Doesn't sound like the individual mandate had a good day in court yesterday. Says Ezra ...
The quick read is that today went very badly for supporters of the individual mandate. As one of the experienced Supreme Court watchers who runs SCOTUSblog tweeted, “Paul Clement” — the attorney arguing against the health-care law — “gave the best argument I’ve ever heard. No real hard questions from the right. Mandate is in trouble.”
... and Toobin is more blunt in his assessment:
"This was a train wreck for the Obama administration .... This law looks like it's going to be struck down. I'm telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong... if I had to bet today I would bet that this court is going to strike down the individual mandate."
So it looks like the only question left is whether the scope of the opinion will be narrowly tailored to nix the individual mandate, or if the majority in the court will strike for bigger gold in limiting the commerce clause.
The Washington Post interviews Randy Barnett of Georgetown Law and captures his take on the issue at hand ...
... the duty to pay taxes is part of your duty to support the government in return for the protections the government gives you. What the government is claiming here is this power — and this ought to disturb people on the left — to make people do business with private companies when Congress thinks it’s convenient.
That's a fair encapsulation of why I've consistently found the individual mandate troubling. The argument that we're all engaged in the health care market, hence we should pay for it by some means, is problematic on logical grounds. First, the only reason it's offered is because of a Hippocratic Oath that doesn't exactly bind any doctor to see any patient on any grounds whatsoever. At least not in any legally codified manner that I'm familiar with. Secondly, the assumption is that the entirety of the uninsured do not manage to cover the health care costs that they end up incurring. I'm sure that the net effect is a loss of dollars, but I've not seen anything that outlines the scope of the problem (ie - what percentage of uninsured contribute to the problem). I'm uninsured since I don't know when (minus some time during 2010). I have incurred zero health care expenses in the past decade. The last time I did, I paid my bill in full. So why do I need to be forced into the insurance market against my will to fix a problem that I don't contribute to?
In sum, the so-called "health care reform" bill signed into law is, in effect, nothing more than a health insurance reform in this regard. And that brings me to the final problem I have with the mandate: why are we sanctifying the insurance market? Is that really the highlight of liberal thought, these days? ... forcing people to deal with the insurance industry? That seems a far cry even from Al Gore's trope of "the people vs the powerful."