To understand how we got to the point where the Supreme Court could potentially strike down the entire Affordable Care Act because of the individual mandate, it is important to identify the string of stupid mistakes Democrats made that got us to this point. By my current count, Democrats had at least eight big chances to avoid this possible that they completely messed up.
1) Lack of severability clause in the law – This was simply an inexcusable mistake of historic proportions. For whatever reason, Senate Democrats forget to include a standard severability clause in their drafting of the ACA, which would allow the entire law to stand even if one provision was deemed unconstitutional. Even if there wasn’t a serious debate about the law, they still should have included it as standard practice. Not including one was just malpractice, given how Republicans, even before the bills passage, said they would challenge the mandate. If one had been included, we would only be talking about the Court possibly striking down a single provision instead of the 2,700 page law.
2) Ignoring Republican promises to challenge the mandate – Democrats knew this challenge would be coming. Republicans repeatedly said they would make it if the law was signed; but arrogantly, Democrats believed there was zero chance it would go anywhere. As result, they didn’t even try to take precautions. If Democrats had merely taken the GOP threat seriously and decided it is better to be safe than sorry, they could have modified the mandate to address the GOP’s inactivity argument. Adopting something like Paul Starr’s five year opt out could have done that.
3) Ignoring public hatred of the mandate – The public hates the individual mandate and hated it during the drafting of the law. Democrats could have listened to the American people and replaced the mandate with something less offensive that still encouraging enrollment, like back premium penalties. Almost every individual mandate alternative out there is less constitutionally questionable. I also suspect the country’s hatred for the mandate could make the conservative justices feel emboldened to use this case to make a statement about federal power.
4) Dropping the Public Option – If Democrats had kept the public option in the bill, they could have argued the government is not compelling you to enter commerce with the mandate, it is only compelling you to give money to the government via public option. This could have been a stronger legal position.
In addition, if Democrats had taken Republican threats of a legal challenge to the mandate seriously, they could have sightly altered the law using a public option to make it clearly constitutional. They could have made it so that you were technically paying a tax and getting the public option, but would get a deduction if you opted for private insurance. Somewhat like a really stripped down “Medicare for the uninsured” with the ability to opt for Medicare Advantage.
5) Congress refusing to call it a tax – Congress should have called the individual mandate penalty a tax. This would have strengthened the argument that it is constitutional under Congress’ taxing power. Instead, Democrats played politics by pretending they weren’t creating a new tax.
6) Obama team refusing call it a straight tax – The Obama team should have argued the entire time that the mandate was a tax. This could have potentially pushed the Supreme Court decision off until 2016. At that point, the implementation of the law would be so deeply rooted the Court would find it difficult to throw out the whole law, and Congress would find it difficult to not fix any changes that the Court made. Most importantly, it would have made the government’s legal arguments under Congress’ taxing powers more straightforward. Instead, the government tried to have it both ways. It was stuck arguing on one day that the mandate penalty was not a tax, yet arguing it should be looked at as a tax the next day.
7) Obama administration’s bizarre severability argument – The Obama administration should have made the straightforward argument that the individual mandate is completely severable from the rest of the law. Their position should have been that the mandate makes the law work better and more efficiently but is not technically essential to achieve Congress’ goals, thanks to many other provisions all working toward that end. The government could have then said if the Court found just the mandate unconstitutional, its duty was to practice restraint and only strike down the mandate. That is a clean easy to state position.
Instead, the government argued that the mandate was essential and not completely severable from the rest of the law. It claimed eliminating the mandate would require removing a few other sections, such as the guaranteed issue provisions and the community rating provisions. This creates a complex questions about just how deeply entwined the mandate is and how far the Court would need to cut to remove it. Declaring the mandate partly essential left it up to Scalia’s question “Can you take out the heart of the act and leave everything else in place?” By not arguing the mandate was completely severable, the government clearly strengthened the arguement for those who say the whole law most go if the mandate is removed.
8) Failed to articulate a clear limiting principle – The government could have made the straightforward argument that mandates would impact commerce so are allowed under the Commerce Clause. Instead, the government tried to argue there is some limiting principle that makes this insurance mandate acceptable under the Commerce Clause. but would make almost no other mandates acceptable. This would have been fine if the government had actually come up with with a clear and easy way to explain limiting principle, but it didn’t. When asked to simply explain what the limiting principle should be during oral arguments, Solicitor General Donald Verrilli Jr. failed to articulate an answer.
In the end, the decision about the constitutionality of the individual mandate and the entire Affordable Care Act will come down to the nine members of the Supreme Court. It is ultimately their call, and they will be fully responsible for what they decide. That said, the Democrats had many chances to take steps to prevent the health care law from ever getting to the point where there is even the possibility the Supreme Court could throw it out. The issue only got to this point because Democrats, on multiple occasions, horribly mishandled their job and totally failed to prepare for what was an entirely foreseeable eventuality. There was never a plan B or attempts to preemptively deal with a possible legal challenge.