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Mandate or not, the right would have found a way to go after Obama's health care law


The Supreme Court will likely hand down its decision on the Affordable Care Act on Thursday, but we already have something like a consensus on what that decision will be: bad. Although there are about a half-dozen different ways the court could rule, very few knowledgeable observers think the law stands much chance of surviving in full. The most likely outcome is probably that the individual mandate gets struck down, while most of the rest of the law stands. Though far better than having the entire law eliminated, this would still be a defeat for Democrats. And so, true to form, progressives are already assembling their circular firing squad.

It's only natural. Any time you suffer a setback that large in politics, you want to go back and figure out who's to blame, and whether things could have turned out differently. For many, that leads to this conclusion: If only everyone had listened to me, we would have won. If only Obama had made a more forceful constitutional argument to move public opinion. If only his administration hadn't waited so long to take the legal argument against the mandate seriously. If only they had talked more about the Founders in their briefs to the Supreme Court. If only they had just called the mandate a tax.

These arguments are completely reasonable—and completely wrong. The reality is, there is nothing that President Obama, his administration, or congressional Democrats could have done to alter the outcome of this drama. There was no legal strategy, no legislative rejiggering, no deft public argument that would have changed a thing.

To refresh your memory, this is what happened over the last few years: In a vain attempt to limit Republican opposition to their reform, Democrats put aside their dream of a single-payer system, and instead constructed a plan that maintained the private insurance system, achieving near-universal coverage through a mechanism devised by conservatives and advocated by them for years. Conservatives then decided that their own idea was in fact the essence of socialist tyranny, and on the very day the law was passed, filed lawsuits challenging it, using a legal theory that experts across the political spectrum initially derided as absurd. But in short order, conservatives everywhere came to agree that a greater affront to the Constitution had never been seen, and Republican-appointed judges were more than happy to declare the law invalid, all the way up to (in all likelihood) the Supreme Court.

Conservatives didn't turn against the mandate because they finally had a chance to think about it and realized that it was actually devised not in the offices of the Heritage Foundation (which it was) but in a séance at Lenin's tomb with the ghosts of Mao and Pol Pot looking on approvingly. They turned against it because it was key to President Obama's signature domestic policy achievement, so getting rid of it would represent a political defeat for him. If there had been no mandate, they would have found some other provision to declare a horrific affront to liberty. The argument they made about that hypothetical provision would have gone through the same process of being legitimated by lockstep Republican support and endless repetition until it came to sound like a perfectly defensible position. It wouldn't have mattered what it was, and it wouldn't have mattered what Democrats said or did in response.

Four of the five Republican-appointed justices on the Supreme Court are movement conservatives, and the idea that any of these four would put aside the movement's desires and look strictly at the Constitution and the Court's own precedents is so ludicrous that none of us should ever have entertained it (I'll admit I was among those who did). As for the fifth—Justice Kennedy—the fate and future of millions of Americans is now in his hands. He'll arrive at whatever decision he does for his own idiosyncratic reasons. If he sides with his ideological compatriots, many will say the inclusion of the mandate gave him the opportunity to strike down the law. But if it hadn't been the mandate, it would have been something else.


Paul Waldman is a Contributing Editor with The American Prospect magazine and the author or co-author of a number of books about media and politics, including The Press Effect: Politicians, Journalists, and the Stories That Shape the Political World. His writing has appeared in The Washington PostThe Los Angeles TimesThe Boston Globe, and many other newspapers and magazines.