Some brilliant argument against mandate

Ramesh Ponnuru:

A lot of people have lauded Paul Clement’s performance before the Court yesterday, and deservedly so. But it’s also worth noting that Michael Carvin did a fine job for the NFIB. Some of what I considered the highlights: 

Carvin distinguishes Wickard v. Filburn. “Oh, but let’s be careful about what they were regulating in Wickard, Justice Ginsburg. What they were regulating was the supply of wheat. It didn’t in any way imply that they could require every American to go out and buy wheat.” 

Carvin destroys the “necessary and proper” argument for the mandate. Justice Ginsburg suggests that Obamacare’s insurance regulation “can’t possibly work” without the mandate, and Carvin replies, “It depends what you mean by ‘work.’ It’ll work just fine in ensuring that no sick people are discriminated against.” The mandate isn’t necessary to enforce that regulation or to keep it from being circumvented. It’s necessary only to ameliorate a side-effect of the regulation. “We, Congress, have driven up the health insurance premiums, and since we’ve created that problem, this somehow gives us authority that we wouldn’t otherwise have. That can’t possibly be right.”

... Carvin exposes the cost-shifting argument for the mandate. Much of the legal argument for the mandate turns on the ability of people with the freedom not to buy insurance to drive premiums up for everyone else by getting uncompensated care. Carvin points out to Justice Kennedy that the true rationale for Obamacare’s mandate is different. It’s not about keeping young, healthy people from shifting costs to others. In that case, you might require them to buy catastrophic coverage. It’s about shifting costs to those people. That’s why the mandate actually prohibits the purchase of catastrophic coverage....

The Wickard case is from the 1940s .  It held that a wheat farmer could not grow wheat for his own consumption.  I think it was wrong to begin with, but what Carvin points out is that the case does not support a requirement to buy health insurance.  I think his argument on cost shifting actually goes to the heart of what is wrong with the mandate.