The words ‘individual mandate’ have come to haunt President Obama and his administration, at least in the U.S. Supreme Court – but regardless of the forthcoming ruling that particular aspect of the Affordable Care Act just might double as a 2012 campaign pièce de résistance.
In the meantime, with the Supreme Court slated to hear arguments in the individual mandate case officially known as Florida et. al. vs. United States Department of Health and Human Services at the end of March, health pundits and prognosticators are busy scoring how the ruling might play out.
Brain Ahier, health IT evangelist, author of the Healthcare, Technology, and Government 2.0 blog, and city councilor in The Dalles, Ore., has the ruling “tagged at 4 to 4 with Justice Anthony Kennedy being the swing vote, which is usually the case. It took me a little while to get to 4 to 4. I think it’s possible that the Supreme Court will find the individual mandate portion unconstitutional at the federal level, basing it on the Commerce Clause. And because of the makeup of the court right now and looking at the constitutional interpretation, it’s possible that would be taken out.”
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Brookings Institution senior fellow Henry J. Aaron predicts in a National Journal article that the Supreme Court will declare the mandate constitutional by a vote of 7 to 2 or 8 to 1 – and points out that the individual mandate is an important and necessary part of the overall bill.
“Healthcare is so important to people – both because it claims a large part of their incomes and because it is so important in their day-to-day lives – that change is inevitably frightening,” Aaron explained to Government Health IT. “Even if the cost is growing too fast and even if the number of people without adequate insurance is growing frighteningly, any given change is bound to be somewhat unnerving for many. Nervous people are open to warnings of doom, even when those warnings are not warranted. I think that the warnings of critics of the ACA are unreasonable – in many cases, detached from reality.”
In late January, in fact, the Robert Wood Johnson Foundation published the results of a study, which found that if the health reform law moves forward without an individual mandate, premiums could skyrocket as much as 25 percent because young, healthy people would likely opt against buying coverage, among other factors.
This case made it to the Supreme Court in the first place because the Obama administration framed the universal coverage aspect as a mandate, a penalty, within the Affordable Care Act – and that is what the co-plaintiffs claim goes beyond the Constitution.
“If they framed it as tax, if they tacked it onto the Social Security Act like they tacked Medicare onto the Social Security Act, the people on my side of the fight would not have had a whisper of a chance in the Supreme Court,” said John Graham, director of healthcare studies at the Pacific Research Institute. “But because they framed it as a penalty, which is almost unheard of, they’ve kind of gotten themselves into a box here.”
Neither fortune tellers nor life-long legal scholars can guarantee how the court will rule, but Kevin Pho, MD, otherwise known as KevinMD in the blogosphere and on Twitter, said that “even if they do strike it down, I think the core of the Affordable Care Act will continue.”
Indeed. Pulling the individual mandate would disarm the federal government from enforcing universal coverage but it would not preclude states from doing so. States, in fact, like Massachusetts, which already has its own individual mandate and Vermont, where Gov. Peter Shumlin in late January introduced legislation, Act 48, which embarks the state down a path toward a single-payer system.
“That’s Romney’s argument: States have the right. They can do what they want in Texas, they can do what they want in Massachusetts,” Ahier said. “So Massachusetts can have an individual mandate and Texas doesn’t have to. The problem with that argument, in my view, is that all of us in the United States are paying for this, so I end up paying for mistakes that the other state makes.”
Graham echoes that, and asks why – since President Obama does not appear to have any problem with imposing higher-taxes – did he define it as a mandate and not a tax-hike?
“It was so he could go on the campaign trail and say Obamacare is Romneycare. It’s kind of understandable that Romney is tripping all over this issue and it plays to Obama’s strengths. Obama can say legitimately ‘this is a Republican thing, the individual mandate. It came out of the Heritage Foundation, was signed by a Republican governor in Massachusetts, so what are you guys whining about?’” Graham continues, answering his own question. “In the political sense, the democrats did it right. They did it very cleverly and took an argument away from us – or at least they took an argument away from Romney, they didn’t take it away from the rest of us.”
This commentarty originally appeared in Healthcare Finance News March 2012 issue. For more of our primaries coverage, visit Political Malpractice: Healthcare in the 2012 Election.