The mandate hangover

While Eric Holder, Kathleen Sebelius, and the White House try the Chip Diller public relations strategy following the ruling yesterday finding the federal health-insurance mandate unconstitutional, other Democrats on Capitol Hill are preparing I-told-you-sos.  The Daily Beast says that Democrats bet it all on the federal mandate making it through the courts, structuring ObamaCare on its foundation to the extent that it cannot possibly survive without it, despite warnings at the time that such a strategy had a high chance of failure.  Now with the first state lawsuit resulting in a loss, these Democrats are regretting their inability to stop it.

And when the Daily Beast says Democrats, they mean …

Republican Senator Olympia Snowe of Maine, who voted for a health-care bill that included a mandate in committee, said that her decision to reject the overall legislation was heavily influenced by its inclusion in the final package.

“I personally thought it was a mistake to require Americans to purchase health-care plans when we could not prove that we were creating affordable health-care plans in that legislation,” she said in an interview. “We didn’t have to go that route on mandating. It was too ambitious, too driven towards this goal of having the government overreach.”

Well, okay, Benjamin Sarlin does note that a couple of Democrats have regrets as well, but not many:

Some Democrats, such as Paul Starr, a former health-care adviser to Bill Clinton, argued last year that the party should ditch mandates to put the bill on firmer ground, perhaps by adding an opt-out that let Americans elect to forgo insurance so long as they agree not to apply for subsidies to buy it if they get sick. President Obama himself originally shied away from endorsing a mandate during the 2008 campaign, in contrast with Hillary Clinton’s plan.

Senator Kent Conrad (D-ND) said that Democrats weighed the dangers of the mandate, but ultimately decided it was sound after consulting with legal experts.

Said Conrad: “Is it conceivable a court could conclude differently? An individual court might, but as you go through the whole process I suspect it will be upheld.”

And it still might.  After all, it’s been almost 70 years since Wickard, and allowing Congressional power under the guise of “interstate commerce” has become a self-propelling habit by the courts, even though the federal government bars interstate health insurance sales (or allows states to bar them).  After Kelo followed a long line of decisions that allowed a city to seize private property for the purpose of handing it to other private owners, I’m not going to bet the house (pun intended) on any Supreme Court upholding the principles of limited government.

This particular court, however, might do it, and that’s a risk that Democrats knew when they wrote this bill. Perhaps they too just assumed that the Wickard ruling that made the Supreme Court more relevant along with Congress would continue to expand infinitely, but obviously not every judge on the federal bench believes that the federal government should have unlimited power.  Instead of structuring health reform around that possibility, they bet the House on the mandate, and lost it in the midterms.  They may well end up losing the bet, too.

If so … what then?  If the Supreme Court decides to expedite the appeal, the mandate could be fully dead before the 2012 elections, leaving Democrats in the Senate an opening to restructure the bill along the lines Starr suggested, while Republicans in the House push repeal.  That would set up the 2012 elections as a plebiscite on the federal mandate as well as the tax hikes postponed until the end of that year — which would make the next cycle look even more like these midterms.  Instead of the hair of the dog, Democrats could end up with a double-dip hangover.

Update: The first sentence in the final paragraph should have read “expedite the appeal,” not “repeal.”  My Freudian slip was showing.

Update II: I also misspelled “public” in a manner for which I’d like to avoid further Freudian references.  Sorry about that.