to the Clinton health plan of 1993-94.

But as McDonough notes, even in the 1990s, other conservative groups raised concerns about the constitutional implications of requiring all individuals to purchase a product (i.e., health insurance). Heritage retained its support for the mandate, but some members of Congress backed away in 1994, while other groups never endorsed the mandate to begin with.

The mandate returned again in 2006, when Republican Gov. Mitt Romney worked with the Democratic legislature in Massachusetts—and analysts at Heritage—to enact a health-care package with a state-level requirement to purchase coverage. The architecture of the Massachusetts package bore a more-than-incidental resemblance to the health-care law Congress ultimately passed, and Barack Obama signed, in 2010.

Some Republicans said nice things about “Romneycare” in the initial months after its passage. (My former boss, Sen. Jim DeMint, R-S.C., was one of those individuals; while he made the comments before my time on his staff, he always maintained he did so primarily to elevate Romney’s 2008 candidacy to thwart then-Sen. John McCain’s, R-Ariz., quest for the presidential nomination.) Also, a health insurance mandate imposed by states, which have general police powers over their citizens, raises fewer constitutional questions than a federally imposed requirement; states can impose insurance mandates, even if one believes they should not do so.

But when the Tea Party movement rose up in opposition to Obamacare—not only its individual mandate, but its overarching theme of greater government involvement in health care—organizations like Heritage faced a dilemma.

Exercise in Self-Justification

That dilemma played out in full public view. Shortly before the U.S. Supreme Court heard oral arguments on the constitutionality of the individual mandate in March 2012, Butler penned an op-ed in USA Today in which he did a 180 on the policy:

A fair enough point, as far as it goes. But it failed to answer a basic question: If Heritage now believed a federally imposed individual mandate violates the Constitution, why did it ever argue for such a policy in the first place?

On those grounds, Heritage’s argument fell flat. A decade ago, in May 2011, Heritage filed an amicus brief with the 11th Circuit Court of Appeals, responding to the Obama administration’s citations of Butler’s earlier works to defend the individual mandate. The Heritage brief attempted to justify the organization’s prior silence on the mandate’s constitutionality in a dubious footnote:

This statement ignores the many legal and constitutional analyses—for instance, on the Equal Rights Amendment—that Heritage published from its founding in 1973 until the creation of its legal center in 2000. (Does Heritage really want to argue that it ignored the constitutionality of federal statutes for the first 27 years of its existence?) It also ignores that the same Heritage analysts who promoted the mandate in the 1990s—without, in Heritage’s view, analyzing its constitutionality—had no problem publishing analyses calling the mandate unconstitutional decades later.

Lessons for Policy Analysts

With the Biden administration proposing trillions of dollars in new spending and tax increases, conservatives need to take the opportunity to develop alternative policies they can work to enact once Republicans take back one or both chambers of Congress next year, and the White House in 2024. The saga of Heritage and the individual mandate provides important lessons for that process. Here are a few.

The way to promote conservative policies is to promote conservative policies. Particularly when in the minority, conservatives need to propose policies that will stand the test of time, not “less-liberal” proposals that they may need to run away from 10 or 20 years hence.

Yes, the legislative process often requires compromise and accepting half a loaf. But those outside of Congress should always push for the most conservative policies possible, rather than negotiating against themselves by proposing weak half-measures that lawmakers will water down further.

If you make a mistake, own it. Its tortured efforts regarding the mandate—trying to parse its proposals with details of the Obamacare mandate, or implying it undertook no constitutional analysis for its first quarter-century—make Heritage look less like a nonpartisan research institution and more like a self-serving group of politicians trying to evade responsibility. Think tanks in particular should “call balls and strikes” on policy. If that means calling out one’s own prior efforts for flaws, so be it.

With these principles as guideposts, hopefully the conservative movement can develop, and eventually enact, proposals to undo the harm the Biden administration inflicts over the next four years.

The individual mandate was pushed by Republicans (including the Heritage group) as a way to make Obamacare too ridiculous for even the Dims to vote for.

But the Dims voted for it anyway. Not one Republican voted for Obamacare. The Dims own Obamacare, including the mandate. Blaming the Republicans for the mandate at this point is like blaming Republicans for slavery or segregation or abortion.

It is really a discussion on whether the TX judge made a correct call a few years ago. He ran with Justice Roberts’ famous logic, that the mandated penalty was a tax, thus keeping OCare alive. The penalty being erased by congress, the entire OCare system falls.

Will Chief Justice Roberts agree with Chief Justice Roberts?

I doubt the Supreme Court will eliminate Obamacare in its entirety, especially the expansion of Medicaid. The Supreme Court may rule that since Congress set the tax penalty to $0, the mandate is voided. The Supreme Court may adjust Obamacare by ruling that insurance companies can’t be forced to lower their premiums to that dictated by the federal government because the mandate guarantees that more young healthy individuals will be forced to buy health insurance. The Republicans won’t pay a political price for voiding the individual mandate.

I doubt the Supreme Court will eliminate Obamacare in its entirety, especially the expansion of Medicaid.

I don't think they'll have a choice. The individual mandate was key to the entire plan. Strike that down as illegal and the rest has to go with it.

The Supreme Court may rule that since Congress set the tax penalty to $0, the mandate is voided. The Supreme Court may adjust Obamacare by ruling that insurance companies can’t be forced to lower their premiums to that dictated by the federal government because the mandate guarantees that more young healthy individuals will be forced to buy health insurance.

The Supreme Court can't rewrite legislation, that Congress's job.

The Republicans won’t pay a political price for voiding the individual mandate.

But if it all goes, as I expect it will, then there's the potential for political fallout. Especially when the media talks about millions of people losing their coverage day after day.

You make logical arguments. Sadly, logic isn’t at play with politics. Given this Roberts court, I’m expecting them to say that since a dollar figure was set, even if at $0, it wasn’t eliminated so it still stands. Roberts will find a way to keep Obama’s legacy and Pelosi’s greatest achievement (their words, not mine) going. The alternative would be having the dirt on him get out.

You are very likely correct. Roberts and Kavanaugh signaled where they are leaning in regards to severability.

Justice Kavanaugh told Verrilli, “I tend to agree with you that it’s a very straightforward case for severability under our precedents, meaning that we would excise the mandate and leave the rest of the Act in place, reading our severability precedents.” The Chief Justice found it to be “compelling evidence” that Congress did not want the rest of the ACA to fall when it reduced the penalty to $0 but did not repeal the rest of the law. He stated, “I think, frankly, they wanted the Court to [repeal the rest of the Act]. But that’s not our job.” Justice Kavanaugh, in a question to Texas, asked whether Congress intended in 2017 to preserve protections for people with preexisting conditions, noting, “It sure seems that way from the - - the record and the text.”

The key argument in this case rests on the lack of a severability clause. IIRC from ObamaCare's debates, such a clause was left off not by oversight, but intentionally by its 100% Democratic authors. Such clauses are commonly included, so that if parts of legislation are ruled unconstitutional other parts of it remain in force. IIRC, the authors claimed that ObamaCare was such a carefully crafted whole that it would not work as intended without all therein. More cynically, it can be argued they were creating a political argument: courts, which might be willing to trim bits around the edges from a year's legislative labor, would be reluctant to wholly throw out Saint Barack's main legacy. Which was realized in Robert's infamous decision.

Severability clauses and their consequences whether or not present, are standard bits of legalese. If my recollection is correct that they are not only absent here, but intentionally absent, it would require purely political judicial chutzpah, even greater than Robert's original decision, to judicially add them. The whole thing should be struck down, back to status quo ante. Any messy consequences arising from the reversion would not be the fault of this Court, but rather the true legacy of ObamaCare and of John Roberts for postponing its end. Any bits popular enough to deserve survival are not the responsibility of the judicial branch to save, but rather the responsibility of the legislative branch to replace, if it can, and of the executive to then sign into new law, if it chooses.

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