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Democrats Look Past The Mandate, To The Left

They've been quietly eyeing alternatives for more than a year. Will that give the Supreme Court an out?

Last updated on July 3, 2018, at 11:34 a.m. ET

Posted on April 1, 2012, at 9:42 p.m. ET

Doctors and medical professionals rallied in support of recent health care reform legislation outside the US Supreme Court last week.

Doctors and medical professionals rallied in support of recent health care reform legislation outside the US Supreme Court last week.

The first rule of alternatives to the individual mandate is that you don’t talk about alternatives to the individual mandate.

The Obama White House and its closest allies have made publicly clear that they see no good alternative, or no alternative at all, to a provision the Supreme Court cast into serious doubt last week. They have “no contingency plan,” White House spokesman Josh Earnest said last week. That hard line rests on political and legal logic: The White House doesn’t want to give the impression to a swing-voting justice that the mandate could be dropped without sweeping policy consequences.

But there have always been those on the left — Barack Obama was once one of them — who disliked the idea of making people buy health care, and who believed the main problem in the health care industry wasn’t people who weren’t forced to buy insurance, but those who couldn’t afford it. And even as Democrats have publicly rejected alternatives, the year has seen growing murmurs — whether co-ordinated or not — that the plan could proceed without the mandate, and could even migrate toward the more progressive vision of government-sponsored universal health care that a younger, more liberal Obama supported in Chicago.

If the court issues a broad ruling striking down ObamaCare, “There will be a reconsideration of the whole approach,” said Paul Starr, a Democratic critic of the mandate. “Many liberals are going to say we have to extend Medicare.”

In fact, some Democrats have been fumbling toward an alternative since soon after the mandate passed, with solutions that range from technical tweaks to major reworkings of a provision that’s meant to control premiums for everyone by ensuring that the young and healthy who cost the system little will still pay in to the pool.

As early as February of 2011, moderate Senators facing tough re-elections began looking for alternatives to the unpopular measure.

“Take the word ‘shall’ out and say ‘if you don’t it’s really gonna cost you a bundle,’” suggested Missouri Democrat Claire McCaskill that month, earning a rebuke from the liberal ThinkProgress.

The New York Times suggested that summer that the mandate had become a chip in attempts to strike a grand bargain between House Republicans and the White House, and the Lewin Group, an insurer-owned firm whose work was often cited in the health care debate, suggested in a study that November that the mandate “might not be essential to the act’s successful implementation.”

Then, this January, Health and Human Services Secretary Kathleen Sebelius said the legislation could survive the mandate being severed.

“I think we keep going,” she said. “We find ways to encourage people to become enrolled and become insured.”

A study last month by RAND Health bolstered the case, finding “only modest evidence of adverse selection with the mandate is eliminated.”

The sum of this may well be a message to the Justices the opposite of what the White House intended: A quiet confidence that the system can carry on.

Democrats “certainly aren't articulating that they have a contingency plan, but that doesn't mean they don't,” said Avik Roy, a senior fellow at the conservative Manhattan Institute, who added that many Democrats had only recently begun to reckon with the possibility of bad news from the Supreme Court.

Roy predicted that a technocratic alternative floated by Starr, a former Clinton aide, to replace the mandate with a formal chance to opt out “will gain a lot of currency among Democrats.”

"It's the natural idea to come up, because it will patch up the hole that the individual mandate leaves,” he said.

Starr, however, said he’d had no contact with the White House on his plan, which would replace the mandate with a requirement that people formally opt out of health care on their tax returns.

In the case of a broad rejection of ObamaCare, and not just of the mandate, Starr told BuzzFeed he suspects his party would be tempted to react with a more ambitious, more progressive alternative.

“It will delegitimize the whole idea of any kind of mandate, even a mandate that the court would've approved,” he said.

Ironically, the mandate that has become the plan’s central vulnerability is not as strong — and not as likely to control costs — as the one originally planned.

Senator Chuck Schumer, ever sensitive to a squeezed middle class, saw the same risks Obama had played on during the campaign, and in the fall of 2009 insisted with Senator Olympia Snowe, that it be weakened.

The two “decided to give some breathing room to families faced with the uneasy choice of buying insurance they can't afford or paying a stiff penalty that they also can't afford,” he said at the time of his rule, which exempts Americans from having to buy insurance if the cost of available plans is more than 8% of their income.

And if the mandate won’t clamp down as hard on costs as its backers hoped, it also didn’t prove the political elixir some still believe it was, buying the myth is that the mandate effectively bought off the insurance industry.

The mandate “explains why the big insurers, while opposing the final legislation, never attacked it as vigorously as they did Bill Clinton’s ill-fated reform effort,” New York Times columnist Ross Douthat wrote this week.

Perhaps a stronger mandate would have soothed the insurers, providing them a guarantee of a big new market, but ObamaCare’s didn’t, and if they were quieter in that opposition, that was a tactical choice driven by the intense attacks on their industry.

In fact, Bloomberg News reported that the main insurance lobby, AHIP, quietly gave $86.2 million to the U.S. Chamber of Commerce for a slashing campaign against the plan. The contribution only became public the next fall.

Now, analysts who follow the insurance industry say it stands to profit if the law is upheld or struck down in full, but would suffer if the justices sever the mandate.

And for Democrats, the politics remain unappealing.

“The people that hate the individual mandate hate the bill. Today they’ll say, “Let’s get rid of the individual mandate,’ and tomorrow they’ll say, ‘Let’s get rid of the whole thing,” said Douglas Usher, a pollster at Purple Strategies, whose clients include the insurance industry. “Every policy that makes Republicans passionate about being Republicans is bottled up in the health law. On the Democratic side, they favor, it they like it, but they don’t love it.”

Obama, faced with a rejection in the court, could press ahead with a technical fix. Or, knowing that Republicans hated even his attempts at moderation, he could look to energize Democrats with the sort of broader government-backed plan, in the form of a Medicare expansion, that would rally his own supporters.