Assume, for the moment, that the Supreme Court rules that the mandate does not exceed Congress’ powers under the commerce and necessary and proper clauses. (This assumption was probably a safe one for most progressives until Tuesday morning.) The ruling sparks howls of outrage and Republicans win comfortable majorities in Congress this November and Mitt Romney takes the White House.

Congress subsequently determines that Americans can no longer feel sufficiently secure in their homes. Law enforcement, while adequate in some parts of the country, is seriously deficient in others; the rich can hire private security to protect their life, liberty, and property, but no such luck for everyone else. This lack of human security is adversely affecting the national economy; people are losing wages due to injury and death that might be prevented by deterring violent crime. Accordingly, Congress decides, pursuant to its power under the commerce and necessary and proper clauses, to pass a law requiring all Americans over the age of 18 to purchase a firearm. Not just any firearm—because Congress has decided there might be a need to shoot at an intruder from a distance and avoid disturbing the neighbors, the firearm must be equipped with a scope and a suppressor (“silencer”), even though most Americans will never need to shoot anyone at a distance or without waking up the neighbors. And, to ensure that there will not be any shortage of bullets, all firearms complying with the mandate must fire a standard cartridge, so many existing firearms will have to either be retrofitted or replaced to comply. The poor will receive a subsidy sufficient to purchase a firearm meeting these standards. Individuals not presenting proof of ownership of a firearm annually, as part of their tax return, will receive a non-tax penalty for non-compliance, which will be garnished from IRS refunds but otherwise not collected. This law is passed by both chambers of Congress and signed into law by President Romney.

Your challenge, should you choose to accept it: find some way to distinguish the Obamacare case, Florida v. Health and Human Services, from this hypothetical.

As everyone knows, it’s Obamacare Week at the Supreme Court (perhaps the less interesting version of Teen Week on Jeopardy!), and today was the main-event showdown over the constitutionality of the mandate. All observers agree it wasn’t the Solicitor General’s finest hour, but Supreme Court cases aren’t really decided by the quality of the oral argument in most cases, and the SG is playing with house money anyway—across the history of the Supreme Court, the solicitor general usually wins (around 70–75% of the time).

Leaving aside the tea leaves, and the wishful thinking that typified people on both sides of the debate going in, the question that strikes me is why the law’s defenders have become so hung up on the mandate question itself. Barack Obama himself campaigned against it in the primaries back in 2008, and even today most people acknowledge that the only real harm from a lack of a mandate would accrue to the insurance companies who’d be stuck taking all comers without getting a mandatory buy-in from the young and healthy, who last I checked were hardly at the top of most liberals’ Christmas card lists. Even there the harm can’t be that great; Obamacare expands Medicaid eligibility substantially, and most of the young and healthy will be staying on parents’ insurance policies well into their twenties (except for, ironically enough, the military’s TRICARE plan). Abolishing the individual mandate wouldn’t get rid of the employer mandate (indeed, neither side is contesting the constitutionality of that). If adverse selection does drive insurers out of business—a big if—doesn’t that just put us one step closer to the single-payer system that liberals (and even some libertarian-leaning conservatives like James Joyner) support?

It seems to me that if one’s goal is to reduce the escalating costs of health care (or at least reduce the rate of escalation of those costs), it would be rather counterproductive to increase people’s consumption of health care resources. Yet a number of policies, all implemented or encouraged by the present administration, have done so:

• Obamacare proper required all health care plans to get rid of co-pays for many routine office visits to physicians.
• The DEA‘s War on Meth and People with Colds has pushed two states (Mississippi and Oregon) to the point of requiring a prescription for dispensing any effective cold medicine containing pseudoephedrine, and many other states require it to be controlled behind the counter. Already one idiotic prosecutor has gone after someone trying to evade this silly requirement. Ten years from now, if not sooner, I have good money that says the feds will be going after “meth doctors” who are “overprescribing” pseudoephedrine, à la Oxycontin, and pharmacies who are “oversupplying” it.
• Now, we have the administration requiring health care plans to provide women with birth control without a co-pay. Never mind the evidence that women on the pill have worse taste in men.

I get that these things are politically popular and/or support politicians’ desires to Look Tough On Drugs. I also get that women who cannot afford birth control probably should have that expense covered in full. What I don’t get is why these mandated “no-co-pay” coverages aren’t means-tested in some way to at least try to keep costs under control for the large share of the population who can reasonably afford some out-of-pocket health care expenses—indeed, our entire federal income tax system is structured, in part, around the idea that 7.5% of your AGI is expected to be dedicated to health care and thus cannot be deducted, even if you itemize deductions.

Finally, I conclude with the following two necessary caveats: (a) I have no particular truck with the moral positions of the Catholic Church or other churches with similar positions on birth control, and think if they want to employ people they can either provide health care coverage or pay the fines/taxes for not providing it, and (b) employer-based health care in general is a stupid way to accomplish universal coverage, and given that we seem to have decided that universal health care coverage is desirable it follows that some form of single-payer or government-subsidized system is preferable, particularly if you’re going to have a nominally private system that is totally loaded down with mandated coverages (aka unfunded mandates), must-issue rules, and uniform premiums. Hence I think some sort of subsistence level universal government-paid system, with rationing-by-queueing and ward-type inpatient service, is inevitable (if not desirable), and as long as individuals are free to pay (or buy supplemental insurance) to upgrade their place in line and to the Beyoncé Birthing Suite, I can’t say I have any particular problem with it.

From TigerHawk’s reaction to the furor surrounding the Stupak anti-abortion amendment to the House version of the health care bill:

The real problem, of course, is that this fight reveals the ugly truth of statist health care: That personal medical decisions are no longer a matter of private bargaining, but of political argument. The fight over abortion funding is not an exception, it is a harbinger. Medical decisions are becoming more ethically complex and culturally contentious, not less. Do you really want the legislature deciding who may pull what plug, whether men can get drugs for longer-lasting erections, or whether functional neurosurgery to treat depression, addiction, or obesity is a good idea? Speaking only for myself, I would rather that my employer dangle these benefits in its campaign to retain me than have the matter settled by some clown Congressman from a safe seat in a distant state.

Somehow I don’t think TigerHawk is the only one with similar sentiments.

This evening’s exercise in compare and contrast.

The textbook public policy process (seriously, whip open any book with "Public Policy" in the title, or any college intro to American government text that covers policy, and you'll see this or a paraphrase):

1. Define the problem.
2. Propose alternative solutions.
3. Promulgate some specific solution as law.
4. Implement the solution.
5. Figure out if it works. Rinse and repeat if necessary.

The health care reform process thus far:

1. The problem is defined, sort of. “Health care is broken and/or really expensive.” I mean, seriously, nobody has even defined the problem in any more specific way that remotely relates to the bills being proposed. Textbook stage 1 problem statements would resemble “Americans have to fill out ridiculous amounts of paperwork every time they get within 300 feet of a doctor” or “People treat emergency rooms like places they should go when there isn’t an actual emergency situation.”
2. Instead of considering policy alternatives, throw a lot of stuff that is largely unrelated except having something to do with “health care” into a giant, opaque bill. Actually, several of them. Several of which manage to solve problems that nobody has identified, like “older Americans will be forced to see a counselor every five years so they can have a depressing conversation about dying” without giving an explanation of either how this is a good idea or how it saves anyone money. Although it does solve the problem “how can various rent-seeking groups get all of the population to use their services on a regular basis?” which isn’t really a health care problem, but I digress.
3. Yell and scream a lot about how everyone is trying to murder their political opponents, old people, and/or key Democratic voting blocs, and particularly about how people are being unpatriotic by yelling and screaming at each other.

Thus, I conclude that the policy process model is actually prescriptive, not descriptive. No wonder nobody asked me to teach policy again in the fall. (I lack faith that stages 4 and 5 will correspond to the official versions either, should we see those.)

Chris’s probably silly (and completely non-libertarian, which is an under-appreciated asset for potential policy solutions in D.C.) health care plan:

• Allow anyone who wants it to be covered by Medicaid. Make everyone over the current Medicaid eligibility thresholds who chooses to enroll pay for it using some formula scribbled in the margins of a draft copy of this post. Every time someone who doesn’t have insurance shows up at an emergency room, they get a stern talking to about signing up for Medicaid or something else while they’re sitting on their butt anyway during triage. People who do this for minor ailments get the stern talking to several times before they are seen so they get the point, and a brochure stapled to the crap they leave with. People who continue to show up without insurance for minor ailments get escalated to meet Mike Tyson and then receive immediate treatment (for Tyson, not the minor ailments).
• Allow anyone who loses his or her job to buy into COBRA until becoming employed by an employer offering health care or becoming eligible for public assistance through Medic*. Throw money at people receiving unemployment benefits to buy in.

Voila. Everyone who wants it can now afford insurance and has access to it. That was two paragraphs. We can put that in legislature-ese and make that a 30-page bill. The rest of the nonsense is about “cost control” which isn’t going to happen in practice, since we can’t compare costs to counterfactual reality (the world without “cost control” or other worlds with different “cost control”). This crap is going to be ridiculously expensive no matter what, and whatever costs we might be able to control (doctors using two little band-aids instead of one big one, prescribing the Really Awesome Cholesterol Drug instead of the Not Quite So Awesome Cholesterol Drug That Doesn’t Work But Is Cheaper In Theory, throwing people in the Really Fancy Scanner rather than just having them sit on some film and swallow some U-238) are rounding errors in that.

Besides, Hugo’s paying so who cares?