June 22nd, 2012

Intrade gives the odds for SCOTUS ruling the individual mandate unconstitutional at 77% today. I’m glad I didn”t put any money behind my rash prediction for upholding, though it may still be borne out.

That is, a federal individual mandate. Is there any constitutional bar on the states reintroducing it to patch ACA, assuming the SCOTUS Republican caucus don’t have the nerve to trash the whole law?

My foreigner’s take on the situation is no.

Suppose the Pirate Communist Party takes control of Vermont. Its 95.2% share of the vote has been called suspicious by the WSJ, but it was certified by Diebold’s electronic voting machines, and they can’t be wrong, can they. The new VPCP régime has acted energetically in its first week and

  • nationalised all industrial and commercial enterprises with over $10m turnover, and set up workers’ soviets to run them 
  • abolished intellectual property
  • required all residents to buy a set amount of broccoli and maple syrup, the new “healthy Vermonter breakfast”
  • changed the name of the state to the “Vermont People’s Republic”.

Is any of this unconstitutional? The second conflicts with one of the enumerated powers of the federal Congress, and is dubious. But the others? The broccoli and maple syrup statute has been carefully worded so as not to intrude into the citizens’ fundamental right to privacy – they are compelled to buy the stuff, not eat it. The nationalisation was non-discriminatory and no restrictions have been placed on interstate trade.

Back in the dismal real world, with the prospect of a worse disaster than my Vermont fantasy, the survival of Romneycare in Massachusetts is very strong evidence that there’s no legal bar to a state-level health insurance mandate.

So if the mandate loses federally in SCOTUS, what’s to stop the 15 Democratic-controlled state legislatures  from adopting an individual mandate patch to ACA? And since the law would rapidly become unworkable without it, would there not be strong pressure on Republican state houses to follow suit?

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