The American Debate: GOP changed tune on health-care mandate

Perhaps you've long believed that extremist Islamic terrorism poses the greatest danger to America. Well, the Republicans wish to disabuse you of that notion.

House GOP leader John Boehner declared the other day that health-care reform is actually "the greatest threat to freedom that I've seen in the 19 years I've been in Washington" - an enlightening assertion, since I'd foolishly figured that the piloting of a plane full of innocents into the Pentagon wall had constituted the greatest assault on freedom in Washington. Call me crazy, but I'd assumed that al-Qaeda scored higher on the fright meter than the prospect of Americans getting the same health protections that are common everywhere else in the democratized world.

Worse yet, real health reform hinges on a proposal that Republicans call "a stunning assault on liberty." They're incensed about the so-called "individual mandate," the idea that virtually all Americans should be required to carry health insurance. Republicans see this mandate as an unconstitutional curb on personal freedom, arguing in essence that Americans have the inalienable right to be uninsured; in the words of Sen. Charles Grassley (R., Iowa), "Individuals should maintain their freedom to choose health-care coverage, or not."

Republicans often have been quite successful in political disputes when they invoke words like freedom and liberty, which pack an emotional wallop. But there is also something called the social compact, the notion that the American community is strengthened if everybody pitches in. That's where the health-care mandate comes in.

It's simple, really: An effective, affordable insurance program spreads the risks. If only sick and high-risk people sign up for health insurance, coverage will be too costly for many purchasers. But if virtually all healthy people are compelled to sign up, premiums will be cheaper across the board and there will be more money in the till for the sick folks who truly need costly care.

What's ironic is that many Republicans in the past have agreed with this inescapable logic. They were for the mandate before they were against it.

Earlier this year, Grassley told Fox News that there wasn't "anything wrong" with a mandate. Just as motorists are required to carry auto insurance, he said, "the principle then ought to lie the same way for health insurance." At least seven other Republican senators have spoken favorably of such a requirement (South Dakota's John Thune: "There are good arguments on behalf of getting everybody into the pool"), and 2012 presidential candidate Mitt Romney made it a centerpiece of his health insurance overhaul in Massachusetts.

But Republicans, mindful of the need to placate the Tea Partyers and right-wingers who equate health reform with various forms of totalitarianism, can ill afford to underscore their previous statements. Nor can they afford to agree with their former Senate leader, Dr. Bill Frist, who has endorsed the mandate concept, arguing recently on the Fox Business Network that it's "about the only way" to achieve reform, that Americans "should be responsible to paying for it" - and face federal penalties if they don't.

The Democrats continue to tweak the proposed penalties, much to the chagrin of Boehner. Last weekend, shortly before the House passed a health-reform plan (thus becoming the first chamber to do so in the 60 years since Harry S. Truman put it on the agenda), Boehner delivered this statement on the floor:

"We have an individual mandate in this bill in front of us, that says every American is going to buy health insurance - whether you want to or not. And if you don't want it, you're going to pay a tax. . . . Now, this is the most unconstitutional thing I've ever seen in my life!"

Translation: Even if President Obama ultimately signs a health-reform law, the fight will not be over. The opposition will hire lawyers and ask the courts to throw it out.

Whether they can succeed is highly debatable. It's true that the Congressional Research Service has looked at the constitutionality of a mandate and come up empty, saying only that "it is a novel issue whether Congress may . . . require an individual to purchase a good or service," and calling it a "challenging question." But Supreme Court rulings since the 1930s put the reformers on fairly solid ground.

When Boehner declared the mandate to be the most unconstitutional thing in his whole life, he was presumably referring to the Constitution's commerce clause, which says that Congress has the power "to regulate commerce . . . among the several states" - in other words, economic issues - but certainly says nothing about requiring Americans to buy health insurance or any other product.

The problem for Republicans, however, is that the high court has long given the commerce clause an expansive reading, and allowed the feds to regulate all kinds of behavior.

To cite the most famous example, the landmark '64 Civil Rights Act invoked the commerce clause in order to bar whites from discriminating against blacks, even though the core issue was not economic. The court was fine with that. The court has overturned only two commerce-clause cases since 1935, as even mandate opponents grudgingly acknowledge, which is why Obama spokesman Robert Gibbs was correct on Oct. 28 when he said, "I don't believe there's a lot of case law that would demonstrate the veracity" of the GOP's position.

It would be tough for the Republicans' lawyers to argue in court that an insurance mandate falls outside the commerce clause - given the reality that health-care costs have a major impact on economic commerce. In fact, the Republicans have repeatedly made that link, by complaining about how the Democrats are seeking to restructure "one sixth of the economy."

But for the GOP, this is all fertile rhetorical territory. Even if health reform ultimately fails, they can stoke conservative base turnout for the 2010 congressional races by recounting the Democrats' "unconstitutional" attempt to require health insurance and thus infringe on freedom and liberty. The mandate is hardly a threat akin to al-Qaeda, but there's ample red meat in the argument that Americans resent being told what to do.