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?