Published September 26, 2011
Obamacare’s individual mandate—requiring that all Americans purchase government-approved health insurance beginning in 2014—has always been the law’s most vulnerable provision. It is incredibly unpopular, and not just among conservatives. Polls consistently show that a large majority of the electorate opposes it, including a good portion of registered Democrats.
It is not hard to see why. Conservatives worry that the mandate, which compels all Americans to buy a particular product whether they want to or not, involves an unprecedented assertion of federal power. Many middle-of-the-road voters don’t trust the federal government to do anything well, much less decide for one and all the kind of health insurance everyone must purchase.
And liberals can see that the provision creates a guaranteed marketplace for precisely the private health insurers that the president has spent so much time demonizing as greedy, profit-hungry, and patient-abusing miscreants. The president could have used the heavily Democratic Congress of 2009 and 2010 to push through any number of items on the liberal wish list. But he chose to deplete his entire political capital securing a permanent, guaranteed customer base for shareholder-owned private health insurance companies. Ironic indeed.
The mandate is not just politically vulnerable. In mid-2010, when conservative legal experts began marshalling the forces necessary to mount a serious constitutional challenge to the law, many liberals openly mocked the idea that any aspect of Obamacare was vulnerable to litigation. They no longer do so. In August, the Eleventh U.S. Circuit Court of Appeals ruled in a 2-to-1 decision that the individual mandate is an unconstitutional congressional power grab. That decision has made it all but certain that the Supreme Court will take up the case.
Although these legal developments are encouraging, there remains the risk that conservatives will put all of their eggs in the Supreme Court basket. That would be a bad idea. There’s no telling where Justice Anthony Kennedy will come down on the question of the individual mandate, and other surprises from the Court are certainly possible. Moreover, even if the Supreme Court were to strike down the mandate, much of the rest of the law would almost certainly remain in effect. That’s unacceptable. Obamacare without the mandate is nearly as bad as Obamacare with it.
In the end, the fate of Obamacare will almost certainly be decided in the political and legislative arena, not the courts, and the 2012 election is likely to be the decisive battle in that regard. Keeping this in mind, Republicans and conservatives should be doing all they can to make the 2012 election another referendum on the damage Obamacare will do to the American economy and health system.
To make that happen, they need to resurrect Obamacare as an issue in the legislative process. Last January, as one of its first acts, the Republican House passed a full repeal bill, sending a strong signal to the voters who returned them to power. Not surprisingly, repeal failed in the Senate. In the months since that original vote, however, the issue has fallen off the public radar. House committees have held useful hearings, and conducted useful investigations, but the issue hasn’t gotten much attention because there has been no high-profile political fight to force additional press coverage.
That would change if House Republicans started bringing up repeal provisions, one by one, beginning with the individual mandate. Yes, the mandate is under review in the courts, and could very well go by the wayside even without legislative repeal. But that does not mean it can’t also be targeted by Congress. Indeed, a legal challenge and a legislative challenge might reinforce one another, as justices who see strong political opposition to a provision could be more likely to throw it out.
Bringing the individual mandate up for repeal would also force an incredibly difficult vote for Obamacare’s apologists. The vast majority of voters oppose the health care overhaul, and the Congressional Budget Office says repeal would reduce federal spending and budget deficits by more than $200 billion over a decade. Democrats who defend requiring Americans to pay higher premiums for a product they don’t want do so at their peril.
Nor should the House stop there. Republicans could also bring up a bill to repeal the Independent Payment Advisory Board. The IPAB—an unelected and unaccountable group of 15 individuals charged with implementing deep cuts in Medicare—is the epitome of Obama’s governing philosophy: a technocratic, know-it-all body, handing down decisions that can’t be appealed by ordinary citizens. IPAB will infuriate voters the more they learn about it, and Republicans can help in the education process by voting to repeal it. Similar tactics should be pursued with regard to the Medicare cuts and the dysfunctional long-term care entitlement program contained in Obamacare.
Some worry that targeting individual provisions for repeal in this manner might succeed in killing the most odious parts of Obamacare, thereby making the rest of the law more palatable to the electorate. But that shouldn’t be a concern. It is highly unlikely that legislation targeting Obamacare will make it through the Democratic Senate. Even if it does, President Obama will almost certainly veto anything that strikes at the heart of his signature initiative.
Bringing up for consideration legislation that targets the individual mandate and other provisions is far more likely to have the intended effect of forcing Obamacare’s apologists to defend even its most unpopular features. And that is exactly what the GOP should be trying to do as November 2012 approaches.
James C. Capretta is a fellow at the Ethics and Public Policy Center. He was an associate director at the Office of Management and Budget from 2001 to 2004.