Post-mandate politics?

posted at 12:30 pm on March 28, 2012 by Karl

Yesterday's questions from Justice Kennedy have the left fearing and the right hoping the Supreme Court will strike down Obamacare's mandate.  People may be getting ahead of themselves.  Indeed, people are jumping aheard to discuss the one scenario in which the mandate is struck, but the rest of the law remains.  The speculation is intriguing, however premature.

According to the New York Times, house organ of establishment progressivism, Democrats and Republcians have given little thought to the possibility:

White House officials said that they remain confident that the Supreme Court will uphold the law, and that they have done no planning for the possibility of its full or partial demise.

Congressional leaders in both parties also said there had been no significant contingency planning.

The cynic in me finds that hard to believe.  However, reading Dalia Lithwick or Michael Kinsley would suggest that liberals simply could not conceive of an unfavorable Court decision on Obamacare.  For reasons I may write about later, the idea that Democrats are this much in denial about the possibility seems more plausible to me than it did a year or even a month ago.

The odd couple of Steven Den Beste and Robert Reich think that if only the mandate is truck down, Dems will push for a single-payer system.  As Den Beste explains:

Single Payer is what they always wanted. The bill wasn't originally written that way, though, because they knew that even with twin Democratic majorities, there was no chance of passing it. So they included the mandate instead.

If the mandate is struck down, then Congress will have to act. There won't be any way to repeal the rest of the law because Obama will veto, and the Senate will sustain the veto. The only thing he will agree to is implementation of single payer.

Reich expands:

If the Supreme Court strikes down the individual mandate in the new health law, private insurers will swarm Capitol Hill demanding that the law be amended to remove the requirement that they cover people with pre-existing conditions.

When this happens, Obama and the Democrats should say they're willing to remove that requirement – but only if Medicare is available to all, financed by payroll taxes.

I think Den Beste and Reich are mistaken here, for a number of reasons.  Both recognize Obama embraced the mandate because he could not get single-payer, even with an overwhelmingly Democratic House and 60 Democratic Senators.  Yet, after this unpopular law is further discredited by the Supreme Court, there is going to be some surge of momentum for full-on government-run healthcare?  Not in a GOP Congress elected in large part on opposition to Obamacare — and there is little reason to believe both chambers will not remain under GOP control after the election.  Indeed, Obama will lose the ability to veto changes to Obamacare if he loses reelection, and Congress will have time to see whether that happens. 

Even if Obama were to be reelected, there are a number of reasons why a GOP Congress likely would hold the upper hand.  First, the reason Democrat super-majorities had difficulty passing Obamacare and rejected single-payer is because insurers, phramaceutical companies, and the healthcare industry generally have a lot of clout.  None of the so-called "stakeholders" want single-payer and they donate to politicians across the spectrum.  Second, the spectre of insurers going bankrupt — or being nationalized — would not play well for the president who promised you could keep the coverage you have.  Third, while the mandate is particularly offensive to conservatives and libertarians as as the embodiment of the idea that the federal government can force you to buy things, it is offensive to the mushy middle primarily as the mechanism by which they are forced to pay.  Robert Reich may think these people are excited to shell out payroll taxes to finance Social Security and Medicare; I am less convinced of that.  Indeed, while polls tell us most do not want to "cut" these entitlement programs, one lesson of Obamacare ought to be that people know our public finances cannot afford another costly entitlement.

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