File this under "wishful thinking":
I wish the Affordable Care Act ("ACA") had had what corporate M&A types call a "poison pill" but I'll name a "Ben Kenobi clause":
A "Ben Kenobi clause" in the context of healthcare reform would be a clause that provided, simply, that if the individual mandate (which is what makes the ACA fiscally sound) were struck down as unconstitutional, then an unquestionably-constitutional Public Option automatically would go into effect, and if the entire ACA were struck down, then the unquestionably-constitutional alternative of Medicare-for-All automatically would go into effect.
Legally, such a clause would have acknowledged the Constitutional precariousness of the individual mandate and the stronger constitutional basis for socialized medicine. (Congress clearly has the power to tax the People and spend the resulting money on their healthcare. That's why Medicare exists: it's an appropriate exercise of the taxing and spending power. Not even Scalia or Thomas can argue with that.)
But more important are the pragmatics of such an approach: a "Ben Kenobi" clause would have presented the Supreme Court with a stark choice: either uphold the ACA as-is, thus allowing private businesses to continue providing most of America's healthcare services (which is what conservatives want), or be the speed bumps that jolted America onto a new track, the track to socialized medicine (which is what conservatives don't want).
In fact, the Administration is arguing before the Court that obligating people to purchase their own insurance amounts to the same thing as taxing them directly. If the ACA survives, it will be precisely because Justice Kennedy buys that argument and understands that the individual mandate is nothing more or less than an attempt to make a healthcare tax palatable. But I doubt he'll do it; it's much more likely that he, and the more conservative members of the Court, will kill some or all of the law, and trust that conservative obstructionism will prevent a constitutional alternative from becoming reality for at least another generation.
Which is why I wish the law made the choice more immediate and more clear. The only clearly constitutional national healthcare plan is one that taxes the People and then provides them with care -- the more paternalistic, socialistic alternative. Making that alternative automatic might have opened some Justices' eyes and prompted them to uphold the more moderate law currently before them.
Don't get me wrong: I'm not trying to second-guess Barack Obama. The healthcare reform fight was as complex a piece of public policy sausagemaking as there's ever been, and I'm aware that winning such a clause would have been tough sledding (though the key cloture votes, Lieberman and paleoDems like Nelson and Lincoln, might have accepted such a clause as a quid-pro-quo for killing the public option.) I certainly don't mean to undercut Obama's signature accomplishment in a critical election year. Although I floated this concept elsewhere during the healthcare battle, mentioning it now amounts to legislative "fan fiction."
Nevertheless, I mention it now for three reasons: First, it helps explain the central issue currently before the Supreme Court (the power to regulate commerce versus the power to tax and spend). Second, if SCOTUS strikes down the heart or the whole of the ACA, a Ben Kenobi clause might be an idea to tuck in our back pocket and pull out the next time a president renews the battle for national healthcare, because such an approach might be the only way to pry paleoAmerica into doing the right thing.
Third, like all writers of fan fiction (or imagining what I'll do with the money when I win the lottery) I find it pretty to think of Scalia and Thomas fuming about such an inescapable and distasteful choice instead of gloating in their power to kill progress, which is what I'm pretty sure they're doing right now. If things go poorly when the Court announces its decision in June, as I suspect they will, I'm afraid that pretty imaginings of what might have been will be all we have left.
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