Even State Mandates Have to Follow the Constitution

To me the individual mandate is one small part of the health care reform package. Is it necessary? Not entirely, or at least not the way it's written currently. With that said, I still feel the mandate is Constitutional and will be upheld by the Supreme Court. You can read here and here for the various ways around the current mandate that I've written about.

All this goes without saying the individual mandate was a Republican proposal dating back to 1993 when they feared HillaryCare would put private insurance out of business.  So from 1993-March 2009 Republicans embraced what they considered the only viable Constitutional way to keep private insurance companies from vanishing.  All it took was for a Democratic Congress and a black president to legislate their idea for them to turn against it.  And against it is a vast understatement.

The question then becomes how do partially sane Republicans square their recent past with their new found conspiracy theory against the mandate?  Avik Roy of National Review Online demonstrates.

It is true, however, that when Mitt Romney installed the individual mandate in Massachusetts, he did so with the backing of the Heritage Foundation and others. Benen alleges that their change of heart is “about cheap politics.” One can never exclude cheapness from politics, but pro-mandate conservatives had plenty of legitimate reasons for changing their minds. One, addressed above, is the Constitutional difference between state-level mandates and federal ones. From a policy point of view, however, the more important factor was the experience of seeing the mandate in action in Massachusetts.

Except for the fact that none of that is true because the Constitution applies to the states just as it applies to the federal government. This, again, is another instance where Republicans are picking and choosing what parts of the Constitution applies to them.  States are no less-- or no more-- bound by the Constitution than the feds.  A state insurance mandate still has to pass the Constitutionality question.  Heck a city insurance mandate would have to pass the Constitutionality question just the same.

Let's put this into language a Republican might understand.  What if Massachusetts mandated you could no longer own firearms?  Obviously Republicans would call it unconstitutional and I would agree with them.  It's a state mandate yet it clearly violates the Constitution.  Or what if Texas mandated that consenting adults couldn't engage in certain forms of sexual activity.  Yep, that mandate too has to abide by the Constitution which is why the Supreme Court struck down Texas sex laws in 2003.

There is no "Constitutional difference between state-level mandates and federal ones."  States don't get an exemption from the Constitution to test out new laws. They have to follow the same basic guidelines setup in the Constitution.  That is why the individual mandate put in place by Republican Mitt Romney and done so with the backing of multitudes of Republicans is such a thorn in their side.  The mandate is and was their idea and it has never been ruled unconstitutional in Massachusetts. But now it just might be the only nagging point they can publicly make against President Obama's health care reform so they'll pretend that it wasn't their plan, or that if it was, it was done so because states have different Constitutional levels.  No they don't.  There's one level, we all play on it and no one is above it.