A far right activist judge ruled today that the individual mandate is unconstitutional. From a legal perspective this is probably not very significant. Other judges have already ruled in favor of the mandate, but we cannot be certain what the conservative activist judges on the Supreme Court will do. Until it reaches the Supreme Court this ruling has limited meaning as it does nothing to prevent the implementation of other aspects of health care reform and the mandate doesn’t even take effect until 2014.
While of limited meaning legally, this was a big win for the conservatives in the spin wars. A while back the mandate was widely supported by Republicans but Democrats were divided, with Barack Obama opposing the mandate. Republicans, who concentrated on political gain rather than trying to solve the problem, outsmarted the Democrats by suddenly opposing the mandate and leaving the Democrats to take the blame for this policy.
A mandate does make health care reform simpler by avoiding the free rider problem, but there are many other possible solutions. The problem with the mandate is that it turns health care reform from something being offered by government to help those in need to a an intrusive big government program which is imposed upon all. The failure of many Democrats to understand this is why they have been in the opposition far more often than not over the last few decades.
Having the mandate dominate the news is a tremendous victory for Republicans. Instead of talking about how health care reform will prevent insurance companies from excluding people based upon pre-existing conditions or about subsidies to assist those who cannot afford it to purchase private insurance, the talk will be about the unpopular mandate. Regardless of whether they win in the courts, the political battle is being played on the Republicans new turf.
If the Democrats are smart, they will not fight this decision and will instead concentrate on changes to the health care reform legislation to handle the free rider issue by a different means. Republicans might initially try to interfere, but ultimately the insurance company will realize they are not winning any victories by being required to insure people with pre-existing conditions if there are no disincentives for people to wait until they are sick to purchase insurance.
There was also action related to health care reform in the Senate today which shows how the Republicans are more interested in playing politics than in solving problems–or in helping small business. One of several aspects of the Affordable Care Act which should be changed is the new 1099 requirements imposed upon small business. Republicans have championed this issue when speaking before small business groups. However when it came to a vote today, Republicans stopped Democratic attempts at removing this provision. After all, if the provision is removed, Republicans will lose this issue to attack Democrats with.
