In a recent post, co-blogger Orin Kerr suggests that polls showing the unpopularity of the individual health insurance mandate prove that slippery slope concerns about upholding the mandate case may be unfounded, because “mandates are just political losers.”
Some mandates are indeed political losers. But as I explain in the forthcoming article that Orin kindly linked to, the federal government’s rationales for the health insurance mandate open the door to almost every other conceivable mandate. In that vast universe of possibilities, there are going to be some political winners, including some that are likely to cause serious harm. There are numerous industries that would love to lobby for laws requiring people to buy their products. And at least some of them will achieve political success if the Court gives Congress a blank check to impose whatever mandates it wants. Even if only a small percentage of these possible mandates are ever enacted, the absolute number of political winners might turn out to be substantial.
Some mandates may go through because their supporters can effectively portray them as public health measures, efforts to stimulate the economy, or otherwise beneficial to the public. Others might succeed because much of the public is simply unaware of thema due to political ignorance. People may well not be aware of a mandate imposed on them, either because they happen to already be in compliance or because it is only selectively enforced. The minority who do get penalized for violating such a mandate will eventually become aware of it, of course. But they may not have enough political clout to get it abolished.
Orin says that mandates are likely to be unpopular because “[n]o one likes to be told what to do.” This is true to some extent. However, many people do like to tell others what to do, especially if they believe that those others are making poor decisions. That’s why many paternalistic policies are political winners.
The health insurance mandate is an unusual case for a variety of reasons. It was part of a major new law that dominated the headlines for many months. Most other mandates are unlikely to attract so much public scrutiny. In addition, precisely because it was part of such a massive bill addressing an important issue, the health insurance mandate quickly became a major focus of partisan conflict. Most legislation is far less controversial, and leads to far less political countermobilization, if any. Finally, the “adverse selection” policy rationale for the mandate is complex and difficult to explain to voters with little knowledge of economics and public policy. For these reasons, and perhaps others, the unpopularity of the health insurance mandate is likely to be a poor predictor of the politics of future mandates.
Lastly, I would emphasize that the unpopularity of the individual mandate was not enough to keep it from getting enacted in the first place. It was not enough to keep President Obama from supporting it, despite the fact that he had earlier denounced the idea as comparable to trying “to solve homelessness by mandating everybody to buy a house.” And if the Court upholds the mandate, it’s far from clear that it will ever be repealed. Sometimes, even an unpopular mandate can be a political winner.