Wednesday, February 2, 2011

Did the Democrats compromise health reform with the individual mandate?

Another judge has ruled the individual mandate unconstitutional. Putting aside the merits of that argument other than to say that in this recent decision they seem weak, I want to use a bit of hindsight to look back at when they passed the ACA.

The more I think about it the more I think Dems might have screwed up. The individual mandate wasn't their idea originally. It wasn't an idea liberals were married to. So its not like liberals would have hated the ACA without an individual mandate. And since it was originally a Rep idea (yes, I love pointing that out), they either thought Reps wouldn't oppose it on constitutional grounds or thought they would be able to win that argument.

Holding off for a second on the merits of Dems winning a political argument in the court of public opinion, you can't overlook the fact that the Supreme Court is fairly conservative at the moment. So if they simply thought they could win the argument that was quite the risk being wagered on the whims of Justice Kennedy's opinion.

And if they simply didn't think Reps would oppose it on constitutional grounds then I'm afraid I've overestimated the political strategic thinking of Dems, which is saying something because my regard for it wasn't high to begin with.

Using hindsight, which is admittedly a bit unfair, I have to wonder if there was another policy that could have achieved what the mandate hopes to achieve that wouldn't raise the same constitutional questions. For instance, the guy who came up with the individual mandate suggests this:

My fix would be to simply say raise everyone’s taxes by what a health insurance policy would cost -- Congress definitely has the power to do that -- and then tell people that if they obtain insurance, they'll get a tax break of the same amount. So instead of a penalty, it’s a perfectly legal tax break. But this seems to me to angelic pinhead density arguments about whether it’s a payment to do something or not to do something.

I'm not sure if that would have the same effect of the mandate as far as convincing people to buy insurance. But it would without a doubt be constitutional. And I don't see why it would have cause Dems who were on the fence about voting for the ACA to balk at voting for it.

If Justice Kennedy decides that the mandate is unconstitutional Dems will have to look back on what they did and ask these questions. As long as the whole bill isn't repealed they will still have insured a lot of people who otherwise wouldn't have had insurance. But it will be a significant political victory for conservatives and it will make it even more difficult to further reform health care.

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