On March 23, 2010, the day that President Obama signed the Affordable Care Act into law, fourteen state attorneys general filed suit against the law’s requirement that most Americans purchase health insurance, on the ground that it was unconstitutional. It was hard to find a law professor in the country who took them seriously. “The argument about constitutionality is, if not frivolous, close to it,” Sanford Levinson, a University of Texas law-school professor, told the McClatchy newspapers. Erwin Chemerinsky, the dean of the law school at the University of California at Irvine, told the Times, “There is no case law, post 1937, that would support an individual’s right not to buy health care if the government wants to mandate it.” Orin Kerr, a George Washington University professor who had clerked for Justice Anthony Kennedy, said, “There is a less than one-per-cent chance that the courts will invalidate the individual mandate.” Today, as the Supreme Court prepares to hand down its decision on the law, Kerr puts the chance that it will overturn the mandate—almost certainly on a party-line vote—at closer to “fifty-fifty.” The Republicans have made the individual mandate the element most likely to undo the President’s health-care law. The irony is that the Democrats adopted it in the first place because they thought that it would help them secure conservative support. It had, after all, been at the heart of Republican health-care reforms for two decades.
The mandate made its political début in a 1989 Heritage Foundation brief titled “Assuring Affordable Health Care for All Americans,” as a counterpoint to the single-payer system and the employer mandate, which were favored in Democratic circles. In the brief, Stuart Butler, the foundation’s health-care expert, argued, “Many states now require passengers in automobiles to wear seat-belts for their own protection. Many others require anybody driving a car to have liability insurance. But neither the federal government nor any state requires all households to protect themselves from the potentially catastrophic costs of a serious accident or illness. Under the Heritage plan, there would be such a requirement.” The mandate made its first legislative appearance in 1993, in the Health Equity and Access Reform Today Act—the Republicans’ alternative to President Clinton’s health-reform bill—which was sponsored by John Chafee, of Rhode Island, and co-sponsored by eighteen Republicans, including Bob Dole, who was then the Senate Minority Leader.
After the Clinton bill, which called for an employer mandate, failed, Democrats came to recognize the opportunity that the Chafee bill had presented. In “The System,” David Broder and Haynes Johnson’s history of the health-care wars of the nineties, Bill Clinton concedes that it was the best chance he had of reaching a bipartisan compromise. “It should have been right then, or the day after they presented their bill, where I should have tried to have a direct understanding with Dole,” he said.
Ten years later, Senator Ron Wyden, an Oregon Democrat, began picking his way back through the history—he read “The System” four times—and he, too, came to focus on the Chafee bill. He began building a proposal around the individual mandate, and tested it out on both Democrats and Republicans. “Between 2004 and 2008, I saw over eighty members of the Senate, and there were very few who objected,” Wyden says. In December, 2006, he unveiled the Healthy Americans Act. In May, 2007, Bob Bennett, a Utah Republican, who had been a sponsor of the Chafee bill, joined him. Wyden-Bennett was eventually co-sponsored by eleven Republicans and nine Democrats, receiving more bipartisan support than any universal health-care proposal in the history of the Senate. It even caught the eye of the Republican Presidential aspirants. In a June, 2009, interview on “Meet the Press,” Mitt Romney, who, as governor of Massachusetts, had signed a universal health-care bill with an individual mandate, said that Wyden-Bennett was a plan “that a number of Republicans think is a very good health-care plan—one that we support.”
Wyden’s bill was part of a broader trend of Democrats endorsing the individual mandate in their own proposals. John Edwards and Hillary Clinton both built a mandate into their campaign health-care proposals. In 2008, Senator Ted Kennedy brought John McDonough, a liberal advocate of the Massachusetts plan, to Washington to help with health-care reform. That same year, Max Baucus, the chairman of the Senate Finance Committee, included an individual mandate in the first draft of his health-care bill. The main Democratic holdout was Senator Barack Obama. But by July, 2009, President Obama had changed his mind. “I was opposed to this idea because my general attitude was the reason people don’t have health insurance is not because they don’t want it. It’s because they can’t afford it,” he told CBS News. “I am now in favor of some sort of individual mandate.”
This process led, eventually, to the Patient Protection and Affordable Care Act—better known as Obamacare—which also included an individual mandate. But, as that bill came closer to passing, Republicans began coalescing around the mandate, which polling showed to be one of the legislation’s least popular elements. In December, 2009, in a vote on the bill, every Senate Republican voted to call the individual mandate “unconstitutional.”
This shift—Democrats lining up behind the Republican-crafted mandate, and Republicans declaring it not just inappropriate policy but contrary to the wishes of the Founders—shocked Wyden. “I would characterize the Washington, D.C., relationship with the individual mandate as truly schizophrenic,” he said.
