Sunday, March 06, 2011
The individual mandate is the wrong debate
Christian Trejbal
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From the RoundTable blog
Partisans tout every law professor’s analysis or judge’s opinion with which they agree. They hold each up as the definitive, irrefutable proof that confirms they were right all along.
They keep score, too, as if the number of judges were more important than quality analysis and sound logic.
The tally stands at three judges in favor of the individual mandate to two opposed. At best, these early decisions are the minor leagues, almost irrelevant to who will win the eventual World Series in the Supreme Court. Only nine judges are really in play, and maybe only one will matter — Justice Anthony Kennedy.
Lost in the constitutional dispute is a much more interesting and important question: Whether the individual mandate is even a good idea.
It is not.
Democrats, who are now the most ardent supporters of the mandate, once knew it was a bad idea and opposed it. Even President Obama was against it as recently as his 2008 presidential campaign.
Republicans, who now fight it, not so long ago saw it as an important element of reform. GOP presidential primary darling Mitt Romney incorporated it into Massachusetts health care reforms while governor.
Supporters — now Democrats, then Republicans — argue the mandate is necessary to preserve the fiscal solvency of insurance companies. The Affordable Care Act requires insurers to accept all customers. If there were no mandate, people would wait to buy insurance until they needed it, undermining the shared risk pool that makes insurance work.
Democrats embraced the mandate in part as a sop to Republicans. They hoped injecting a GOP reform into the act might earn a few votes. They underestimated the monolithic Republican desire to see the Obama administration fail at any cost.
It was also a sop to insurance companies, a promise to protect profits at the expense of the American people.
Many provisions of health care reform have little to do with health care itself and everything to do with ending chronic abuses by insurers.
Under the act, insurers must allow young adults to remain on their parents’ plans longer, accept customers regardless of pre-existing conditions, stop canceling policies based on technicalities, and remove lifetime and annual benefits caps. The bill also gives consumers the right to appeal insurance company decisions and creates an external review process.
Calling it the Affordable Care Act was generous. “Health Insurers Reform and Preservation Act” would have been more accurate.
Meanwhile, the debate over the constitutionality of the individual mandate serves as a diversion from the real issue. The more fruitful discussion we should be having is whether the private insurer model works at all.
Does anyone honestly believe clever insurers will not find new loopholes and tricks to maximize cash flow and deny payments? Labyrinthine practices that can drive the most ardent consumer mad will not disappear, only be rearranged.
The Affordable Care Act and the individual mandate in particular are predicated on the notion that insurance companies are part of the solution to the nation’s health care crisis. They are, in fact, part of the problem. If they need an individual mandate in order to survive without their worst abuses, perhaps they should be allowed to die. Call it a death panel for corporate welfare.
Time remains to fix this. Many of the provisions of the act, including the mandate, do not take effect until 2014. Congress and the nation can still have the grown-up discussion that considers a public insurance option or, better, a single-payer, universal coverage system. Either would return the focus to health care, not generating profits for insurers.
That conversation would be difficult. It would require Americans and their leaders to confront and try to understand complex issues.
Alas, it is easier just to scream at each other about the individual mandate.
