Mandate Strategy and the Democrats

The Democrats are assuming, of course, that at least the mandate part of ObamaCare will be struck down by the Court.

Consider this influential article in THE NEW YORKER. What mileage do you think the Democrats can get from campaigning on Republican flip-flopping on the desirability and the constitutionality of the insurance mandate?

What is notable about the conservative response to the individual mandate is not only the speed with which a legal argument that was considered fringe in 2010 had become mainstream by 2012; it’s the implication that the Republicans spent two decades pushing legislation that was in clear violation of the nation’s founding document. Political parties do go through occasional, painful cleansings, in which they emerge with different leaders who hold different positions. This was true of Democrats in the nineteen-nineties, when Bill Clinton passed free trade, deficit reduction, and welfare reform, despite the furious objections of liberals. But in this case the mandate’s supporters simply became its opponents.

In February, 2012, Stuart Butler, the author of the Heritage Foundation brief that first proposed the mandate, wrote an op-ed for USA Today in which he recanted that support. “I’ve altered my views on many things,” he wrote. “The individual mandate in health care is one of them.” Senator Orrin Hatch, who had been a co-sponsor of the Chafee bill, emerged as one of the mandate’s most implacable opponents in 2010, writing in The Hill that to come to “any other conclusion” than that the mandate is unconstitutional “requires treating the Constitution as the servant, rather than the master, of Congress.” Mitt Romney, who had both passed an individual mandate as governor and supported Wyden-Bennett, now calls Obama’s law an “unconstitutional power grab from the states,” and has promised, if elected, to begin repealing the law “on Day One.”

If I were the president, I would take the partisan judicial activism masquerading as constitutional principle route, no matter what the Court decides. He needs to get much better, of course, than his first sort of passive-agressive move on this front.