Obamacare isn’t dead, but the NYT is already writing its obituary. Two years ago, governors who filed lawsuits challenging the healthcare bill’s constitutionality were dismissed as Red State extremists and ideologues with names like “Butch” Otter. Hadn’t they read the Commerce Clause, the bien pensant press would ask. What kind of Flat Earthers were these people, anyway?Today, not even the White House seems sure that its healthcare reform bill is constitutional.Until the Court rules — something of a throw of the dice — nobody really knows what will happen to the health care law. (At the time of the ratification debates over the Constitution, this feature that important laws would be passed and would operate for some time before people knew whether they were in fact legal was considered one of the Constitution’s weak spots.)As they sweat out the months before the Court issues its decision, the healthcare experts who drafted the bill don’t know if it’s dead, but revealingly enough they are already talking about what they should have done differently.President Obama campaigned against the individual mandate at the heart of the controversy over constitutionality, and the decision to embrace it was not a natural one for him. The second guessing is well under way:
Health insurers also insisted on a mandate, as did the Democrats who controlled Congress. In July 2009, Mr. Obama told CBS News that he was “now in favor of some sort of individual mandate as long as there’s a hardship exemption” for people who truly could not afford to buy insurance.
While the White House may have been prepared for the public unhappiness over the provision, it appears to have been caught off guard by the constitutional challenge — in part because Obama advisers regarded the mandate as a conservative notion. The idea gained currency in the early 1990s, when some Republicans proposed their own version of an “individual mandate” as an alternative to the “employer mandate” in President Bill Clinton’s health plan.
Polls show that the individual mandate is unpopular. The Kaiser Family Foundation, which tracks public opinion on the health measure, reported in March that 74 percent of Americans would keep, rather than repeal, the law’s provision barring insurers from discriminating against people with pre-existing conditions. But only 27 percent would keep the mandate. (A CNN poll released Monday found that 52 percent supported the mandate, up from 44 percent in June, though unlike Kaiser, CNN did not explain that failure to comply would result in a fine.)
The mandate is the lynchpin in the system; its role is to make insurance affordable. Unless millions of people who don’t think they need insurance are paying into the system, those who know they need it (mostly, the sick) will be faced with unpayable premiums. Take the mandate out, and even if the rest of the bill passes Constitutional muster, we are looking at a fiscal train wreck.There are ways around this. Under the Constitution, Congress has very wide powers of taxation; presumably one could simply raise income taxes on all Americans, including the poor, and offer tax rebates for those who purchase health insurance. This would if anything even more unpopular than the current law, but the constitutional case would be much easier to make. Practically speaking, getting new laws passed now is probably beyond the administration’s power — at least as long as the GOP has a grip on the House and enough votes in the Senate to block cloture.
If the Supreme Court decision goes against the individual mandate, the progressive imagination will be haunted for decades by what historians will consider one of the great legislative and political blunders of all time. A rare perfect storm of political forces brought liberals the most power they have had since 1934 and 1964. If history records that this generation’s progressive leaders threw that moment of power away by an easily correctable mistake in legislative draftmanship, Nancy Pelosi and Harry Reid will be forever remembered as the greatest legislative bunglers in American history. College students in generations yet unborn will rub their eyes in disbelief when they get to this part of the story.(Indeed, when we consider what future students will think about an era that includes the Lewinsky affair, the Y2K and bird flu panics, the WMD mistake in Iraq, and then, if the Court rules against it, the healthcare fiasco, it is easy to see why the Baby Boom is looking more and more like a generation of clowns.)I am less worried about the bitter mockery of future generations, however, than I am about what is in the rest of the bill. Even if the Court upholds it, it is clear that sheer arrogance and legislative incompetence led the architects of this massive reform to endanger their own handiwork by clumsy design.An inescapable question unavoidably follows. If the authors of this historic reform were that careless and clueless about the central pillar of their plan, what else did they get wrong? What other incompetencies and tomfooleries lie hidden in the depths of this bill? How many perverse and unintended consequences will emerge as the consequences of this law unfold? What clever lobbyists managed to get provisions embedded in the text that will make healthcare more expensive and less effective than it could and should have been?Writing a bill that passes constitutional muster should be easy in a Congress so rich in lawyers and legislation writers. Writing a bill that successfully improves American healthcare delivery while controlling costs, on the other hand, is hard. Very, very hard.If they did so poorly at the easy part of their task, the part where we can actually measure and monitor their success, what kind of mess have they made of the hard and murky parts that nobody, including the authors of the bill, really understands?Some critics of the healthcare bill act as if there were some simple solutions that the Obamacare authors willfully disregarded. That’s unfortunately far from true; healthcare is almost infinitely complicated. (Disclosure: members of the Mead clan have been burying patients since the 19th century and Drs. Allen and Philip carry the family tradition today. It isn’t clear whether the fifth generation will send a representative into medicine, but I’ve been hearing about healthcare and its complexities since my grandfather took me on his rounds.) Every patient presents individual problems; every practice, every hospital has its own unique characteristics. No healthcare system is going to be completely satisfactory or solve every problem.There are some real strengths in the current health care law, and Peter Orszag makes a good case for the benefits of the law in Foreign Affairs. But the dubious mandate at the core of the law gives one pause; from a policy standpoint it might not be a bad thing if the Supremes send this one back to Capitol Hill.