Mandates and Slippery Slopes
You will by now be aware that the Supreme Court today granted cert to hear arguments on Obamacare – two hours of arguments on the individual mandate, 90 minutes on severability, and one hour each on the Medicaid expansion and Anti-Injunction Act issues. But when it comes to the individual mandate, a New York Times article this morning talked about its wide-ranging implications on the limits (or lack thereof) of federal power: “If the federal government can require people to purchase health insurance, what else can it force them to do? More to the point, what can’t the government compel citizens to do? Those questions have been the toughest ones for the Obama administration’s lawyers to answer in court appearances around the country over the past six months. And they are likely to emerge again” at the Supreme Court.
Recent months have given just some examples of the requirements Congress, if granted the authority to impose mandates on all Americans due to their very existence:
The CLASS Mandate: The former Obama Administration budget director first referenced the idea of mandatory participation in CLASS over the summer; other liberal bloggers have agreed. The Justice Department likewise conceded in a Pennsylvania courtroom that mandatory long-term care insurance would be constitutional. And seeing as how HHS admitted the program could not be made solvent without a mandate, who does not believe an Obama Administration, emboldened by a Supreme Court ruling upholding the health insurance mandate, would not attempt to require all Americans to participate in this program?
The Home Mandate: During the 2008 campaign, candidate Obama derided the idea of an individual mandate to purchase health insurance: “If a mandate was the solution, we could try that to solve homelessness by mandating everyone buy a house.” Of course, he later changed positions on the health insurance mandate – and if the housing market remains stagnant in the future, he could change positions to endorse home-buying solutions as well.
The Broccoli Mandate: In an exchange with Sen. Coburn during her confirmation hearings, now-Justice Elena Kagan pointedly – and repeatedly – declined to say that passing a law requiring individuals to eat three fruits and three vegetables a day would be unconstitutional. Such a mandate could be imposed on the grounds that it would slow the growth of health costs, thereby saving the federal government money.
Given last week’s controversy over the “Christmas tree tax,” some observed that if the government wanted to promote the Christmas tree industry, it need not impose a tax on conifers to fund a Christmas Tree Promotion Board – it could just force everyone to buy Christmas trees instead.
It is these types of questions, integral to the relationship between individuals and the federal government, which surround the Obamacare case the Supreme Court will consider next year.