Its elimination won’t kill the law overnight, but it is definitely a poison pill.
Obamacare advocates have insisted since 2010 that the individual mandate was the “linchpin” of health care reform. That was the primary argument used by the government lawyers who defended it before the Supreme Court in 2012, and it remained the party line until last month. As recently as December 18, Erwin Chemerinsky of the UC Berkeley School of Law wrote, “It always has been understood… that the individual mandate was the linchpin of the statute.” Then, while celebrating the legislation that eliminated it, President Trump averred, “We essentially repealed Obamacare because we got rid of the individual mandate.”
Trump merely reiterated the oft-stated opinion of countless Obamacare supporters concerning the mandate’s importance to the success of “reform.” Yet the very people who have repeatedly warned us that repealing the individual mandate would kill “reform” suddenly executed a vertigo-inducing pirouette. Politico, for example, had just published an article on the impending repeal of the mandate under this portentous headline: “The stealth repeal of Obamacare.” But shortly after Trump publically agreed with its basic premise, Politico’s editors rushed out a contradictory piece titled: “No, Trump Hasn’t ‘Essentially Repealed Obamacare.’”
Now the media has stopped running articles with gloomy titles like “Killing the Individual Mandate Will Probably Kill Obamacare,” and is instead publishing pieces under happier headlines: “What if we don’t need the individual mandate after all?” Meanwhile, President Trump was widely ridiculed by the left for his remark and the “ignorance” it revealed concerning Obamacare. And, of course, the intrepid “fact checkers” at PolitiFact joined the chorus by braying: “We rate Trump’s claim False.” But if the President is wrong, what about Professor Chemerinsky? Is he making a “false” claim when he describes the mandate’s demise thus:
Republicans have continually opposed Obamacare and sought its repeal. Earlier this year, they failed to do so. Now, under the stealth of a complex tax reform bill, they have included the poison pill that will kill the act: the repeal of the individual mandate. There is no way to continue the other reforms of health insurance — such as the prohibition of denials for preexisting conditions, the restriction on greater charges for those with chronic health conditions, the elimination of caps on yearly and lifetime benefits — without it.
Chemerinsky is the Dean of the UC Berkeley School of Law, yet he concurs with the “ignorant” Trump on the effect of repealing the mandate. How can this be? Perhaps the professor, unlike the editors of Politico, remembers the economic theory used to sell “reform.” This concept was recently summarized by Chemerinsky’s fellow law professor and Obamacare advocate Timothy Jost at the Health Affairs blog, where he refers to “the now familiar ‘three legged stool’ of the ACA: its prohibition against health status discrimination, individual responsibility requirement [i.e. the mandate], and subsidies for lower income people to buy exchange coverage.”
This stool analogy was dreamed up in 2009 by Jonathan Gruber, who infamously attributed the passage of Obamacare to the “stupidity of the American voter.” The advocates of government-imposed “reform,” who were at that time desperately seeking a pseudo-scientific way to explain why the mandate was necessary, glommed onto Gruber’s metaphor with glee. Obamacare apologists, including the government lawyers who argued NFIB v. Sebelius before SCOTUS, have used it ever since, saying that all three legs — including the mandate — would have to remain permanently in place in order for their scheme to work. As Gruber himself phrased it:
Removing the Affordable Care Act’s mandate would eviscerate the law’s coverage gains and greatly raise premiums. And going further by only keeping the market reforms and the small business tax credit would virtually wipe out those coverage gains and cause an enormous premium spike. Without all three legs, the stool — and effective health reform — will not stand.
In other words, as President Trump’s remark reminded everyone, a three-legged stool can’t stand on two legs. But Gruber is being typically disingenuous about why premiums will skyrocket. Removing the mandate won’t cause them to increase a dime. Premiums will merely rise to the level they would long since have reached had the mandate not distorted the normal operation of the market. The government forced millions of healthy people into the risk pool by requiring them to buy coverage they didn’t want and couldn’t afford. That was a crime against democracy. As Alaska Senator Lisa Murkowski, who voted to remove the mandate’s fine, put it:
I have always supported the freedom to choose. I believe that the federal government should not force anyone to buy something they do not wish to buy in order to avoid being taxed. That is the fundamental reason why I opposed the Affordable Care Act from its inception and also why I cosponsored a bill to repeal the individual mandate tax penalty starting as early as 2013. And that is why I support the repeal of that tax today.
This, in the final analysis, was the most important service Senator Murkowski and her fellow Republicans performed for the nation. They struck a blow for individual liberty. If not for the moral cowardice of Chief Justice John Roberts, the individual mandate would have been eliminated five years ago. And, even now, there is still a largish fly squirming in the ointment: Strictly speaking, the mandate hasn’t actually been repealed. Because the tax reform bill had to be passed under the arcane rules of the reconciliation process, the provision involving the individual mandate merely reduced the tax-penalty for failing to buy insurance to zero.
If the Democrats ever get control of Congress and the White House again, they will reinstate the fine. And it will be far larger than the one that was just eliminated. This is one of the best reasons for conservative voters to show up at the polls in record numbers during the upcoming midterms. The effective repeal of the individual mandate, as Professor Chemerinsky and Trump accurately point out, is a poison pill that will eventually kill Obamacare. But, with the help of beefed up Republican majorities in Congress, President Trump can finish off whatever is left of the risibly titled “Affordable Care Act.” With that done, he will probably be unbeatable in 2020.
Sen. Lisa Murkowski (YouTube screenshot)