What do Richard Nixon, George H.W. Bush, Bob Dole, Mitt Romney and Barack Obama all have in common? All of these men supported the extension of health care to more Americans through what is called an “individual mandate.” My conservative friend may rhapsodize about how this individual mandate violates his conservative philosophy. However, in this case, I find that conservative philosophy is no more than a thick intellectual fog concealing motives of political gamesmanship. By piercing through this fog, you will find a story of Republican policy radicalization and Democratic policy compromise.
The individual mandate can better be understood as a “personal responsibility tax” (in Ezra Klein’s phrasing). If you are under 27 years of age, you can stay on your parents’ health insurance. If, like 83 percent of Americans, you choose to buy health insurance, then you receive a tax credit to exempt you. If you cannot afford health insurance, you can receive a hardship waiver to exempt you. But, if you can afford and choose not to buy health insurance, then starting in 2014, you will pay the “personal responsibility tax.” This is meant to persuade the voluntarily uninsured to buy insurance. When these individuals do get sick or injured, we — who do choose to buy health care — are forced to absorb their cost of emergency room treatment. The insured supported the voluntarily uninsured at the cost of $43 billion in 2008. Any microeconomics class teaches that a “personal responsibility tax” or individual mandate is a tax to off-set a negative externality, which otherwise is costing health insurance subscribers billions of dollars a year in increased premiums.
Nonetheless, the 2010 Health Care Reform Law is working its way to the U.S. Supreme Court because of the individual mandate. As of last week, 14 federal judges have dismissed challenges to the law, while two federal judges have ruled that the law is unconstitutional because of the individual mandate. The legal argument centers on whether choosing not to buy insurance falls under the U.S. Constitution’s Commerce Clause, which then would empower Congress to regulate such activity.
The most cogent argument in favor of the individual mandate comes from former Solicitor General Charles Fried, who served for Republican President Reagan. Fried’s argument is best summarized as, “Insurance is commerce. Health insurance is undoubtedly commerce. Congress has the power to regulate … a rule [e.g. individual mandate] for commerce.” Regardless of philosophical ideas on individual liberty, the judicial precedent going back to 1905 ( Jacobson v. Massachusetts) “shows conclusively that the mandate is not an unconstitutional imposition on an individual’s liberty.” This opinion, from a prominent conservative judicial scholar, demonstrates that health care opponents’ lawsuits are far outside the constitutional mainstream. The liberal and conservative scholarly consensus supports the constitutionality of the individual mandate.
Why are Republicans then so vociferously opposed to the individual mandate? The answer is that they were not opposed until it became the key mechanism of Obama’s healthcare reform. The individual mandate was originated from the George H.W. Bush (Republican) White House and supported by Republicans in 1993 as an alternative to Clinton’s health care. Clinton’s health care failed despite adopting Nixon’s employer mandate. Obama health care barely passed despite adopting Bush Sr.’s individual mandate. This debate is emblematic of Democrats compromising towards an illusive political center, which is meanwhile being pulled rightward as Republicans denounce formerly supported policies just as soon as Democrats adopt them. Democrats must stand and fight for progressive policies instead of abandoning them for the hollow hope of legislative bipartisanship.