Legal Commentary

Was the Individual Mandate a ?Republican Idea??

By Jonathan H. Adler

Many commentators have noted that the individual mandate is an idea that some Republican politicians and right-of-center thinkers used to support.  Over the weekend the Associated Press reported that many on the right once championed an individual mandate as part of a broader health care overhaul.  Not only does the Massachusetts health care reform championed by Mitt Romney include an individual mandate, but back in the 1990s , the Heritage Foundation and many Republican office-holders called for an individual mandate as part of a GOP alternative to the Clinton Administration?s proposed health care reforms.  In 1993, for example, Heritage?s Stuart Butler testified before Congress in support of a new, ?more rational? social contract under which government would provide greater assistance to those lacking health care in return for greater individual responsibility. Explained Butler:

This translates into a requirement on individuals to enroll themselves and their dependents in at least a basic health plan ? one that at the minimum should protect the rest of society from large and unexpected medical costs incurred by the family. And as any social contract, there would also be an obligation on society. To the extent that the family cannot reasonably afford reasonable basic coverage, the rest of society, via government, should take responsibility for financing that minimum coverage.

It?s certainly true that many conservatives and Republicans championed an individual mandate as part of a broader package of reforms (such as ending preferential tax treatment of employer-provided insurance).  But others on the Right have always been opposed.  So, for instance, when some Congressional Republicans  introduced health reform legislation based upon the Heritage Foundation?s proposal, the Cato Institute published this paper by Tom Miller (now a health care analyst at the American Enterprise Institute) attacking the idea.  Working in D.C. at the time (as one of Tom Miller?s colleagues), I recall that many conservatives and libertarians believed those who had embraced the Heritage approach were engaging in preemptive compromise, proposing bad ideas in an effort to forestall worse ones. It was only after conservatives revolted that Republicans in Congress sought to defeat health care reform outright.  The Cato Institute, among other groups, has also been extremely critical of RomneyCare (see, e.g., here, here, and here).

Even so, why were so many on the Right willing to embrace an idea that conservatives attack as unconstitutional today?  How can the Heritage Foundation?s legal scholars attack an idea once championed by its health care analysts?  One possibility is that the Heritage Foundation is simply more conservative, or more free market, than it used to be.  Another is that the legal environment has changed dramatically.  In 1994 it had been over 50 years since the Supreme Court had invaildated a federal law for exceeding the scope of the Commerce Clause.  The Supreme Court?s decision in United States v. Lopez , striking down the Gun-Free School Zones Act, was not until 1995 ? after the Clinton health care plan had been defeated and after the Republicans had retaken Congress, effectively ending the debate over health care reform.  Prior to Lopez, it was simply assumed there were no meaningful limits on the federal government?s regulatory powers.  After Lopez (and United States v. Morrison in 2000), that all changed.  While the argument that the individual mandate exceeds the scope of federal power as interpreted by the courts is still difficult to make, it is no longer implausible as it was in 1994 (particularly for those of us who believe Gonzales v. Raich was wrongly decided).

Of course it?s also fair to argue that many Republican office-holders and partisans are simply opportunistic, opposing ideas today they supported before merely to oppose the President.  In many cases, I am sure this is true.  Just witness Republican efforts to transform themselves into champions of Medicare, opposing any and all spending cuts.  But just because this may be true of partisans and politicians, does not mean its true of those in the broader conservative and libertarian movements. Many conservative and libertarian voices were no less critical of the individual mandate when proposed by the Heritage Foundation or Mitt Romney than they are today.

Full post as published by The Volokh Conspiracy on March 29, 2010 (boomark / email).