If the Court jettisons the individual mandate, he’ll change his tune (again).

Obamacare’s apologists and their allies in the mainstream press have spent an inordinate amount of time and energy dissecting the supposed hypocrisy of conservatives on the individual mandate. They are indignant that the GOP is now in lockstep opposition to the mandate even though two decades ago some Republican senators — most of whom have long since departed from the scene — supported the concept in theory in large part to fight against even heavier-handed government intrusion into the health sector by President Clinton. How transparently political and outrageous of them!


But it’s hard to take these attacks seriously when those launching them systematically ignore the much more important, immediate, and consequential flip-flopping on this issue by their health-care hero, President Obama.

The president’s contortions on the individual mandate didn’t take place two decades ago and didn’t evolve over a period of years. He changed his position abruptly in early 2009 after he was elected president, just months after taking a hardline position on the opposing side during the entirety of the presidential campaign. And it’s a safe bet that, if the outcome of the Supreme Court’s decision on Obamacare makes it convenient for him, he will change his position yet again. Indeed, if recent history is any guide, he will do so with nary a peep from an adoring press.

The story of the president’s . . . evolution . . . on this issue begins in early 2008. Then-senator Barack Obama was locked in a bitter struggle with his Senate rival, Hillary Clinton, for the Democratic presidential nomination. On most issues, there was no discernible space between them, with both staking out traditional liberal positions on the various issues of import to Democratic primary voters.


But on health care, Senator Obama saw an opportunity. He had put out a health-care plan that checked all of the boxes of the standard Democratic approach to reform: expand Medicaid, provide new subsidies for insurance coverage, require employers to offer plans, and establish a new “public option” modeled on Medicare. But he left off of his list one crucial item: the individual mandate.


This was no small matter. Without the mandate, the Obama plan would not be considered a “universal coverage” plan in Democratic circles, as analysts, including those at the Congressional Budget Office, would expect large numbers of Americans to decline to sign up for coverage in a voluntary system. Party elites and activists would regard this as a major, perhaps even fatal, flaw. Nothing in the Democratic catechism is more sacred than the goal of “universal coverage” in health care.

So Senator Obama was taking a risk in not toeing the party line. But it was a calculated risk. He knew from polling data that, despite its popularity among party elites and left-leaning health-care analysts, the individual mandate was far less popular among Democratic primary voters. Here was a policy difference with Senator Clinton that he could exploit to his advantage in the primaries.


And exploit it he did. In ads, mailings, and debates, Senator Obama in the crucial months of the campaign hammered Senator Clinton for forcing people who couldn’t afford premiums to pay them anyway or face sanctions from the federal government. And, from Senator Clinton’s indignant reaction, it’s safe to say the attacks hit the mark.


Now, fast-forward to late 2008 and early 2009, as Senator Obama was on the road to becoming President Obama. The November election could not have gone better for the Democrats. Obama won his race against John McCain handily, and the incoming 111th Congress would have commanding Democratic majorities in both houses, giving the president essentially free rein to enact a sweeping agenda. Democratic activists across the board were salivating at the prospect of using those majorities to finally push through a “universal coverage” health-care plan.

But there was a small problem. The Obama plan didn’t have a mandate and therefore wasn’t “universal coverage.”


What to do? Change positions, of course. By December 2008, just weeks after the election, rumors were already circulating to that effect. By spring 2009, as initial drafts of the legislation were being assembled in Congress, the administration made it official that the president was changing his position and would push for the mandate.

Some journalists have tried to paper over this head-spinning flip-flop as simply a matter of new and better information. According to the account popularized by Ryan Lizza’s pieces in The New Yorker, the president received a memo in April 2009 explaining that official estimates would show that, at a cost that was only slightly higher, a health-care plan with the mandate would cover millions more people than would a voluntary program. That is said to have changed the president’s mind.

This is nonsense. It was always known that a plan with a mandate would do better on coverage numbers than would one without it. That was the whole point of the mandate: It would force millions to use their private resources to buy coverage and thereby increase the number of the insured without too much more public spending. This was not new information in 2009. Senator Obama chose to oppose the mandate in 2008 because it was politically expedient. In 2009, he changed his position because he found it advantageous. It’s as simple as that.

Since its enactment two years ago, the individual mandate has been challenged in federal court on constitutional grounds. The Obama administration has filed brief after brief in these cases, arguing that the mandate is essential to the operation of the rest of the law. Indeed, somewhat surprisingly, the administration has gone so far as to tell the various courts, including the U.S. Supreme Court, that if the mandate were to fall, then community rating and guaranteed issue would have to go too because, without the mandate, these provisions would destroy the private insurance market.

Why would the administration take such a position, which might expose even more of the law to the risk of an adverse court ruling? For political reasons, of course. The administration’s lawyers were attempting to turn up the heat on the judges by essentially telling them that they couldn’t kill just the unpopular provision in the law; they would have to take out the popular ones, too.


But what if the Supreme Court ignores the administration’s request and kills just the individual mandate? Would the administration continue to adhere to the logic of its legal briefs and go back to Congress for fixes to prevent the destruction of the private insurance industry?

Don’t count on it. If the Court goes that route, expect the president and the administration to turn on a dime and, on the day of the court ruling, to adopt an entirely new position regarding the mandate. If it goes, they will claim they never really needed it anyway to make the law work and that they have the tools they need to sign up nearly all Americans to affordable insurance. In other words: Full steam ahead! This new administration line is already being tested by trusted surrogates.

President Obama isn’t the first politician to shift his position on an important issue when it was politically convenient for him to do so, and he won’t be the last. But he has done it in a particularly brazen manner, complaining all the while that it’s his political opponents who are craven opportunists. Perhaps he’s just delivering the audacity he promised when running for office.

— James C. Capretta is a fellow at the Ethics and Public Policy Center. He was an associate director at the Office of Management and Budget from 2001 to 2004.