The Affordable Care Act Mandate: It Comes Down to Optics

Early in the course of the Disease Management Care Blog marriage, the spouse would target an important non-optional purchase for the DMCB spawn and tell her husband to hand over the cash. Provoked by a loss of control and a spike in circulating blood testosterone levels, the annoyed DMCB would resist. After listening to its sputtering claims that it was better suited to evaluating the merits of said purchase, the shrewd spouse relented.

After listening to very smart dueling lawyers (Simon Lazarus of the National Senior Citizens Law Center and Ilya Shapiro of CATO) at the AMA National Advocacy Conference, the DMCB decided that a key part of the debate over the individual mandate is the tangled DMCB-spouse-spawn purchasing relationship writ large.

The debate over the mandate (which, by the way, has been supported by the AMA for years) comes down to the "optics" on whether there is a difference between:

a) the spouse (government) collecting the 'hand-overed cash' (taxes) to make a purchase necessary for DMCB spawn upkeep (health care insurance),

versus

b) the DMCB (a citizen) being obliged (mandated) to spend its own cash to make the necessary spawn-upkeep purchase (health care insurance).

Supporters of the mandate point out that the Feds can use payroll taxes to force us to purchase Social Security. It can also use its taxation powers to purchase Medicare Advantage on our behalf. The only difference in the mandate scenario is that the Feds-spouse are taking themselves out of the middle. In the end, it's the same outcome.

Opponents of the mandate make an important distinction between it and taxes. While taxes are as certain as death and can be used by the spouse-government to buy anything on our behalf - examples include Fannie Mae (mortgages), GM (cars) and AIG (insurance) - it shouldn't necessarily be able to oblige DMCB-citizens to buy the stock of Fannie Mae, GM or AIG, even though that's what is happening anyway. It also can't require citizens to buy their mortgages, cars or insurance products either.

Supporters say a key distinction is that health care is unlike mortgages, cars or insurance because it's not optional. Opponents retort neither is food and shelter.

And so it goes.

The DMCB has previously examined the Affordable Care Act's (ACA) "individual responsibility" and "penalty" language (as an aside, to its knowledge, the word "mandate" never appears in the Act itself). It recalls a craven Congress wanted to avoid the political atmospherics of a "tax" while simultaneously supporting a private health insurance market. It turns out that the legislative cure may have been worse than the disease.

As an aside, during Q&A, the DMCB asked about fast-tracking the ACA-mandate legal challenges to the Supreme Court. The panel pointed out that the appeals process will allow both sides to sharpen their legal arguments, enable a better review by the Supremes and, ironically, prompt Congress to start thinking about "Plan B." Good points but, then again, they're lawyers.

By the way, as the years have passed, the DMCB just hands over the money.

The Insurance Mandate, State Legislatures, Regional Opposition and the Specter of Inviting Civil Disobedience

Adding to the the drama of health reform, the Virginia General Assembly has passed its own legislation that seeks to nullify the proposed Federal health insurance mandate. That makes this New England Journal of Medicine article on the States' prospects timely reading.

Readers won't be surprised that author Timothy Jost dismisses this as right wing-funded and politically motivated posturing. He also points out that it is also not without precedent. Past attempts to emasculate Federal law include outlawing school desegregation and decreasing access to Medicaid funding for abortion after rape and incest. Mr. Jost says this manuvering didn’t work then, and he doubts it will work now. As an aside, however, he cautions his doubt is not ironclad, because he describes an insurance mandate as “constitutionally vulnerable.” Supreme Court, here we come.

But it’s his summary of the mandate's two other downsides that make for the really interesting reading:

1. Resistance in 34 State legislatures is a telling symptom of the depth of popular opposition to health reform. While a widely followed metric is whether a national majority of Americans support or oppose the plan, the national patchwork of simultaneous disdain and support bodes poorly for the ultimate success for this piece of social legislation and the ascendant governmental activism behind it.

2. Even though the insurance mandate has enforcement provisions, they’re ultimately based on the behavioral economics of voluntary proactive compliance, jazzed up with some "or else" tax penalties - which aren't that large anyway. This good intention may run head first into what could become an open invitation to civil disobedience akin to the spectacle of the Federal enforcement of its marijuana laws. What will be the effect of passing a law that, whatever its merits, leads to an significant proportion of the U.S. population being in technical violation of that law?

The DMCB traveled on Route 81 today. On one of the overpasses, there was a group of 5 people waving to the traffic below and waving an American and the telltale Do Not Tread On Me flag.