Carly Fiorina Betrays The Central Unifying Principle Of Republican Constitutional Theory

Obamacare is unconstitutional.

There’s no belief that is more central to the Republican Party’s vision of the Constitution than this simple article of faith. Asking a Republican partisan to deny it is like asking a Christian to deny that Jesus is the Son of God. Such is the primacy of the unconstitutionality of Obamacare in the Republican faith.

Yet, in a 2013 interview unearthed by CNN’s Chris Moody on Thursday, former tech executive and GOP presidential candidate Carly Fiorina breaks with her party on this most basic issue of political faith. Worse, when asked to comment on the 2013 video, a Fiorina campaign spokesperson repeats the heresy — Carly Fiorina supports an individual mandate, the original sin at the heart of Obamacare.

NFIB v. Sebelius, the first Supreme Court case seeking to take down the Affordable Care Act, was built upon two principles — that the individual mandate is unconstitutional and that the mandate is such an essential keystone supporting the entire law that the whole thing must be repealed if this one piece falls. Nearly the entire Republican establishment lined up behind these legal arguments. Republican-led states were plaintiffs in the litigation. Speaker John Boehner filed a brief supporting this attack on Obamacare. So did 43 Republican members of the Senate.

And, while the GOP ultimately did not prevail in NFIB — though they did receive a consolation prize that allowed Republican officials to block the law’s Medicaid expansion in many states — that case was still a catalyzing event in the development of Republican legal theory. From the Nixon administration through the moment Republican lawyers began talking about a legal challenge to Obamacare, GOP legal rhetoric had largely focused on the virtues of judicial restraint. After Obamacare, Republicans have grown increasingly eager to use the judiciary to mow down laws they do not like. Otherwise reliably conservative judges (and justices) who vote to uphold the Affordable Care Act have increasingly become pariahs in GOP circles.

The notion the individual mandate’s unconstitutionality is so central to the Republican faith, in other words, that the GOP literally rebuilt its entire theory of the proper role of the judiciary to accommodate the view that Obamacare is unconstitutional.

Admittedly, Fiorina’s support for an individual mandate is somewhat qualified. According to her campaign spokeperson, she does not support the package of reforms contained in the Affordable Care Act, and instead supports a weaker version of health reform originally proposed by the conservative Heritage Foundation in 1989. As CNN characterizes her campaign’s explanation, “Fiorina’s support for an individual mandate . . . differs from Obamacare in that the law’s mandate demands that every American be covered with plans that include a higher threshold of services.”

This is a meaningful policy distinction — the Heritage proposal was quite different from the Affordable Care Act, and it included a number of conservative fantasies such as voucherizing Medicare and slashing Medicaid. It is not, however, a meaningful constitutional distinction. As the four dissenting justices who sought to repeal the entire Affordable Care Act wrote in NFIB, “the Act before us here exceeds federal power” because it “mandat[es] the purchase of health insurance.” The fact that Fiorina would make her mandate smaller is irrelevant; any individual mandate is heresy under this reading of the Constitution.

Original Article
Source: thinkprogress.org/
Author:  Ian Millhiser