Repealing the Individual Mandate

In the fight to repeal the Patient Protection and Affordable Care Act, more commonly known as ObamaCare, activists and legislators are faced with a basic strategic decision. Should we try to repeal or have nullified individual components of the law, or should we leave even the worst parts in place while we try to repeal the whole thing?

I have always believed in leaving the law intact, in all its unfettered malfeasance, as a way to remind American citizens, legislators, and courts just how far we have fallen. But the time has come for that strategy to change. We should start the repeal process with one of the worst features at the heart of the PPACA, the mandate that individuals buy health insurance.

Avik S. Roy is a well-regarded expert in free market health care policy. Roy opposes repealing the individual mandate by itself, arguing at NRO that doing so would

  • Destabilize the private insurance market, which would
  • Be blamed on Republicans, and
  • Cut the legs from under court challenges to the PPACA.

These are powerful arguments. Allowing the PPACA to go into full effect without the individual mandate would greatly harm the insurance industry. It would eventually lead to an end to private health insurance, as more and more people decide not to take on health insurance until they need to use it.  At the end of that road lies a single-payer system.

That Republicans would take the blame in the media for the mess approaches a tautology.  The only question is whether or the free market itself or its Republican adherents would receive more scorn.

While we pin our hopes for an end to the law on the courts, repealing the individual mandate would leave the Constitution’s defenders such as Virginia Attorney General Ken Cuccinelli struggling for a case. Much of Virginia’s case, as I understand it, is built on Virginia having enacted a state law against forcing an individual to buy health insurance.

Dean Clancy of FreedomWorks writes in response to Roy that rather than destroying the private market, the threat of disruption caused by repealing the mandate would force Congress finally to dismantle the rest of the law. Without the fig leaf of the individual mandate, Democrats could not explain to their base that the law covers everyone — which it never did anyway. A new, more market-friendly Congress could enact more reasonable reforms that would actually accomplish the stated goals of health care reform.

Clancy argues further that the court cases against the PPACA are far from assured of success. Given the legal climate of the past 80 years or so, and the weak, unsteady conservative majority of the current Supreme Court, our judicial system cannot be trusted to strike down even what is to most people a facially unconstitutional law.

But my reasoning is more direct. If President Obama is reelected, we will either have the PPACA or something worse. As with his moves with the FCC and net neutrality, the EPA and cap and trade, and the NLRB, Obama will administratively reconstitute some facsimile of whatever provisions are stripped out of the law.

On the other hand, if Obama is not reelected (and if conservatives take the Senate from Mitch McConnell and Harry Reid), all of the PPACA will be repealed, whether the individual mandate is individually stripped out or not.

And the individual mandate, while unpopular, is not the worst aspect of the law. The employer mandate is far worse.  The mere threat of the employer mandate has been responsible for so much of the damage to small business since the law’s inception.

The employer mandate will continue, absent the individual mandate. The Obama economy will continue to grind America slowly into the ground. Obama will not be reelected.

Or will he? The deciding factor may not be the economy or health policy, but how many conservatives and moderates unhappy with the Obama Miracle actually get out to vote. And that, as we have said many times in these pages, will be determined by how many activists knock on the doors of our neighbors and ask them to vote. To find out more, visit the Precinct Project.

So repealing the individual mandate will have few negative consequences, even for the cynical plotting of power-centered Republican insiders concerned only for their own futures. There is plenty left to dislike in the PPACA, including its most damaging economic effects.

Finally, while leaving the individual mandate in place might make voters turn away from President Obama and the Democrats, voters will see the failure to exercise the power Republicans have been given in defense of liberty as evidence of Republican complicity with Democrats. Why should voters entrust the Republicans with power, when they won’t use it when given the chance and good reason?

More generally, Speaker Boehner and Majority Leader McConnell, there is plenty else to dislike in the Obama agenda. Repealing all of ObamaCare will not by itself cause the economy to recover, not with Obama in office demanding daily that it not do so.  Don’t hesitate to use the power you’ve been given to demand that all of ObamaCare be repealed — the voters will reward you.