One of the strangest things about the claims raised in the constitutional challenges to the Patient Protection and Affordable Care Act’s individual insurance mandate has always been the fact that it is basically uncontested that Congress could, if it wanted to, take over the national market for health care and provide a wholly government-run health care system.  That was a concession made early on by David Rifkin and Lee Casey, the conservative lawyers who crafted the theory underlying the health care lawsuits, and not seriously contested since.  Which begs the question: if the government can take over the health care system in this country entirely, why can’t it take the far less ambitious step of using a tax penalty to encourage Americans to purchase private insurance?

Perhaps even more interestingly, do conservatives really want to force such an all or nothing solution?  That question is pointedly raised in the fascinating dissenting opinion issued yesterday by Judge Brett Kavanaugh in Seven Sky v. Holder.   Toward the end of his lengthy discussion of the jurisdictional deficiencies of the case brought by conservative plaintiffs against the Act, Judge Kavanaugh cautions against “prematurely or unnecessarily rejecting the Government’s Commerce Clause argument.” While Kavanaugh’s restraint partially stems from his respect for the “momentous act” of overturning a federal law, he is also motivated by his desire to avoid blunting the “leading edge of a shift in how the Federal Government goes about furnishing a social safety net for those who are old, poor, sick, or disabled and need help.”  Kavanaugh goes on to highlight the value of the individual mandate as an alternative to more muscular government actions:

The theory of the individual mandate in this law is that private entities will do better than government in providing certain social insurance and that mandates will work better than traditional regulatory taxes in prompting people to set aside money now to help pay for the assistance they might need later.  Privatized social services combined with mandatory-purchase requirements of the kind employed in the individual mandate provision of the Affordable Care Act might become a blueprint used by the Federal Government over the next generation to partially privatize the social safety net and government assistance programs and move, at least to some degree, away from the tax-and-government-benefit model that is common now.

Judge Kavanaugh’s discussion of the individual mandate provides a striking reminder of the conservative origins of the individual mandate. Recognizing that “each household has an obligation…to avoid placing demands on society by protecting itself,” the Heritage Foundation proposed the individual mandate in 1989 as a way to “force [households] with adequate means to obtain insurance protection.” Since then, a parade of conservative lawmakers has expressed support for individual mandate. George H.W. Bush, Bob Dole, Newt Gingrich, Orrin Hatch, Richard Lugar, and Mitt Romney are just a few of the many Republicans who have supported an individual mandate over the past two decades. This support persisted as late as 2007, when conservative senators such as Lamar Alexander, Norm Coleman, Chuck Grassley, and Trent Lott signed on as co-sponsors to Senator Ron Wyden’s (D-OR) Healthy Americans Act which “require[d] each adult individual to have the opportunity to purchase a Healthy Americans Private Insurance Plan,” and “[set] forth penalties for failure to enroll.”

That’s what makes the claims about the unconstitutionality of the individual mandate being raised both in court and by conservatives in Congress and on the campaign trail so curious.  These claims are assailing an idea raised and celebrated by preeminent conservatives as a way of reducing the footprint of the federal government.

Maybe the conservatives on the Supreme Court will strike down the individual mandate anyway, though that seems much less likely after reading the powerful majority opinion in Seven-Sky, written by Judge Laurence Silberman, forcefully rejecting the challengers’ claims on the merits.  But if the Supreme Court does what conservatives say they want in cases like Seven-Sky, Judge Kavanaugh explains cogently why conservatives may well live to regret it.