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ThePlumLIneGS whorunsgov plumline
Posted at 08:51 AM ET, 03/27/2012

The Morning Plum: Three questions that could decide the fate of the mandate

Today, the Supreme Court will hear oral arguments over the constitutionality of the individual mandate. At stake is whether the federal government will be permitted to go forward with a reasonable exercise of Congressional power to solve an urgent national crisis that afflicts millions and millions of Americans.

No one quite knows what the Justices are thinking. But as far as I can tell, today’s arguments will largely turn on three questions:

1) How receptive will the Justices be to the “slippery slope” argument? At some point today, Paul Clement, the lawyer prosecuting the case against Obamacare, will argue that the mandate must be struck down because it opens the door to government having the power to force you to buy anything, an unacceptable intrusion on private decisionmaking.

If the Justices show skepticism towards this case, that could bode well for Obamacare. How might they do this? Perhaps by sharply questioning its premise (would this really empower government to force you to do anything arbitrarily, if so doing wouldn’t solve an obvious and pressing national problem?). Or they could press the point that the health care market is unique, in that everyone will participate in it one day: Isn’t the government simply regulating activity that’s already inevitable?

2) How receptive will the Justices be to the administration’s answer to the “slippery slope” argument? The law’s defenders have argued that under their interpretation of commerce clause, which justifies the mandate, the government would not have unlimited power. Today they will reiterate that even if the mandate is upheld, Congress would not be empowered to trample on areas where states have historically held sway, such as family law, general criminal law, or education.

The law’s defenders will be asked to unequivocally state their theory for where the federal government’s power ends, and how the Justices receive it will be something to watch. Also: How will the Justices react to the argument that the mandate is a reasonable means to the legitimate end of regulating commerce to lower health care costs and reduce the number of uninsured?

3) Will the Justices accept a distinction between the mandate and the penalty? Critics of the law insist it tramples people liberty because it’s all about compelling people to act against their will. But its defenders will argue that the penalty for not having insurance — rather than the act of forcing people to get it — is where the government is exercising its power, and that this application of power is a reasonable extension of government’s ability to tax people.

How the Justices react to this distinction is key.

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* Do the oral arguments matter? Of course, as legal experts tell Ezra Klein, it’s possible that today’s arguments won’t really sway the Justices, since they may have already made up their minds on core questions. But how they react to the arguments today could provide clues to what they are aleady thinking.

* The failure to sell Obamacare: The new New York Times/CBS poll is out in full, and it finds that the health law remains broadly unpopular. A majority (51 percent) disapproves of the mandate, and a bigger majority (67 percent) want the mandate or the whole law repealed.

But here’s another key finding: A huge majority, 85 percent, favors the provision that bans insurance companies from discriminating against people with preexisting conditions. Since most experts think that aspect of the law depends on an individual mandate, it seems clear that law’s proponents failed to persuasively connect these two provisions in the public mind as indispensably linked.

* Public buys “government takeover” argument: One other finding in the above poll: 54 percent think the law creates “too much” government involvement in the health care system. And yet, as Paul Krugman notes, if anything Obamcare is less of a “government takeover” than is Medicare, which is overwhelmingly popular today.

All of which really serves as a reminder that if the argument over this major reform is going to be won by the pro-Obamacare side, it could take years or even decades.

* In defense of the mandate, and what’s at stake today: Jonathan Gruber has a nice piece defending the mandate on the policy merits, explaining why it facilitates a market-based solution to our pressing health care crisis, and detailing why getting rid of it would be disastrous to the fate of Obamacare and the nation.

Key conclusion: “The bottom line is that the individual mandate is necessary for ending discrimination in health-insurance markets, the key accomplishment of health-care reform.”

* Whatever happened to “repeal and replace”? Mitch McConnell basically admits to Ramesh Ponnuru that Republicans don’t have a serious alternative to Obamacare:

He doesn’t favor comprehensive legislation to replace it. “We would want to more modestly approach this with more incremental fixes,” he told me. “Not a massive Republican alternative.”
Two ideas McConnell mentions are allowing people to purchase health insurance across state lines and reforming medical-malpractice laws. Neither idea would do much to increase coverage....

Okay, then. Now what?

* The mandate was originally a Republican idea, remember? N.C. Aizenman has a long piece detailing the individual mandate's journey from sensible Republican market-based reform to existential threat to the American way of life once Obama touched it.

In this context, as Jonathan Cohn notes, the fact that the challenge to the mandate has gotten this far shows that in some ways the right has already won.

* Another anti-Obamacare talking point goes “poof”: Glenn Kessler knocks down the ubiquitous claim that the Congressional Budget Office found that Obamacare’s cost suddenly doubled. In fact, CBO’s estimates changed little (though Kessler does find serious flaws with the Dems’ original sales pitch for the law, and allows that costs are ultimately unpredictable).

* GOP primary is all but over: Scott Conroy on Rick Santorum’s last stand: If he goes zero for three in next Tuesday’s primaries in Wisconsin, Maryland and Washington, D.C., party leaders will ount severe pressure on him to step aside, which would allow Romney to escape a dynamic that continues to badly damage him with swing voters.

* And is it time for a new GOP message on the economy? Some House Republicans want John Boehner to shift from blaming Obama for the bad economy to taking credit for the recovery, which underscores the difficulty Republicans will face with their messaging if the economy continues to improve.

As Romney has discovered, it’s not easy to pivot from “you’re at fault for making things worse” to “things are getting better in spite of you.”

What else?

By  |  08:51 AM ET, 03/27/2012

 
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