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Repealing the Individual Mandate

In the fight to repeal the Patient Protection and Affordable Care Act, more commonly known as ObamaCare, activists and legislators are faced with a basic strategic decision. Should we try to repeal or have nullified individual components of the law, or should we leave even the worst parts in place while we try to repeal the whole thing?

I have always believed in leaving the law intact, in all its unfettered malfeasance, as a way to remind American citizens, legislators, and courts just how far we have fallen. But the time has come for that strategy to change. We should start the repeal process with one of the worst features at the heart of the PPACA, the mandate that individuals buy health insurance.

Avik S. Roy is a well-regarded expert in free market health care policy. Roy opposes repealing the individual mandate by itself, arguing at NRO that doing so would

  • Destabilize the private insurance market, which would
  • Be blamed on Republicans, and
  • Cut the legs from under court challenges to the PPACA.

These are powerful arguments. Allowing the PPACA to go into full effect without the individual mandate would greatly harm the insurance industry. It would eventually lead to an end to private health insurance, as more and more people decide not to take on health insurance until they need to use it.  At the end of that road lies a single-payer system.

That Republicans would take the blame in the media for the mess approaches a tautology.  The only question is whether or the free market itself or its Republican adherents would receive more scorn.

While we pin our hopes for an end to the law on the courts, repealing the individual mandate would leave the Constitution’s defenders such as Virginia Attorney General Ken Cuccinelli struggling for a case. Much of Virginia’s case, as I understand it, is built on Virginia having enacted a state law against forcing an individual to buy health insurance.

Dean Clancy of FreedomWorks writes in response to Roy that rather than destroying the private market, the threat of disruption caused by repealing the mandate would force Congress finally to dismantle the rest of the law. Without the fig leaf of the individual mandate, Democrats could not explain to their base that the law covers everyone — which it never did anyway. A new, more market-friendly Congress could enact more reasonable reforms that would actually accomplish the stated goals of health care reform.

Clancy argues further that the court cases against the PPACA are far from assured of success. Given the legal climate of the past 80 years or so, and the weak, unsteady conservative majority of the current Supreme Court, our judicial system cannot be trusted to strike down even what is to most people a facially unconstitutional law.

But my reasoning is more direct. If President Obama is reelected, we will either have the PPACA or something worse. As with his moves with the FCC and net neutrality, the EPA and cap and trade, and the NLRB, Obama will administratively reconstitute some facsimile of whatever provisions are stripped out of the law.

On the other hand, if Obama is not reelected (and if conservatives take the Senate from Mitch McConnell and Harry Reid), all of the PPACA will be repealed, whether the individual mandate is individually stripped out or not.

And the individual mandate, while unpopular, is not the worst aspect of the law. The employer mandate is far worse.  The mere threat of the employer mandate has been responsible for so much of the damage to small business since the law’s inception.

The employer mandate will continue, absent the individual mandate. The Obama economy will continue to grind America slowly into the ground. Obama will not be reelected.

Or will he? The deciding factor may not be the economy or health policy, but how many conservatives and moderates unhappy with the Obama Miracle actually get out to vote. And that, as we have said many times in these pages, will be determined by how many activists knock on the doors of our neighbors and ask them to vote. To find out more, visit the Precinct Project.

So repealing the individual mandate will have few negative consequences, even for the cynical plotting of power-centered Republican insiders concerned only for their own futures. There is plenty left to dislike in the PPACA, including its most damaging economic effects.

Finally, while leaving the individual mandate in place might make voters turn away from President Obama and the Democrats, voters will see the failure to exercise the power Republicans have been given in defense of liberty as evidence of Republican complicity with Democrats. Why should voters entrust the Republicans with power, when they won’t use it when given the chance and good reason?

More generally, Speaker Boehner and Majority Leader McConnell, there is plenty else to dislike in the Obama agenda. Repealing all of ObamaCare will not by itself cause the economy to recover, not with Obama in office demanding daily that it not do so.  Don’t hesitate to use the power you’ve been given to demand that all of ObamaCare be repealed — the voters will reward you.

COMMENTS

  • lineholder

    that might have more positive impact on our economy than simply repealing the individual mandate alone would have right now. The first is HR 1370. The second is S. 1049.

    What’s your opinion of these?

    • CMaree

      And that is to continue to hold the line on the debt ceiling negotiations.

      I can’t speak for Loren, but conservatives should groove on the short, sweet text of HR 1370 Repeal of the annual fee on health insurance providers enacted by the Patient Protection and Affordable Care Act. But that grooviness hasn’t nudged the Senate leader to push it for a vote since April.

      As for the equally groovy text of Sen. Kyl’s S. 1049 Small Business Health Relief Act of 2011, do you really think Sen. Reid will play it on his jukebox any time this year? Does Reid even care about relieving small businesses?

      Now on what Boehner and Reid are fixed on, that rascally debt ceiling, RS folks say, hang tight and hold the line!

      • lineholder

        Both pieces of legislation are related to portions of PPACA that are having a direct impact on hiring in the private sector of business, one from the viewpoint of increasing health insurance premiums for business owners, and the second includes other things as well, such as the impact of expired grandfather clauses and medical loss ratios.

        Economically, anything we can do to slow down the pace of implementation for PPACA is to our benefit right now. Going after these two bills would look really good to business owners in the private sector, including health care providers, I might add.

        Let the economy go another 4-6 months with continuing increases in unemployment, and we could see some Dems who might start begging for anything that would let them look good to business owners within their own constituency.

  • californiagold

    Suggesting that congress shouldn’t try to eliminate the individual mandate because doing so would disrupt the private insurance market is a false argument. Using that logic, wouldn’t the market be disrupted if the courts eliminate the mandate ? Of course it would, so what’s the difference ?

    The reality is, if the individual mandate is eliminated, ObamaCare cannot survive on it’s own. Lawyers in defense of the mandate have stated as much. But that doesn’t mean the end of private insurance or the start of single payer. Once the mandate is gone, the health insurance industry would lobby congress to change Obamacare, or eliminate much of it.

    Too many people are using the threat of “single payer” to keep the status quo. Even when the democrats had the white house and congress with a filibuster proof senate they rejected the single payer idea from the start. No way will the health insurance lobby allow itself to be left out in the cold whether democrats or republicans control the government.

    • Menlo

      While I don’t think the “mandate” will be formally taken off the books, I don’t think it matters if it is. It carries no meaningful penalty, even if one refuses to pay the fine; but even if it did, not enough people to make a difference would take advantage of it, primarily because it is a highly inelastic market and the available subsidies make it less of an issue to the extent it is.

      That doesn’t mean insurers won’t make claims to the contrary, and you are right that neither party will put an end to them; but they are unlikely to get anywhere with Congress or the judicial system. As Socrates pointed out, and as we’ve been seeing for the past year now, Kathleen Sebelius need only take care of matters herself through waivers and other ad hoc measures. As written, the act pretty much cedes to her all regulatory authority over the entire industry, so the lobbyists will likely set their sights on HHS. It will be interesting to see if Sebelius gets made executive of a health insurance company once her time in office is over.

      • http://teapartisan.wordpress.com Loren Heal

        If Secretary Sebelius doesn’t completely outrage Congress, she has incredible power in the industry. Just the leverage of telling insurance companies what they can charge is enough to allow her to get them to cave on anything else she dreams up.

        It’s truly an awful law.

  • izoneguy

    Bad news for ObamaCare & Romney

    Mass. Healthcare Reform Augurs Badly for Obamacare

    A new study of the healthcare reform enacted by Massachusetts and its then Gov. Mitt Romney five years ago offers an ominous warning about the likely effects of Obamacare on the nation as a whole.

    Researchers at the Beacon Hill Institute (BHI) at Suffolk University in Boston found that the Bay State healthcare reform plan has led to increased healthcare expenditures and private health insurance costs, as well as additional payments for Medicare and Medicaid, for a total of $8.5 billion in new outlays.

    In 2006, Massachusetts enacted healthcare reform legislation that promised to extend healthcare coverage to all citizens while significantly lowering costs. The law imposes mandates on residents to obtain health insurance and on employers to provide it if they have 11 or more employees.

    It also expands Medicaid coverage, establishes a health insurance subsidy program, and creates an insurance exchange that helps those who are ineligible for Medicaid buy competitively priced health plans.

    The BHI report states: ?Now that the law has been in effect for more than five years, we can begin to assess its impact on the state of Massachusetts.?

    Among the findings:

    ? State healthcare expenditures have risen by $414 million over the five-year period.

    ? Private health insurance costs have risen by $4.31 billion.

    ? The federal government has spent an additional $2.41 billion on Medicaid in Massachusetts.

    ? Medicare expenditures increased by $1.42 billion.

    The total cumulative cost over the period is just over $8.5 billion.

    But the state has been able to shift the majority of the costs to the federal government, which continues to absorb a significant part of the cost of healthcare reform through enhanced Medicaid payments and the Medicare program ? meaning Americans outside Massachusetts are helping to pay the bills for the healthcare plan.

    In analyzing the study?s results, the researchers observe: ?Cost?containment is often a major goal of health reform plans. However, this particular healthcare reform legislation did not provide an effective means for containing costs.

    ?The promise of cost?containment rested on a vague hope that the newly insured would seek preventive care, access their primary care physicians earlier in their illness and avoid costly emergency room visits. Yet the number of emergency room visits rose from 2.351 million in 2006 to 2.521 million in 2009, or by 7.2 percent over the period. The total cost of emergency visits has soared by 36 percent over the period, or by $943 million.?

    The large number of newly insured residents in the state has increased demands on the primary care system, forcing patients to visit emergency rooms at a rate significantly higher than expected.

    The BHI report also states that ?by increasing demand for healthcare services without an equal increase in their supply, the universal healthcare law guaranteed that the price of healthcare services and health insurance would increase.?

    The researchers point out that the Patient Protection and Affordable Care Act signed by President Barack Obama in March 2010 is ?essentially identical? to the Massachusetts law.

    Obama claimed the law will lower healthcare costs. But the researchers conclude: ?If the federal law is modeled after the Massachusetts law, it stands to reason that Massachusetts? experience with healthcare reform provides an idea of what is in store for the country under the federal law.?

    • lineholder

      The primary care doctor shortage is one reason why costs are staying high. All states are likely to run into this, not just Massachusetts. We don’t have enough primary care docs to meet demand as it is, much less to meet the requirements for preventive care and maintain the level of continuity in care that would be required for the program to succeed. So folks end up going to the ER.

      I read an article not long ago stating that the Massachusetts health care system had pinned high hopes for costs containment on utilization of accountable care organizations (ACOs) but this hadn’t worked out well.

      • izoneguy

        Since liberals will never learn – lets make sure they don’t stay in control.
        I don’t even want to give them a ride.

        • lineholder

          I was really glad to see this post. I know that most of us as conservatives would prefer to wait and go after full repeal. For the most part, I’m in agreement with that. But as I mentioned in another post, as someone who works in a health care related field…we need to keep a close eye on how this situation unfolds, because some of the rulings coming out of DHHS could do a lot of economic damage very quickly.

          It may just end up being necessary trying to go after repeal of some parts of PPACA, just to slow things down and keep the damage to a minimum.

          Ive just found it comforting to see that folks are keeping an open mind on this, so I thank you for it.

          • lineholder

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          • http://teapartisan.wordpress.com Loren Heal

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  • http://teapartisan.wordpress.com Loren Heal

    When the people begin to see politicians keeping an unpopular policy in place to blame those who put it there, they will be unhappy with everyone, not just those most responsible.

    So by failing to fix the individual mandate, Republicans can be held responsible for crappy Democrat policies.

    • izoneguy

      • lineholder

        are being sponsored by doctors.

        PPACA is horrendous in regards to the negative impact the tax changes are having and will continue to have on small businesses in our economy. But doctors in private practice in specific are getting hit hard on both sides…the payment side (their business income for service rendered paid to them via Medicare and Medicaid) and the tax side (business expenditure).

        When Dr. Burgess says that doctors are having to focus more on survival of their business…that it is truly how it is, and a lot of them won’t survive.

        It may not be possible to get PPACA repealed, but we might find a way to slow it down. I hope we can.

        Also, in regards to what Dr. Burgess says about the public forgetting about PPACA, we need to keep putting this issue out there. Here’s a fairly good article that shows the impact that PPACA has had on Obama’s polling numbers.
        http://www.weeklystandard.com/blogs/obamacare-source-obama-s-approval-woes_577376.html