Day Three Reax: Can Obamacare Survive Without The Mandate?

Some highlights from today's oral arguments:

Allahpundit thinks Sotomayor's argument in favor of severability, heard at the end of the video above, has some merit:

The argument for having the Court kill the whole thing is more pragmatic than legal, I think — no one wants to see insurers go out of business because Congress ends up gridlocked and paralyzed on yet another issue. But don’t forget (a) the insurance industry has a lot of political muscle and they’ll bring the full force of it to bear on incumbent congressmen to find a solution and (b) given that we’re all going to have to put on our big-boy pants soon to reform Medicare, maybe a crisis now will be a wake-up call in forcing Congress to start thinking big. Surely they wouldn’t sit idly by while America’s health insurance industry disintegrated around them. 

Justice Kennedy appeared skeptical of Sotomayor's point. Lyle Denniston believes that Obamacare's Medicaid expansion could be in danger:

Unless a closing oration by a top government lawyer stirs some real sympathy for the poor, the new health care law’s broad expansion of the Medicaid program that serves the needy may be sacrificed to a historic expression of judicial sympathy for states’ rights.  It probably would require the Court to be really bold, to strike down a program passed by Congress under its spending power, and to do so for the first time in 76 years, but the temptation was very much in evidence in the final round of the Court’s hearings this week on the Affordable Care Act.  It probably would be done by a 5-4 vote.

Adam Serwer explains why the Medicaid provision matters:

Despite all the focus on the individual mandate and whether it could be severed from the rest of the law, the constitutionality of the law's Medicaid expansion, which was also considered Wednesday, could have a more dramatic impact on Americans' health care. That expansion will lead to 16 million more Americans being covered, about half of the entire number of people who would receive coverage under the Affordable Care Act. 

Jeffrey Toobin grows increasingly depressed:

This still looks like a train wreck for the Obama Administration, and it may also be a plane wreck. This entire law is now in serious trouble. It also seems that the individual mandate is doomed. I mean, Anthony Kennedy spent much of this morning talking about if we strike down the individual mandate, how should we handle the rest of the law? Now, it is less clear that they are going to strike down the whole law. There does seem to be some controversy in the court about that. Certainly there are some members of the court, Antonin Scalia, Justice Alito, who want to strike down the entire law, but it seemed almost a foregone conclusion today that they were going to strike down the individual mandate, and the only question is does the whole law go out the window with it?

Matt Steinglass doesn't see Obamacare's slippery slope:

Whether or not you think they're a good idea, individual mandates are clearly a rational-seeming way to solve problems in the health-insurance market, rational enough that they appealed to the Heritage Foundation, Republicans in Congress, Mitt Romney and so on, and eventually (and reluctantly) to Democrats. But I can't think of any other area of the economy or society where having the federal government order every citizen to buy a good from a private provider seems like a reasonable solution to a problem, or has seemed so to anyone else, Democrats, Republicans, or what have you.

Lee Harris is more imaginative:

Imagine that our current recession goes on, or even takes a turn for the worse. As John Maynard Keynes argued, in a time of economic anxiety and uncertainty, individuals will invariably act in a way that secures their own personal welfare, but which is disastrous to the overall economy: They will sit on their money and refuse to spend it. The bulk of Keynesian economics was to figure out how to get people back to spending their money on stuff, i.e., to increase the aggregate consumer demand….[W]hat if the president had a new super-Keynesian tool—a Congress that had been granted unlimited power to regulate economic activity and/or economic decisions? Under these circumstances, in the midst of a deepening and intractable depression, there would be a temptation to create a legislative solution that would be quite simple in principle. According to an index of their income, people would be mandated to purchase a certain amount of consumer goods. If they fell below this amount, they would then be compelled to pay the government a penalty.

David Bernstein believes there is no limiting principle:

So far, we seem to be left with the “health care is special” argument, which is not a limiting principle, but could persuade a conservative justice or two to join a limited holding. Yet Justice Kennedy suggested today that if the ACA is upheld, the government will soon be back arguing that some other sector of the economy is “special.” 

Jacob Sullum agrees:

Congress creates a "comprehensive scheme" and finds that people are behaving in ways that interfere with it. It sets agricultural quotas, but a farmer grows more than allowed. It bans marijuana, but a cancer patient grows her own for medical use. It says health insurers must take all comers and charge them all the same rates, but young, healthy people refuse to participate, creating a danger of adverse selection. This does not seem like a limiting principle to me. If anything, it's an expansionary principle, since a regulatory scheme becomes more constitutional as it becomes more intrusive.

Akhil Reed Amar identifies a different sort of limiting principle:

The most important limit, the one we fought the Revolutionary War for, is that the people doing this to you are the people you elect. That’s the main check. The broccoli argument is like something they said when we were debating the income tax: If they can tax me, they can tax me at 100 percent! And yes, they can. But they won’t. Because you could vote them out of office. They have the power to do all sorts of ridiculous things that they won’t do because you’d vote them out of office. If they can prevent me from growing pot, can they prevent me from buying broccoli? Perhaps, but why would they if they want to be reelected? 

Kevin Outterson suggests another one:

[C]ar mandates and broccoli mandates lower prices through production scale effects, if at all.  Health insurance mandates are not based on scale, but on risk pooling – having healthy people in the pool lowers the average cost. That’s a clear limiting principle. 

Jack Balkin echos:

Why not broccoli? There is no moral hazard problem created when people refuse to buy broccoli. It's true that buying and eating broccoli might make you healthier, but people don't wait until they are sick to buy broccoli. That's because broccoli is not going to do them much good at that point. In this sense, broccoli doesn't work like health insurance.

Jonathan Bernstein argues that Court's decision won't affect the 2012 race:

If Romney believes that he’ll be helped by calling ACA an unprecedented power grab, he won’t be prevented from doing that if the Justices decided it’s constitutional. If Barack Obama wants to brag about the popular bits of health care reform (and the individual mandate is certainly not one of those), then he’ll do so, regardless of what the Court thinks. That’s probably true even in the unlikely event that the entire ACA is thrown out, but it’s certainly true if the law is only partially tossed. 

Ed Kilgore differs:

[A] decision invalidating the individual mandate would change the dynamics of the general election in ways that might prove uncomfortable to the GOP. Currently the Republicans “Repeal!” position is attractive, or at least not repellent, to a wide range of people with a wide range of concerns about ObamaCare, including those who would strongly support for more aggressive federal efforts to expand health care coverage or ban discrimination by private health insurers. If the individual mandate goes down, and with it prospective prohibitions on prexisting condition exclusions, the health care debate during the general election campaign will shift from scrutiny of ObamaCare from what, if anything, Republicans are prepared to offer.

Which is Frum's point. And that debate would be worth having, wouldn't it? It might actually boost Obamacare and the Dems in so far as at least they are trying to tackle the problem of exploding costs and imploding coverage. Jeffrey H. Anderson questions Romney's commitment to Obamacare repeal:

Romney said just last week that we need “to abolish” Obamacare, “root and branch.” But if the Court snips away the most visible part of Obamacare and removes it from public view, would Romney still be determined to pull out the rest, and would he make it a centerpiece of his general-election campaign?

The trouble with Romney is that it's impossible to know. But my sense is that he'll do what the base wants. I think his own insecurity will make him pander further and further to the right in a polarized country. Scott Galupo imagines the day after Obamacare:

I predict that Congress’s first order of business, before addressing the plight of the uninsured, will be to reinstate, as a stand-alone measure, the section of Obamacare that closes the so-called “Donut Hole” of the Medicare Part D prescription drug program. The reason is simple. Congress—all of it, not just one party—is over-responsive to the demands of wealthy seniors. If and when they find out they’re going to be adversely affected by the overturning of Obamacare, seniors are going to raise holy hell. 

And Josh Barro bets that abolishing Obamacare would lead to single-payer:

Strike down Obamacare, and only the Left will have a viable plan for universal coverage, and it will be one even less palatable to conservatives than the one that was enacted in 2010. Absent another viable proposal, they will eventually get their way, and Medicare For All will become a reality.

I suspect that's the case. What we have here is an attempt at a middle way on healthcare: universal coverage within a private system that bars discrimination based on pre-existing conditions. If that cannot be done constitutionally with a private-public partnership, and cannot be done at all with an entirely private market, then … we logically end up with single payer.

Which would be quite a resolution, wouldn't it?