Even before health-care reform became law, protesters such as these in Grand Junction, Colo., were voicing their dissent.
Associated Press Enlarge
WASHINGTON — As Barack Obama battled Hillary Clinton over health care during the Democratic presidential primaries of 2008, he was adamant about one thing: Americans, he insisted, should not be required to buy health insurance.
“If things were that easy,” Mr. Obama told the talk show host Ellen DeGeneres in February of that year, “I could mandate everybody to buy a house, and that would solve the problem of homelessness. It doesn’t.”
Now, as President, Mr. Obama may wish he had stuck to those words. On Monday, the Supreme Court agreed to take up a constitutional challenge to his landmark health-care bill, and a decision could come in the midst of Mr. Obama’s 2012 re-election campaign.
At the heart of the challenge is “the mandate” — a provision requiring nearly all Americans to buy coverage or pay a penalty — that he opposed as a candidate. If it is struck down, much of his signature legislative achievement could fall with it in a decision that would undoubtedly be construed as a rebuke to the President.
Polls show the mandate is by far the most unpopular provision of the 2010 bill, and now Mr. Obama, who ultimately embraced the idea, is in the awkward position of defending something he once rejected.
“I think his political instincts were right,” said Paul Starr, a health-policy expert at Princeton University who argues it is possible to expand coverage by other means. “I think he saw that there could be a backlash against a mandate and that there needed to be some other kind of approach. So in a way, I’m sorry he didn’t stick to his original position.”
The theory behind the mandate, according to its proponents, is this: Requiring coverage brings both sick and healthy people into the pool of those insured, which is essential because premiums paid by the healthy offset the cost of covering the sick. Otherwise, healthy people wait until they are ill to buy insurance, which leads to what policy analysts call a “death spiral” in which premiums skyrocket.
As a candidate, Mr. Obama did favor requiring all children to have insurance. Once he took office, his top aides began examining other options, said Ezekiel Emanuel, a former health-policy adviser to Mr. Obama. The aides looked to Massachusetts, which has a mandate, and health laws in other states that do not. They considered voluntary incentives to get healthy people to enroll. Their internal modeling, Mr. Emanuel said, showed that a mandate would extend coverage to 32 million uninsured people. Without such a requirement, he said, the administration estimated it could cover 16 million people at three-fourths the cost of covering the 32 million. Mr. Obama reversed himself.
“I don’t think it was a slam-dunk,” said Mr. Emanuel, now a vice provost at the University of Pennsylvania. “The President did take very seriously his reputation for following what he said, so he was very reluctant to change his opinion unless he was very convinced,” Mr. Emanuel said.
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 could not afford 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 an “individual mandate” as an alternative to the “employer mandate” in President Bill Clinton’s health plan.
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 52 percent support 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 Obama Administration insists that if the mandate falls, so does the provision on pre-existing conditions. “The mandate,” said Jonathan Gruber, a health economist at the Massachusetts Institute of Technology who has advised the administration, “is the spinach you need to get the chocolate you want.”
But not all economists agree. Some say the government has other ways to make sure enough healthy people buy insurance and offset the cost of the sick. One option is “auto enrollment,” in which the government would automatically enroll citizens in insurance plans but give them the chance to opt out. Mr. Starr, the Princeton professor, who helped draft the Clinton health bill, proposes a system of penalties and incentives to get healthy people to enroll. For instance, people could be given a choice: Sign up now, or wait another five years.
Of the four appeals courts that have weighed the constitutionality of the Patient Protection and Affordable Care Act, only one has struck it down.
Mr. Starr says a finding that the mandate is unconstitutional would be “a severe blow” to the act and the Obama presidency.
But Drew Altman, the president of the Kaiser Family Foundation, said health policy rarely affected election outcomes. “If any health-care issue is a voting issue,” Mr. Altman said, “it’s not health reform, it’s Medicare.”
Some experts say that if the bill had imposed a tax on Americans who did not have insurance — rather than requiring them to buy a policy — the entire legal fight might have been avoided.
“It’s a little bit surprising that the constitutional arguments weren’t out there sooner,” said Mark McClellan, who ran Medicare under President George W. Bush. “They could have written it in a way that would have better overcome the constitutional challenges.”
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