Obamacare: a compromise on the individual mandate
Most experts think that the Supreme Court will strike down the individual mandate portion of Obamacare, leaving the rest of the law intact. But if that happens, insurance companies will claim they can't insure pre-existing conditions. Is there a compromise?
Robert is chancellor’s professor of public policy at the University of California at Berkeley. He has served in three national administrations, most recently as secretary of labor under President Clinton. Time Magazine named him one of the 10 most effective cabinet secretaries of the last century. He has written 13 books, including “The Work of Nations,” his latest best-seller “Aftershock: The Next Economy and America’s Future," and a new e-book, “Beyond Outrage.” His new movie, "Inequality for All," is available on Netflix. He is also a founding editor of the American Prospect magazine and chairman of Common Cause.
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Most high-court observers think it will strike down the individual mandate in the Act that requires almost everyone to buy health insurance, as violating the Commerce Clause of the Constitution — but will leave the rest of the new healthcare law intact.
But the individual mandate is so essential to spreading the risk and cost of health care over the whole population, including younger and healthier people, that some analysts believe a Court decision that nixes the mandate will effectively spell the end of the Act anyway.
Yet it could have exactly the opposite effect. If the Court strikes down the individual mandate, health insurance company lobbyists and executives will swarm Capitol Hill seeking to have the Act amended to remove the requirement that they insure people with pre-existing medical conditions.They’ll argue that without the mandate they can’t afford to cover pre-existing conditions.
But the requirement to cover pre-existing conditions has proven to be so popular with the public that Congress will be reluctant to scrap it.
This opens the way to a political bargain. Insurers might be let off the hook, for example, only if they support allowing every American, including those with pre-existing conditions, to choose Medicare, or something very much like Medicare. In effect, what was known during the debate over the bill as the “public option.”
So in striking down the least popular part of Obamacare - the individual mandate - the Court will inevitably bring into question one of its most popular parts - coverage of pre-existing conditions. And in so doing, open alternative ways to maintain that coverage - including ideas, like the public option, that were rejected in favor of the mandate.
The fact is, there’s enough the public likes about Obamacare that if the Court strikes down the individual mandate that won’t be the end. It will just be the end of the first round.
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