What about state-imposed individual mandates?

If the Supreme Court strikes down the individual mandate but leaves the rest of the ACA intact, one fact to keep in mind is that states maintain the right to impose such a mandate.  Backhandedly, even the plaintiffs acknowledged as much. The state respondents' brief makes much of a distinction between regulating commerce and "creating" it by requiring individuals to purchase something, asserting that Congress does not have the right to "compel individuals to engage in commerce." But the states do have that power:

The power to force individuals to engage in commercial transactions against their will was the kind of they reserved to state governments more directly accountable to the people (p. 17).*

Massachusetts, ICYMI, has exercised that power.  No one has challenged it.  And Mitt Romney has been insisting for two years that each state should have the power to find its own healthcare solution.

What's Obama's peer group job creation ranking? Way better than 47th of 50

Romney's job creation record as governor of Massachusetts bears a striking -- if superficial -- resemblance to Obama's as President: a first year of job losses followed by three years of weak growth (actually, for Romney, a rather strong final year following two near-flat years).

Romney has been attacking Obama's job creation record since...forever.  You know the drill: Obama made the recession worse, Obama isn't working, nearly a million jobs lost on his watch.  This week, as the Obama team turns the tables and broadcasts that Massachusetts ranked 47th out of 50 states in job growth during Romney's tenure, the Romney camp finds an excuse: you can't blame him for first-year job losses. Of course, if you give Obama that pass, the country has gained nearly 4 million jobs on his watch.  Or, as Michael Tomasky calculated: excluding each executive's first year, and through April of their fourth year, Obama has presided over 2.35% job growth, Romney over 1.9%.

Hence, two Obama spox pounced this morning on Twitter:

Jim Messina: Romney economics: Under Romney, MA fell to 47th out of 50 on job creation. Under POTUS, we see 27 months of private-sector job growth.

Stephanie Cutter: Romney campaign undercut its entire strategy by arguing that he inherited bad economy so 1st yr shouldn't be counted.

What's needed to concentrate fire, it seems to me, is an apples-to-apples comparison to Romney's 47/50 ranking, or a reasonable facsimile thereof. In reality, any local economy in any given period is sui generis; Rick Perry is not a "better" job creator than Mitt Romney. But with Romney shamelessly manipulating the stats to attack Obama, it's fair to come up with a "peer group" for the US during Obama's term.  And what could be fairer than the OECD, which includes Korea, unemployment rate 3.7% at present, and Japan, clocking in at  4.5%?  So let's have a look.

Hey, Romneycare may get a 'death panel'

Not really. But legislation is afoot to create an IPAB (Independent Payment Advisory Board) on steroids -- Trenbolone to the ACA's Creatine. The WSJ's Jennifer Levitz and Anna Matthews report:

Key state legislative leaders unveiled a bill Friday that proposes setting a target for the rate at which overall health spending should rise—a step that would once again put the state in the forefront of efforts to remake the American health-care system...

Another 'limiting principle' to individual mandate: states can opt out

In the Supreme Court arguments over the constitutionality of the individual mandate in the Affordable Care Act, the justices who seemed hostile to the mandate challenged Solicitor General Donald Verrilli to articulate a "limiting principle" -- a rule that would place boundaries on Congress's right to mandate purchases. Verrilli did so, rather awkwardly:

When Congress is regulating -- is enacting a comprehensive scheme that it has the authority to enact that the Necessary and Proper Clause gives it the authority to include regulation, including a regulation of this kind, if it is necessary to counteract risks attributable to the scheme itself that people engage in economic activity that would undercut the scheme.

Much of the oral argument focused on the plaintiff's claims that the mandate exceeded the scope necessary to fulfill this purpose --  that it was was "forcing healthy individuals to immediately start paying inflated premiums that exceed their actuarial risk," as Michael Carvin's brief put it -- an argument that seemed to make a deep impression on Justices Alito, Roberts and Scalia. I have argued in several posts that the drafters of the ACA in fact took care on several fronts to limit the scope of the mandate to the minimum required to create a viable private market for affordable health insurance (e.g., by providing catastrophic coverage and limited-coverage options)-- in effect, that the mandate is self-limiting. I have further suggested that Justice Kennedy, who seemed troubled by the scope of the mandate but also recognized  the need to draw the relatively young and healthy into the insurance market, might either recognize the relatively narrow scope in his ruling or divide the baby by limiting the mandate to catastrophic coverage -- an argument developed with considerably more legal precision by Marty Lederman, who served in Obama's Office of Legal Counsel.

Here I want to focus on an element in Donald Verrilli's reply brief  that provides a complementary path to arguing either that the mandate is already sufficiently limited or that it might be further limited.

Polarized politics, 1787

In the United States, the bitter charge that a majority that wants to bring an ambitious project to a vote is trying to ram it down our throats has a long pedigree.  In Pennsylvania, the first state to ratify the Constitution, such was the lament of the minority who were either opposed to ratification, undecided, or in favor of making ratification conditional on the opportunity to amend.

Moreover, the minority was right, according to the narrative stitched together by Pauline Maier in  Ratification: The People Debate the Constitution, 1787-1788.  Pennsylvania proponents of the Constitution wanted to be the first to ratify. They convened the ratifying convention in November, just two months after the framers completed their work, and before copies of the Constitution had had time to fully penetrate the enormous rural expanse of the state. In fact they scheduled the ratifying convention before Congress had decided the manner in which it would present it to the states.  That led a conditional supporter of the proposed new scheme of government, Robert Whitehill, to complain, "I don't know any reason there can be for driving [the Constitution] down our throats, without an hour's preparation"...unless it was "a plan not fit for discussion" (p. 61). 

Wise men, stateswomen...today's Democrats?

Appalled by the prospect that a Brown victory in the Massachusetts Senate race could scuttle health care reform -- and Obama's presidency -- Andrew Sullivan fumes:

What you see here is the fathomless awfulness of the Democrats. Too fractured and listless to get a solid health insurance bill through both Houses in anything like the time they wanted, too disorganized to make a strong and coherent case for their proposal...

But losing Kennedy's seat is a near-epic failure. If health reform fails, it will be because of a fatal combination of Democratic hubris and Democratic weakness. They just won the presidency and both Houses. And this is what they manage? Really, who wants to belong or support a party this goddamn useless?