The Senate Judiciary Committee held a largely meaningless salon today about the constitutionality of the individual mandate. There are a bit over three hundred million people in America, and the only one who matters on this score is Anthony Kennedy. And he wasn’t at the hearing. So I’m not sure what it accomplished.

However, while it’s fun to cherry-pick individual comments from legal scholars to buffet your particular points on the mandate and its constitutionality, let me cherry-pick in a different direction. Because one thing about which nobody disagrees is that the health care law would be constitutional with a public option.

FRIED: As I recall, the great debate in the Senate was between this device and something called the public option. And the government option was described as being something akin to socialism and I think there is a bit of a point to that. But what is striking Senator is that I don’t think anybody in the world can argue that the government option or a single payer federal alternative would have been unconstitutional.

Under the mandate, the public must pay a private company for health insurance under the threat of a penalty. There are ways to design that which even conservatives would agree make it constitutional, like through an open enrollment with a penalty for anyone who wants to enroll after the deadline. And there are several other workarounds which essentially put a penalty on anyone who doesn’t buy insurance in a prescribed time. If you had a functional political system, you could make something like that work.

But with a public option, there’s no argument whatsoever. The government is one of the many options that individuals have for their health insurance needs. They purchase it from the government and the government provides the insurance. In the case of Medicare, the money gets taken out in the form of a tax, and seniors get automatically enrolled. But there are no current lawsuits on the constitutionality of Medicare.

I do not believe that the death of the mandate or the overall health care law will somehow lead to suddenly enlightened lawmakers looking to add a government role in the system (maybe over time, with a lot of dead uninsured under the bridge). But it’s worth noting this. The Administration clearly didn’t take these legal battles seriously, and time will tell if they were well-advised in that regard. But this could have all been avoided with a public option to force competition on price and quality.

UPDATE: By the way, even though Bill Nelson’s resolution has no binding force and is largely symbolic, I support it, and so should every Republican concerned about “uncertainty.” Everyone knows the Supreme Court will have to make the ultimate decision here, so why don’t they just get on with it.

David Dayen

David Dayen