Legal Commentary

Should Progressives Defend A Mandate Without A Public Insurance Option?

By Big Tent Democrat

In a piece that provides broadstroke background on the legal issue surrounding the challenges to the health bill, Jonathan Cohn spends the lion's share oh his argument on the individual mandate.

Like Cohn, I find the arguments for the unconstitutionality of the mandate "unpersuasive," to say the least. But I wonder if this is a fight a progressive wants to have. Cohn asks:

What would an unfavorable ruling mean for the future of health care in the United States? The best case scenario, at least for those of us who support the Affordable Care Act, is that the government finds another way to impose the mandate or enact a modification that achieves close to the same ends.

But it’s unclear how well such measures would work. And any solution would require the enactment of new legislation, something that might be difficult in the political aftermath of an unfavorable Supreme Court decision. In the absence of remedial action, the Affordable Care Act could falter, the regulatory and financing apparatus coming apart as premiums rose and insurers chafed under requirements they could not realistically meet. It’s easy to imagine a scenario where, rather than deal with the mess, a chastened Congress throws up its hands and decides just to repeal, or at least severely claw back, the entire universal coverage plan.

This is "unpersuasive" to me as well. If "universality" is dependent on a requirement to purchase private health insurance, rather than the offer of public health insurance (this is where the public option/Medicare Buy-In comes in), then there is something wrong with your mousetrap, and there always was. The scenarios Cohn finds "easy to imagine" were easy to imagine prior to passage of the health bill. That is why some of us argued for "autoenrollment" in a public insurance program (in the manner that Medicare works) as the universality mechanism instead of a mandate. Cohn continues:

On the left, some have wondered whether this might finally create a groundswell for single-payer–style health insurance—which, like Medicare, would clearly fall under the government’s taxing power and therefore be constitutionally invulnerable. That’s possible. But it’s just as possible that the country would simply give up on universal health care, at least for now, effectively deciding that guaranteeing affordable access to medical care was something the United States, alone among developed countries, could not do.

No, that really does not seem "just as possible." For progressives, at least those who believe the failure to include a public insurance program in the health bill was a terrible mistake, there is little incentive to support the mandate as is.

Remember that the truly progressive part of the bill is not in any way connected to the mandate - the expansion of Medicaid coverage. For some of us, the loss of the exchanges (because it won't work without a mandate) is no loss at all.

In addition, the loss of the mandate does not threaten the regulatory parts of the health bill.

The reality is the only group threatened by the loss of the mandate is the insurance companies (and the wonks who like the exchanges.) And in the end, that is what will save the individual mandate. The Supreme Court won't hurt the insurance companies.

Speaking for me only

Full post as published by TalkLeft on January 19, 2011 (boomark / email).