The Mandate is Falling, the Mandate is Falling!

In yesterday's New York Times, an MIT Economist named Jonathan Gruber, who the Times has apparently nicknamed "Mr. Mandate," lamented the direction of the oral arguments re the Mandate provision in the Affordable Care Act. "'As soon as I started reading the dispatches my stomach started churning,' Mr. Gruber said of the arguments on Tuesday, while taking a break from quizzing his son for a biology test. 'Losing the mandate means continuing with our unfair individual insurance markets in a world where employer-based insurance is rapidly disappearing.'"

Really, Mr. Gruber? Let's assume for a moment that you're right, and that without an individual mandate, we are fated to a future where increasing numbers of Americans are left without access to employer-based insurance. Fine. But even if this is true, why is the sky falling if the individual mandate is beyond the power of the federal government to require? As Mitt Romney is no doubt tired of being reminded, Massachusetts has had an individual mandate in place for several years. Thus if Mr. Mandate is right and mandates are the only way out of this mess, then those pesky constitutional limits on congressional action need not mean our goose is cooked. Moreover, if the sky really does start to fall for lack of a mandate, while the sky is meanwhile staying put in the Bay State, then perhaps might other rational state legislatures adopt a mandate of their own? Hmm?

The subtext running through all this, of course, is that the states are too stupid or backwards or incompetent to accomplish this type of thing on their own. This is a horrifying development in our political life. The state governments are, by definition and design, closer to their constituents than is the federal behemoth. They can be quicker to act and in most cases will be more responsive.

If the SC knocks out the Mandate on the basis of its having exceeded Congress's Commerce Clause authority, that will effect Romneycare's mandate not one iota. Nor should it. The real question here is not, "can government do this" as it is framed almost everywhere, but "can the Federal government do this?" This distinction is critical, if for no other reason than it knocks the wind out of those that would focus on policy arguments rather than constitutional requirements (I'm looking at you Justices Kagan, Breyer, Ginsberg, and Sotomayor). Saying "you may not do this" has much more finality than does "you are not the proper party to do this."

What we are left with when we assume that states are helpless/hopeless without the feds doing all the public policy heavy lifting for them is world where the argument "but modern society requires this sort of regulation" gets more traction at the Supreme Court than the theoretically more appropriate "but the Constitution expressly forbids and/or does not permit Congress to do this" argument. This is not a good result for friends of Freedom and self-government. But it is, sadly, increasingly the world in which we live.

Of course, we do not believe the Mandate is the only way to fix healthcare, and indeed, think it ill-conceived both in practice and in principle. The point is only that this debate has highlighted the sad slide of our constitutional jurisprudence from robust constitutional analysis to super-legislature-policy-making. What the modern Court does--at least what the four liberal justices appear prepared to do--is not determine statutes' constitutionality, but rather their wisdom from a policy perspective. Good thing, then, that they have a wise latina among them.