osewalrus (osewalrus) wrote,

Why I'm Rooting Against The Mandate

I never liked the mandate to purchase health insurance, and have always suspected it would not fly as a constitutional matter. It's best estimate is that it constitutes a tax that just happens to be paid to private companies. Alternatively, it constitutes an expression of the commerce clause power. To me, this argument was always far more uncertain than defenders of the legislation maintained (and the few precedents usually cited in support readily distinguishable).

For me, the best option was always toss the mandate and keep everything else under the severability clause. This usually invokes a chorus of folks explaining how without the mandate the insurance companies go bankrupt so we must have the mandate. To this my response is: "You have fallen victim to an old incumbent mind trick." The phrase that needs to be inserted before this defense of the mandate is: "keeping everything the same, and ensuring to the insurance companies the same profitability, then . . . ."

So what happens if the Supreme Court eliminates the mandate but retains mostly everything else? Answer: the insurance companies rush back to Congress to get changes in the law. But now, the fun begins in earnest because the dynamic has changed. This again is lost on most folks. "Congress is even more conservative now than it was in 2010, whatever comes out of Congress will be worse than what we have now." Hah! Don't you realize you can, under the right circumstances, get more out of a broken and dysfunctional Congress than you can out of a functioning Congress? It all depends on who is desperate and what the leverage is.

The critical difference is that last time the insurance industry as a whole were fairly united, and a substantial number of interests won by ensuring that nothing passed. To get legislation --especially with Rahm Emmanuel doing his Lionel Hutz impression -- required concessions that served incumbent interests bent on blocking the legislation.

Here, the dynamic is reversed. The insurance companies desperately want something, and must overcome the dysfunction and institutional resistance to get it. Equally powerful interests are not necessarily opposed, but they want other things and want to protect their turf. And even the insurance industry is not united. With things thrown open and everyone eager to act to avert a perceived catastrophe, the myriad of special interests comes out for a destructive feeding frenzy and defensive plays as everyone scrambles.

Is virtue necessarily triumphant? Of course not. There are a million ways for the forces of universal coverage to take a gift like this and blow it. It starts with being beaten in your mind. "Always wait for your opponent to give himself to you," advised Aral Vorkosigan. "Usually, you are in such a rush to give yourself to him you miss your chance." But even the best strategists can run afoul of numerous legislative traps and subsequent implementation. But rarely do you have the other side starting out at such a disadvantage as would be the case if the mandate were struck down.

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