The Perils Of The Mandate Issue

The Democrats are facing a new political land mine next fall, and it appears that many Obama supporters fail to appreciate the danger. The Obama administration has decided to fast track the individual mandate  so that its Constitutionality will be decided by the Supreme Court next year. Looking at the arguments in favor of this strategy in the linked article,it would certainly be better for supporters of the mandate to have the case argued by the Obama administration as opposed to a Republican administration should Obama be defeated, but the prominence of this issue can be harmful to Obama’s reelection chances.

Election Law Blog has another argument which has been widely repeated today, seeing it as favorable for Obama whether or not they rule that the individual mandate is constitutional.

If the Court strikes down the law, Obama makes more of an issue of a Court out of control (think FDR) during the 2012 campaign (something I suggested in this Slate piece).  If the Court upholds the law, this takes some of the wind out of the argument likely to come from the Republican presidential nominee that the health care law is unconstitutional.  No lose before the election.  Sometimes, you can win by losing before the Roberts Court.

The problem is that mandates will now be a major issue for Republicans to talk about going into the 2012 election, and it is possible that their consideration of the issue could be postponed until next fall. Obama needs to sell Americans on the benefits which they will receive in the future from the Affordable Care Act, but arguments over the mandate will dominate the discussion. Win or lose, this will fire up the conservatives and also impact moderates who backed Obama in 2008. If the court rules in Obama’s favor, those who object to the mandate will still object. If the court rules against him, this only strengthens the ridiculous claims from the right that Obama is pushing far left ideas. Only those who already support the Democrats will be swayed by the argument that the Roberts court is out of control if they rule against the mandate.

Unfortunately many liberals fail to understand the visceral opposition which Americans have to being told what to do. Obama realized this during his primary battle with Hillary Clinton when he opposed the mandate. Unfortunately, while actual legislation was being written Obama appears to have forgotten the political problems with the mandate. Health care reform is necessary, and the mandate might be the easiest way to get around the free-rider problem, but there are other ways. We could have open enrollment periods like the voluntary Medicare Part D program, with those who purchasing outside of such open enrollment periods being subject to the old insurance company rules. There could be higher premiums for those who sign up later, as is also done with Medicare Part D, to make up for the premiums not paid into the system when the individual was younger and healthier. There could be financial penalties, possibly enforced by the IRS, upon those who cost the government money by seeking health care coverage after failing to purchase insurance to compensate for this cost to society. Bankruptcy laws could be changed so that people who declined insurance when available cannot easily eliminate debts for health care.

The end result would be the same–most but not all would obtain health insurance. The difference politically would be tremendous. Republicans understand this and, as is generally the case, will come out ahead politically even when they are generally wrong on health care policy. The irony is that mandates are an old Republican idea which they only recently abandoned in order to use the issue against Obama. The Democrats should have known better than to adopt this old Republican idea.