Facts Are First Casualty of Health-Care Fight

April 9 (Bloomberg) -- In the Supreme Court’s historic argument over President Barack Obama’s health-care law, the Republicans claimed the high ground on principle, Democrats on the politics.

Both positions are tenuous.

The Republican/conservative case against the constitutionality of the individual mandate requiring health insurance belies the fact that it was long championed by those very elements. It was only when the mandate became part of Obamacare that it morphed into an unconstitutional federal power grab.

As for the politics, rarely has a White House so failed to rally public support behind its signature achievement. Public opposition to the health bill is unchanged from several years ago when it was being enacted. One prominent supporter says, privately, that the White House committed political malpractice by not explaining to the public that popular provisions in the bill were linked to the mandate. No one knows this, he says.

For two decades, until the Obama plan took shape, the individual mandate was a central tenet of Republican health-care policy. It was the alternative to the government-run single-payer system proposed by the late Senator Ted Kennedy and to the employer mandate proposed by President Bill Clinton in 1993.

Broccoli Mandate

Take the contention -- now deployed by opponents of the law -- that if the federal government is allowed to require Americans to have health insurance, it could also impose other mandates such as the obligation to buy broccoli. That was refuted almost a quarter-century ago by the conservative Heritage Foundation.

“If a young man wrecks his Porsche,” the foundation’s policy director, Stuart Butler, wrote in 1989, “we may commiserate but society feels no obligation to repair his car. But health care is different. If a man is struck down by a heart attack in the street, Americans will care for him whether or not he has insurance,” even though “that means more prudent citizens end up paying the tab.”

The White House and the law’s supporters are armed with similar ammunition from Republicans, starting with President George H.W. Bush. During the debate over so-called Hillarycare in 1993-94, Bob Dole, the Senate Republican leader, and other party colleagues backed an individual mandate. Subsequently, so did another Senate Republican majority leader, Bill Frist, a physician, as well as ex-House Speaker Newt Gingrich.

As governor of Massachusetts, Mitt Romney enacted a mandate in his state. “Some of my libertarian friends balk at what looks like an individual mandate,” Romney declared six years ago. “But remember, someone has to pay for the health care that must, by law, be provided. Either the individual pays or the taxpayers pay. A free ride on government is not libertarian.”

Now, as his party’s putative presidential nominee, Romney says the mandate is only permissible at a state level; at one time, however, he urged it as a federal measure, with no mention of constitutionality.

Ironically, Obama was opposed to an individual mandate during the 2008 campaign, preferring a government-run plan. He accepted the mandate as a compromise in 2009. Early that year, Republican senators such as Lindsey Graham and Lamar Alexander co-sponsored legislation with an individual health-care mandate; conservative senators such as Charles Grassley and John Thune expressed ambivalence.

The lawmakers and Heritage say they’ve changed their view on the issue. That’s not unusual, especially in a complicated policy area such as health care. Inexplicable, though, is the claim that something they once supported is not only bad policy but violates the Constitution. That occurred after it was embraced by Obama.

Fall Campaign

No matter how the court rules, Team Obama will remind voters of the Republican inconsistency -- they will tag it hypocrisy -- in the fall campaign.

Their task would be easier if they had mustered public support.

During the congressional deliberations, the White House got too caught up in the inside game. To the public, the debate seemed about things like the Cornhusker carve-out -- a deal, subsequently dropped, to get the support of Democratic Senator Ben Nelson of Nebraska -- or alleged death panels, the absurd charge by conservatives that the bill would make it easier for the government to pull the plug on grandma.

Getting 30 million Americans off the uninsured rolls or stopping the insurance industry’s more egregious discriminatory practices were lost in the noise.

That was supposed to change after the bill was enacted. It didn’t for two basic reasons: The White House was under pressure to focus on the economy and proved inept at multi-messaging, and officials never settled on a consistent and coherent rationale for the law.

The public confusion persists. An example: Polls show that only about one-third of voters support the individual mandate but more than two-thirds back the provision that prohibits insurance companies from discriminating against people with pre-existing conditions. There is almost no understanding that these two provisions are inextricably linked; if the court throws out the mandate, the pre-existing conditions proviso goes too.

Both the president and the Supreme Court have a lot at stake. If Obama’s most important first-term achievement is thrown out, it will be very difficult for him to push any substantial legislation in his second; that affects his subsequent standing.

As for the high court, given the record, it’s hard to believe that if this same bill had been enacted under, say, a President Romney, it even would be under review. Two conservative Republican appellate court judges have upheld the law, and Charles Fried, a law professor at Harvard who was Ronald Reagan’s solicitor general, says the constitutional challenge is a “canard” concocted by the political right. A Bloomberg poll last month found that 75 percent of Americans thought the court’s decision would be based more on politics than constitutional merit. A 5-to-4 decision, along partisan lines, likely would reinforce that perception.

The arguments didn’t help either side. In a Pew Research survey last week, people whose view was changed by the case said -- by a three-to-one margin -- that they had a lower opinion of both the law and the Supreme Court after the oral arguments.

(Albert R. Hunt is the executive editor for Washington at Bloomberg News. The opinions expressed are his own.)

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To contact the writer of this column: Albert Hunt in Washington at

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