Jonathan Cohn: Why Friends Don't Let Friends Support the Republican Party: Health Care Mandate Edition

JC:

Constitutional Critics Of The Affordable Care Act Aren't Telling You Something: Is there an honest constitutional argument against the individual mandate? Of course there is. The constitution is ambiguous and open to conflicting interpretations. But are the people making constitutional arguments against the mandate being honest? Count me as very skeptical.

As you probably know by now, many of the conservatives in high dudgeon about the individual mandate had no problem with it when it was a staple of Republican health care proposals.... Only after President Obama endorsed the mandate did they decide it was not just bad policy but an act of full-blown tyranny. Was this epiphany? Or political opportunism?...

I don't understand is how these people can, on the one hand, reject enactment of the Affordable Care Act and, on the other hand, accept the existence of a program like Medicare. That is precisely what many of them argue and what Judge Roger Vinson stated in his opinion this week. Both Medicare and the Affordable Care Act perform the same essential function: Providing access to affordable medical care in exchange for ongoing, fixed contributions based on income. The key difference is that Medicare historically required people to enroll in a government-run program while the Affordable Care Act will give people the option of enrolling in private insurance plans or, barring that, paying an income-related penalty to offset the eventual cost of their uncompensated care.... [S]urely the Affordable Care Act is the lesser intrusion on liberty....

Now, the mandate critics do see one other distinction between Medicare and the Affordable Care Act. Americans pay for the former via paryoll taxes and for the latter through either insurance premiums or the penalty. The former clearly falls within the constitution's taxing power but the latter, according to the critics, does not. I think that's a pretty shaky distinction.... As Ezra Klein wrote on Wednesday, "I don't believe our forefathers risked their lives to make sure the word 'penalty' was eschewed in favor of the word 'tax.'... [T]he strident critics of the Affordable Care Act's mandate--i.e., the ones invoking the tyranny of King George III--should be outraged by Medicare's payroll taxes, too. 

And most of them probably are.... [ T]hese thinkers on the right know the public won't entertain moral objections to Medicare any more than the courts will entertain constitutional ones. It's settled law and, for the most part, settled policy. So they don't challenge Medicare, except to argue for privatizing it--which, as it happens, would turn Medicare into a program that looks almost precisely like the Affordable Care Act. Gee, do you think they'd argue that's unconstitutional too?

Conservative Opponents Of The Individual Mandate, Meet Conservative Proponents Of Social Security Privatization: The conservative legal brief against the Affordable Care Act rests heavily on a simple proposition. Government can’t make us obtain private insurance because, as the argument goes, that would be forcing us to buy a private product.... [Consider] Social Security privatization. You remember privatization, don’t you? The idea was to take Social Security, a mandatory public pension program, and turn it into a system of mandatory personal investment accounts. The schemes evolved over time, with different details, but the gist was always the same. During your working years, you’d make contributions into the accounts, just like you currently pay taxes that fill the Social Security Trust. Over time, you would invest the money in your private account—that is, you’d buy stocks, bonds, and so on—typically within certain guidelines set by the government. Once you hit retirement, you’d start to withdraw from the accounts or perhaps purchase an annuity, relying on subsequent payments for your financial security.

Conservatives presumably thought privatization was constitutional; otherwise, they would not have worked so feverishly to enact it. But if the principle holds for old-age insurance, it ought to hold for medical insurance, too....

The truth.... Some of the Affordable Care Act's critics are mere opportunists, while the rest are more extreme libertarians who oppose all mandatory schemes of social insurance. But even the hard-core libertarians understand political reality. Social Security is too sacrosanct to attack, politically and constitutionally, so they will make do with privatizing it. The same goes for Medicare, which they dare not challenge directly. But the Affordable Care Act is vulnerable, so they trying for full repeal, making whatever arguments necessary to achieve that goal.