Right now, this week, the big debate before the Supreme Court over the Affordable Care Act (ObamaCares) is whether or not the Federal Government has the power under the commerce clause to require individuals to purchase health care.
Can they make people buy something if they don't want to buy it?
I think despite all the hullabaloo about it all, the mandate itself isn't the heart and core of health reform. It's an appetizer. A garnish. And more than that's it's a Republican Garnish, developed as an alternative in 1993 to HillaryCare as Rachel explains here.
When Hillarycare was proposed in 1993 it didn't include an Individual Mandate. It had an employer mandate. It also didn't include a Public Option. All of the insurance plans included were to be private, but what would be added would be a National Health Board, and State-based boards which would establish standards and requirements for a set of non-profit Associations (or "Alliances") which would implement those standards, as well as aggregate and negotiate with those private insurers.
Here's how it's described in the HillaryCare Mythology.
The basic idea was not complicated. Consumers, not employers, would choose health plans. Firms would pay into a regional health insurance purchasing cooperative (later called an "alliance" in the Clinton plan), which would offer private plans of varying types to all residents under age 65 in an area (Medicare would remain separate). The alliances would be required to offer traditional, fee-for-service insurance as well as health maintenance organizations and preferred provider plans. Benefits, copays, and other features would be standardized so as to make it easier for consumers to compare prices and get the best value for money. Health plans would have to offer coverage to everyone without exclusions of preexisting conditions, and they would be paid according to the characteristics of the population they enrolled. If a plan enrolled a relatively older and sicker population, the money it received from the alliance would be adjusted upward; if it enrolled younger and healthier members, it would get less. Many people misinterpreted "managed competition" to mean "competition among managed care plans." But "managed" as a modifier of "competition" referred to a variety of measures -- open enrollment, standardized benefit packages, risk-adjusted payments to plans, independent assessment of the quality of care -- intended to stop insurers from trying to cherry-pick healthy subscribers and to get them to focus instead on providing higher-quality service at lower cost.
If you couldn't afford to buy healthcare, it would be provided to you
for free, essentially rolling the current Medicaid program forward. The primary goal of HillaryCare at the time was to expand access to care, but also
bring down the rise in Medical Inflation. Although other factors were involved, this is what happened to the Health Care CPI.
So in many ways, even though it didn't pass - it worked - at least for a while. Many of the ideas such as "Alliances" that were suggested private industry actually implemented. Creating quality standards and making the physicians and hospitals responsible to their clients did help things.
It just didn't last.
Just as they say now, they called this plan a "Big Government Take Over" of Health Care - even though all of the insurers were private. They said that the National Health Board, the State Boards and the Alliances (which under the Hillary proposal established at least two per state to ensure choice and competition), were all a brand new requirement for 151 New Government Agencies.
Simply the fact that the Alliances were "Not for Profit" somehow morphed them into "Government Run".
In opposition to this Republicans from Newt Gingrich to Bob Dole to the Heritage Foundation all offered the Individual Mandate. The goal of the mandate was to avoid healthier people sitting on the sidelines and waiting until the last minute, when their condition and the cost has become the most acute and desperate and is primarily coupled with the ban on blocking access to care due to "pre-existing conditions".
Yesterday the Supreme Court had to make a preliminary decision on whether the penalty associated with not purchasing your own care was a "Tax", and whether that tax is non-severable from the mandate. Under the Anti-Induction Act, there is no right to sue against a tax, when that tax hasn't yet been assessed - and the penalty won't be assessed until after the State Exchanges (which are clearly modeled on the Alliances) go online and pre-existing condition limits are fully banned.
Apparently the court has made a decision on that point otherwise we wouldn't be having any testimony on the case today. If they've decided that it's no a tax, even though it's collected via the IRS and what exactly else does the IRS do, then there may be able to continue to argue the mandate isn't severable since Congress didn't include any specific severing language.
On the other hand if they decide that the mandate can be addressed independent of other portions of the law, then no matter what they decide after this point this can easily be called a WIN for those who support Health Reform.
Without the mandate, we still would have the Exchanges. Within those exchanges, which unlike the Non-Profit Alliances actually are State and Federally Run, we would still have a Non-Profit Option of Multi-State Plans run by the Office of Personnel Management that was put in place of the Public Option which would have been run by HHS in a manner similar to Medicare. (Whether this replacement will or won't improve costs as much as the PO or not, still remains to be seen) We would still have the ability of young people to stay on their parents plan until age 26. We would still have 35% tax credits for small business to help them purchase insurance. We would still have the 80-85% MLR requiring health insurers to spend most of the money they receive from premiums on actual care. We would still have the requirement for Insurer who charge more than the 85% MLR to issue refunds to plan participants retroactive to 2010. We would still have free preventive care for mammograms, cancer screenings and contraception to avoid chronic illnesses like cervical cancer and policystic ovarian syndrome. We would still have the Medicare Savings that was proposed in the bill via the Comparative Effectiveness Panel as well as the Independent Patients Advisory Board for Medicare which would analyze and suggest to Congress cost savings and care improvements for the plan which according to the Medicare Trustee has extended the life of the fund by years.
That's a lot.
In all of the district and appellate cases which preceded this case reaching the SCOTUS, only one judge argued that mandate was not severable. Even if the mandate is lost in this battle, we are not IMO likely to lose the entire Health Care law.
The only thing truly at risk, would be the ability to ban pre-existing condition limits for health plan Outside the Exchange as that provision is financially link directly to the mandate.
I think we can afford to lose that. Compared to everything else, it doesn't really matter. It might slightly drive up costs, but it won't impact the quality of care.
But honestly, there is a the possibility that the mandate will be upheld as Constitutional. A survey of former clerks of the most Conservative Justices seems to think so.
The survey asked former Supreme Court clerks and lawyers who have argued cases before the Court to assess the probability, on a scale from zero to 100 percent, that the Justices would strike down the law’s mandates on individuals to purchase health insurance or its provisions expanding eligibility for Medicaid to millions of more uninsured adults.
Overall, those surveyed felt there was only a 35 percent probability that the Court would strike down the law’s individual mandate as unconstitutional. Attorneys who had clerked for one of the Court’s four conservative Justices and those who had clerked for Justice Anthony Kennedy, who is considered the key swing vote on the issue, forecast a somewhat higher probability that the law would be struck down than those who had clerked for the four liberal justices.
Since the Mandate
Is a Conservative Idea which is based on the idea of "personal responsibility" and also that many of the Justices such as Alito, Scalia and even Roberts rather than restrict it, this view by former clerks does make some sense to me.
Even Anti-Health Care Protesters in front the the SCOTUS think people should "Pay for it Themselves"...
a dozen of Obamacare opponents associated with the group Tea Party Nation chanted “pay for it yourself” in front of the Supreme Court early Tuesday morning, implying that uninsured Americans should finance their own health care needs.
Which is exactly what the Individual mandate requires.
States can mandate people buy insurance, just as RomneyCare does. The Federal Government has won previous cases going back over 60 years showing that it has the power to regulate insurance. President John Adams mandated that every Sea Captain Provide Health Insurance (using a Tax-based/Public Option-ish System) for their crew. President George Washington mandated that every able bodied man between the age of 18 and 45 purchase a Musket for possible use as a member of the Militia.
I think the Mandate will probably be upheld, (or I did until today!) but if it's not - as long as the SCOTUS doesn't take the radical and rare position that it can't be severed and looked at independent of the rest of the bill - it's still not the core of Health Reform. It's a side issue IMO.
We can afford to lose it if we get to keep everything else, most of which was originally proposed in HillaryCare and although done slightly differently, is now being implemented.
Vyan
9:53 AM PT: Despite predictions the mandate had a really bad day before the SCOTUS today. That may make severability our last best hope for the laws survival.