Et tu, Mitch? (or, how Mitch Daniels has a health-care problem)

By Michael J.W. Stickings

I noted yesterday that Republican desperation is driving the Draft Mitch Daniels movement.

Faced with an embarrassingly bad presidential field, Republicans are doing what they often do, which is look for a savior to rescue them from the abyss, and that savior, it seems, or so they seem to think, is Daniels.

The problem, I also noted, isn't just that Daniels lacks a dynamic personality and engaging charisma but that he's got some blemishes on his record that just won't fly with the Tea Party grassroots base of the GOP, nor perhaps with the social conservatives who continue to wield influence in the party.

He called for a truce on social issues in Indiana, for example, and, even more damaging, once proposed raising taxes. He might as well have been Osama bin Laden's accountant.

Well, there's more -- and it just gets worse. As The Huffington Post is reporting, Daniels has accepted Affordable Care Act money and has supported universal health coverage and... (pause for effect)... an individual mandate. He might as well have set fire to the flag, urinated on its ashes, and defecated upon the very idea of freedom.

But wait. There's still more:

Back in 2003, mandates were very much a conservative idea, making support for them by Daniels -- let alone fellow 2012 Republican presidential candidates Mitt Romney or Newt Gingrich -- either mundane or expected.

But there are other similarities between the health care policies Daniel's passed as governor and those that constitute President Obama's signature legislation. Both, for instance, require insurance companies to allow children to remain on their parents' accounts past traditional ages for college graduation -- Daniels allows dependent coverage up to age 24, Obama up to 26. Both required Medicaid programs to expand eligibility to individuals and families above the poverty level.

Like Obama, Daniels also put a premium on updating hospital records and information sharing. According to a February 21, 2005, Indianapolis Business Journal article, he "ordered the state Department of Health to come up with a regulation that requires every hospital to implement an error reporting system and provide data to the department, which will post it on the Internet." Separately, both Daniels and Obama increased taxes on cigarettes as a means of generating revenue for health care coverage elsewhere (and discouraging smoking).

So there you have it. Daniels, like Romney, has a huge health-care problem that he simply won't be able to overcome.

He hasn't even entered the race yet, but I think it's fairly safe to say he's toast. So much for the Great Republican Savior of 2012.

South Dakota legislators introduce bill requiring all adults to buy a gun

By Michael J.W. Stickings

Five Republican lawmakers in South Dakota have introduced a bill that, if passed, would require all adults over the age of 21 to purchase a firearm "sufficient to provide for their ordinary self-defense":

The measure is known as an act "to provide for an individual mandate to adult citizens to provide for the self defense of themselves and others."

Rep. Hal Wick, R-Sioux Falls, is sponsoring the bill and knows it will be killed. But he said he is introducing it to prove a point that the federal health care reform mandate passed last year is unconstitutional.

"Do I or the other co-sponsors believe that the State of South Dakota can require citizens to buy firearms? Of course not. But at the same time, we do not believe the federal government can order every citizen to buy health insurance," he said.

First, being armed is not the same as having health insurance. We're living in a society, as George Costanza said, not in some Hobbesian state of nature.

Second, the conservative argument that the Affordable Care Act's individual mandate is unconstitutional is deeply flawed. (And the two activist rulings, in Virginia and Florida, against the mandate were both deeply partisan.)

Third... well, here's Jack Balkin:

The irony, of course, is that this is an example of what the federal government could require citizens to do at the founding. All able bodied male citizens were part of the militia, and therefore were required to bear arms in defense of the state. In fact, the federal government passed a militia act in 1792 that required that every citizen purchase a weapon and ammunition.

Oops. Nice try, idiotic South Dakota Republicans.

Balkin again, utterly and brilliantly destroying conservative opposition to the mandate: 

What is lost in the debate over the individual mandate is that the point of the individual mandate is also civic republican in nature. It requires citizens to make a far less significant but also public-spirited sacrifice on behalf of other Americans who cannot afford health insurance. Individuals must join health insurance risk pools to make health care affordable for more of their fellow citizens. This is a very modest request that individuals not be entirely selfish and that they contribute to the public good in a small way by helping to make health care accessible and affordable for all Americans. Indeed, under the terms of the Affordable Care Act, one doesn't even have to purchase insurance; one can simply pay a small tax instead. And one doesn't have to pay at all if one is too poor to do so or has a religious objection.

The notion that being asked to either buy health insurance and make health care accessible for one's fellow citizens--or to pay a small tax-- is a form of tyranny akin to George III's regime is simply bizarre: it shows how perverted and twisted public discourse has become in the United States. The assault on the individual mandate is really an assault on the public duty to assist other Americans in need, and in particular, an assault on the legal obligation to pay taxes to contribute to the general welfare. The assault on the health care bill is not a defense of liberty. It is a defense of selfishness. 

Which is pretty much what the Republican Party is all about, along with a complete lack of regard both for American history and for the Constitution they claim to love so dearly.

Virginia judge rules individual mandate unconstitutional, but Obamacare will prevail

By Michael J.W. Stickings

As you may have heard, a federal judge in Virginia ruled today that a key component of "Obamacare," the individual mandate, is unconstitutional.

As the Times explains, the judge, Henry Hudson (a George W. Bush appointee), determined that "the law's requirement that most Americans obtain insurance exceeded the regulatory authority granted to Congress under the Commerce Clause." (However, he "declined the plaintiff's request to suspend the act's implementation pending appeal, meaning there should be no immediate effect on its rollout.")

I wrote about this case back in August, when Hudson ruled against the Obama Administration's request that it be dismissed.

A few thoughts:

 

-- Republicans, needless to say, are celebrating the ruling and reiterating their call for repeal of the Affordable Care Act. As Steve Benen notes, however, the individual mandate was a Republican idea:

The record here may be inconvenient for the right, but it's also unambiguous: the mandate Republicans currently hate was their idea. It was championed by the Heritage Foundation. [Bob Dole incorporated the individual mandate into his reform plan in '94.] Nixon embraced it in the 1970s, and George H.W. Bush kept it going in the 1980s.

For years, it was touted by the likes of John McCain, Mitt Romney, Scott Brown, Chuck Grassley, Bob Bennett, Tommy Thompson, Lamar Alexander, Lindsey Graham, John Thune, Judd Gregg, and many others all notable GOP officials.

As late as last year, Sen. Chuck Grassley stated publicly that "there [was] a bipartisan consensus to have an individual mandate."

This is about cheap politics. Republican pollsters no doubt told GOP officials that the mandate is a potential vulnerability to the signature Democratic polity priority, so that's where the party is focusing its attention, hoping that the public simply doesn't pay attention to the fact that they're attacking their own idea.

-- Simply put, the individual mandate is essential if health-care costs are to be kept down. If there is no requirement that people buy insurance, only those who are sick (or otherwise at risk) will buy it, driving costs ever higher. You need healthy people (including young adults), people less likely to make claims, to buy into group coverage to make that coverage affordable for those who otherwise can't afford it. I realize that this is separate from the question of the constitutionality of the individual mandate, but it's obvious why the mandate is necessary and why both parties have promoted it as a core and essential component of reform.

-- This would appear to be a significant defeat for Obamacare, but we need to remember that two previous rulings (in Virginia and Michigan) found the individual mandate constitutional. This was a partisan judge ruling against it. As the Times reports, Hudson "has a long history in Republican politics in Northern Virginia." The two judges who ruled in favour of the mandate are Clinton appointees -- perhaps more partisanship, though it's hardly clear, and not necessarily the case, that Democratic appointees ruling for the mandate were acting in a partisan way (that is, perhaps they were ruling on the merits of the case).

Moreover, this case -- Cuccinelli v. Sebelius -- was initiated by a crazy Republican, Virginia Attorney General Ken Cuccinelli. 

-- As Ezra Klein writes, Hudson "refused to overrule anything but the individual mandate itself," leaving the rest of the law intact (again, while allowing enactment to proceed in full):

The real danger to health-care reform is not that the individual mandate will be struck down by the courts. That'd be a problem, but there are a variety of ways to restructure the individual mandate such that it doesn't penalize anyone for deciding not to do something (which is the core of the conservative's legal argument against the provision)... The danger is that, in striking down the individual mandate, the court would also strike down the rest of the bill. In fact, that's exactly what the plaintiff has asked Hudson to do.

Hudson pointedly refused.

In other words, even a Republican judge (who owns part of a Republican consulting firm that worked against reform) only went so far -- and, at that, not very far at all. And so:

[R]ight now, the range of opinions stretch from "the law is fine" to "the individual mandate is not fine, but the rest of the law is." That could create problems for the legislation if the mandate is repealed and Republicans block any attempts at a fix, but it's a far cry from a world in which the Supreme Court strikes down the whole of the health-care law.

Of course, the Supreme Court is rather conservative and hardly likely to be friendly to Obamacare. Still, there is reason to be optimistic even after this decision.

-- I do not pretend to be a constitutional expert, but it does seem to me that Hudson's ruling was erroneous. The Roberts Court may uphold it, but a sensible, non-partisan court, I suspect, would reject it altogether. As Jonathan Cohn put it back in October (via Benen), "the only way to throw out the mandate would be to reexamine conventional assumptions about the Commerce Clause. That would be a fairly radical move."

For more on this (right-wing) radicalism, see Nick Baumann's excellent post at Mother Jones: "Most legal scholars agree with the Obama administration on this. They believe the commerce clause allows Congress to regulate economic decisions, not just economic activity... Drastically limiting the scope of the Constitution's commerce clause (as Hudson would do) is the slippery slope to the libertarian paradise."

-- As I wrote back on August:

Republicans, whipping up blood-curdling public fury with their lies, like the ridiculous claim that there would be "death panels," drew their battle lines early on. In Congress, they were unanimously against reform, even this modest reform package that for the most part they themselves had promoted back in the '90s as an alternative to Hillarycare and that a Republican governor, Mitt Romney, had implemented in Massachusetts. They required Democrats to fight their way through all sorts of legislative hoops, denying clear majority rule. And once the bill passed, they continued to fight, pledging to repeal it if they took back Congress. But they know better, don't they? Or some of them do. They know that it's a losing issue for them, which is why they fought so hard against passage in the first place. Their electoral success, on this issue as on others, depends on public ignorance, but the public can't be kept in the dark forever.

And so these challenges will go forward, in Virginia and elsewhere, but the law will only become more and more a part of the lives of Americans, like Social Security and civil rights. You never know how SCOTUS will rule, of course, and there's a chance part of the law, if certainly not all of it, could be struck down, but I tend to doubt it. Having lost, Republicans are just flailing about, mired in the stink of their own political and ideological extremism, desperate for validation. One judge may have given them what they wanted, but they won't find any lasting success fighting health-care reform.

Judge Hudson's ruling may be a setback for reform, and perhaps even a fairly significant one, but winning a battle here and there does not mean winning the war.

Obamacare is here to stay.