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“No, Mr. uninsured cancer patient, I expect you to die.”

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Responding to a House Republican’s forthcoming fake plan to replace the ACA, which he asserts will prevent discrimination against patients with pre-existing conditions without a mandate, Yglesias notes the obvious:

Insuring a sick person, after all, is a lot more expensive than insuring a healthy person. So normally you want to charge sick people more. Discriminate against them, as it were. But if that’s not allowed, then you’ll have to raise prices across the board. And yet those higher prices are going to push people out of the insurance they like, leaving you with an even sicker group of people in your pool. That’s the famous insurance “death spiral” that the Affordable Care Act is supposed to break with the injection of subsidies and penalties.

My strong suspicion is that Rep. Scalise is not in fact some kind of public policy prodigy who’s thought his way out of a dilemma that’s gone unsolved by the governments of all 50 U.S. states and every industrialized country on the planet. But maybe I’m wrong and we’re all about to learn that 100 percent of the thorny political difficulties of Obamacare can just be waved away.

This problem can also be seen in the Republican opinions in NFIB v. Sebelius. Both Roberts’s opinion and the joint dissent argued that the federal government could regulate the health care market, which would seem to include guaranteed issue. But once you’ve conceded this, you’ve conceded everything. Even if one accepts the (highly unconvincing) argument that it’s impermissible to regulate “inactivity” directly under the commerce clause, the necessary and proper clause as it’s been interpreted for nearly 200 years settles the question. The mandate, even if not in itself an exercise of the commerce power, is clearly “necessary and proper” to make what everyone concedes is a valid exercise of federal power work.

The responses on this point were particularly feeble. Roberts’s strategy was to invent a new distinction between “necessary” and “proper”:

Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it. Even if the individual mandate is “necessary” to the Act’s insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.

This is just gibberish. To read this kind of independent prohibition into “proper” as opposed to “necessary” would defeat the whole purpose of the clause. If a provision if necessary for a regulatory scheme to work, the fact that the power would be a new one is completely irrelevant. Moreover, as Ginsburg pointed out at length the unique nature of the health care market belies the assumption that this would create an unlimited new federal power: “[t]he inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets.” The mandate was tailored to a specific problem that doesn’t exist with most markets; to assert that this could be improper even if necessary is both incoherent and misunderstands the purpose of the regulation.

Perhaps understanding that trying to argue that a federal regulation could be “improper” while being “necessary” doesn’t make any sense, the joint dissent tries to argue that the mandate in fact wasn’t necessary:

With the present statute, by contrast, there are many ways other than this unprecedented Individual Mandate by which the regulatory scheme’s goals of reducing insurance premiums and ensuring the profitability of insurers could be achieved. For instance, those who did not purchase insurance could be subjected to a surcharge when they do enter the health insurance system. Or they could be denied a full income tax credit given to those who do purchase the insurance.

First, it’s instructive that not included among the goals of the legislation is “expanded access to health care,” which tells you most of what you need to know. Second, note how comically inadequate the proposed alternatives are; a tax credit or surcharge that would have the deterrent effect necessary to function like a mandate would lock the non-affluent out of the system if they chose not to purchase insurance, which would defeat the purpose of the legislation. And finally, this is just incorrect as an interpretation of McCulloch, which is clear that to full under the necessary and proper power, a provision need not be “necessary” in the sense of “there is no other possible way of achieving the same end” (for the obvious reason that this would render the clause a nullity.) It’s up to Congress to determine what is “necessary and proper” unless the means are obviously unrelated to the proposed end. In this case, the mandate is intimately connected to the proposed end. The fact that the joint dissenters (erroneously) believe that there are alternatives that would function effectively does not render the course that Congress chose unconstitutional.

And as I noted at the time, the terribleness of these arguments was implicitly conceded by the Republican appointees when they held that the mandate couldn’t be severed from the rest of the legislation — if there were plenty of easy fixes and the mandate wasn’t really necessary to the legislation then why couldn’t the mandate be severed from the bill? But this returns us to out first point; national Republicans don’t want any health insurance reform to work. Obama gave up his dumb pandering about the mandate during the primaries because he actually favored guaranteed issue. Conversely, Republicans will invent all kinds of ad hoc reasons why the government can’t enact guaranteed issue because they don’t actually care if the non-wealthy have access to health care.

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