Can Obama's health care law survive without the individual mandate?

Protesters in favor of health care reform demonstrate outside of the Supreme Court in Washington, D.C., March 26, 2012, as a hearing on President Obama's health care legislation began.

/ AP Photo/Jacquelyn Martin

(CBS News) In the 2008 Democratic presidential primary, then-Sen. Barack Obama ran a campaign ad blasting Hillary Clinton's health reform plan for including a so-called "individual mandate." His ad argued the mandate "forces everyone to buy insurance, even if you can't afford it, and you pay a penalty if you don't ... It's not that people don't want health care; it's that they can't afford it."

But after winning the White House, President Obama told Congress a mandate was an essential part of improving the nation's health care system. "Unless everybody does their part, many of the insurance reforms we seek -- especially requiring insurance companies to cover pre-existing conditions -- just can't be achieved," he said.

Today, Mr. Obama's two arguments will play out before the Supreme Court, which could end up striking down the individual mandate as unconstitutional. The court will also consider whether taking down the mandate means bringing down the entire law, or possibly just other portions of it.

Two years after the law's controversial passage, the Supreme Court hearings are putting it back in the spotlight -- potentially giving either Mr. Obama or his political opponents a political advantage this election season. But there's more than politics at stake.

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Mr. Obama's own evolution on the individual mandate illustrates the vigorous debate over whether the government exceeds its bounds by compelling every person to either get insurance or pay a fine. The question of whether the mandate is needed to get most Americans insured and keep health care costs from spiraling out of control is just as pressing -- and just as controversial.

"The crux of the bill is about opening access [to health care] and reducing costs," said Doug Thornell, a Democratic strategist at SKDKnickerbocker who has worked for the campaign arms of Congress. "It's unclear what would happen if the mandate were struck down, what it would mean to those goals."

Central to the bill's goals?

For one thing, the administration is arguing that without the mandate, more popular provisions like "guaranteed issue" and "community rating" won't work. Guaranteed issue, which is nearly twice as popular among the public than the individual mandate, requires health insurers to cover everyone who applies, regardless of pre-existing conditions. Community rating requires insurers to offer plans within the same price range to all customers, regardless of factors like age. Should the Supreme Court strike down the mandate, the Obama administration has asked the court to kill those two provisions as well.

"It's all related," John Rother, CEO of the nonpartisan National Coalition on Health Care, told Hotsheet. "For health reform to work, it has to ensure that when people need health care, they have adequate insurance and the cost of that insurance is affordable by spreading the cost over the population."

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Striking down the mandate, Rother said, "would undermine the overall goal of not only getting more people insured but also of lowering the cost" of health care.

According to various independent studies, the individual mandate alone could be responsible for increasing the number of insured Americans by anywhere from 7.8 million to 24 million. Having millions more insured should mean millions more are paying their fair share -- a brief filed with the Supreme Court by 104 health law professors points out that "In 2008, people without insurance did not pay for 63 percent of their health-care costs."

Reforms without a mandate

If there is such a compelling case to be made for the mandate, one has to wonder why Mr. Obama didn't support it in his first presidential campaign -- or why a handful of politically vulnerable Democrats in early 2011 flinched in the face of the strong backlash to the law.

Sen. Claire McCaskill, a Democrat up for re-election in Missouri this year, told Politico last year it was worth considering "how many new people we can get into the pool with something less than a mandate." She suggested limited enrollment periods with severe financial penalties for not signing up.

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Limited enrollment is just one way to encourage people to sign up for insurance. Other countries control the health insurance market through the tax system, Rother said, but Congress wanted to avoid that route. Another alternative would be requiring consumers to post a bond or go without insurance for a number of years.

While the number of people without insurance would rise by the millions without the mandate, its impact on costs is debatable. The liberal Center for American Progress estimated that insurance premiums would rise by as much as 40 percent without a mandate, but the nonprofit, nonpartisan RAND Corporation estimates premiums would rise just 2.4 percent. Total government spending would increase modestly without the mandate, Rand estimates, though the government's costs per enrollee would be much higher, since those who decided to still purchase insurance would likely be those people who are eligible for subsidies.

If the mandate were scrapped, it's highly unlikely Congress would pass any kind of legislative fix. But Joseph Antos of the conservative American Enterprise Institute said the Health and Human Services Department could mitigate any impact through bureaucratic means, such as relaxing rules surrounding how much of an insurance company's profits must be spent on delivering care (called the "medical loss ratio").

"There will be a wink-wink, and I think eventually HHS will find they need more time to perfect to regulations with respect to the medical loss ratio -- one of the things that would stop insurers from doing much marketing," Antos said. "There are a whole bunch of other things they could do to keep the insurance market from collapsing."

Even if Supreme Court upheld the mandate, some question whether it's designed well enough to have any real impact. The fine for failing to purchase insurance will be phased in and will reach $695 per individual and $2,085 per family by 2016. That's an arguably marginal amount, compared to the cost of purchasing insurance.

In its first year, the fine is only $95. "It's like a parking ticket," warned Rother. "My concern is it won't be enough of an incentive to get people health insurance."

Antos contended that the IRS won't really enforce the law, leaving those fines uncollected. "A mandate without enforcement is not going to have any real effect," he said. "People are smart enough to figure it out."

35 Photos

Scenes from the Supreme Court health care hearings

[rightbehind]

Looks like roberts has made himself king of the United States. He is stomping on the legislative branch of our government.

[ike5266]

You obviously have a complete disdain for that pesky little document otherwise known as the United States Constitution. Perhaps you would do better living in a communist nation where individuals have no rights or freedoms.

[occupy_cbs]

Exclusive Poll: Americans Think Politics Will Influence Justices' Health Care Votes

An overwhelming majority of Americans think that the Supreme Court justices' political views will influence how they vote on the Obama health care reform cases, a Bloomberg News poll has found.

Respondents were asked "The U.S. Supreme Court will soon decide the constitutionality of the health care reform law signed by President Obama in 2010. Do you expect the Court will make this decision based solely on legal merits, or do you expect politics will influence how some justices vote?"

The poll found 75 percent of Americans think politics will influence the justice's votes, while 17 percent think they will vote solely on the legal merits, and 8 percent aren't sure.

http://go.bloomberg.com/health-care-supreme-court/2012-03-14/exclusive-poll-americans-think-politics-will-influence-justices-health-care-votes-2/

[occupy_cbs]

Obviously this conservative court gave us bush as president and citizens united -- proving they are more political than most courts, so they will strike down the PPACA as well, since it's all politics.

[ike5266]

Ah, yes. "It's all politics" and absolutely not about individual rights and freedoms. Uh huh. We'll just have to list you among the other Obama-loving goofs who would prefer living in a communist nation.

[occupy_cbs]

I wish conservative republicans like mortimer, would understand that the republican party has never wanted health care reform, and will continue like they have in the past, to let the for-profit insurance mafia write the rules and control the argument, while letting health care costs spiral completely out of control, so that only the top 1% can afford health care in America!

Actually mortimer, eco99 and myself are firm believers in SP-UHC like the rest of the entire industrialized world, providing better health care for less than half of what the U.S. spends today, for all citizens -- especially since 50% of all our health care is already controlled by the government today.

Too bad there's too many unChristian-like people in America today -- mainly voting republican -- that only want the wealthy to have access to health care!

[Larnan5]

This supreme court could go down in history as the one that set back healthcare for regular people fgor generations. Can you imagine the uproar from those in favor of repeal when they finally realize their kids are no longer on their policies, that their preexisting conditions are no longer covered and that their insurance company can cancel or refuse pay at will. It will be interesting to watch them wait for the republicans to help.

[occupy_cbs]

Mortarman: "Can you imagine them doing their jobs instead of deciding to weigh into political issues?"



Absolutely not, since I believe the Bloomberg poll is correct, that an overwhelming majority of Americans think politics will influence justices' health care votes:

Exclusive Poll: Americans Think Politics Will Influence Justices' Health Care Votes

An overwhelming majority of Americans think that the Supreme Court justices' political views will influence how they vote on the Obama health care reform cases, a Bloomberg News poll has found.

Respondents were asked "The U.S. Supreme Court will soon decide the constitutionality of the health care reform law signed by President Obama in 2010. Do you expect the Court will make this decision based solely on legal merits, or do you expect politics will influence how some justices vote?"

The poll found 75 percent of Americans think politics will influence the justice's votes, while 17 percent think they will vote solely on the legal merits, and 8 percent aren't sure.

http://go.bloomberg.com/health-care-supreme-court/2012-03-14/exclusive-poll-americans-think-politics-will-influence-justices-health-care-votes-2/

[occupy_cbs]

Mortarman: "I wish you two understood te problem and understood why this is NOT the right way!"



Most people do indeed understand the problem is lack of affordable health care, since the U.S. pays more than twice as much per person for health care as the rest of the industrialized world, yet has worse health outcomes except for breast cancer and prostate cancer.

We already know that you conservatives have such faith in the "free market," and will go to your graves delusionally 'thinking' that our health care debacle will be fixed magically just like our budget deficits, by only cutting spending and denying health care to everyone except the very wealthy!

We've already watched what the "free market" has done to health care over the past 30 years as health care costs have spiraled out of control -- made it worse; had fewer Americans with access to health care; and premium cost has increased 150% in the decade before PPACA.

[occupy_cbs]

Some people argue that the Constitution's framers could not possibly have envisioned a congressional power to force purchases. However, in 1790, the first Congress, which was packed with framers, required all ship owners to provide medical insurance for seamen; in 1798, Congress also required seamen to buy hospital insurance for themselves.

In 1792, Congress enacted a law mandating that all able-bodied citizens obtain a firearm. This history negates any claim that forcing the purchase of insurance or other products is unprecedented or contrary to any possible intention of the framers.

First was the 1790 law, passed by that first Congress, which applied to any U.S. ship that was at least 150 tons or with a crew of at least 10. It required the master or commander to either have a supply of on-board medicines (with instructions) or provide "all such advice, medicine, or attendance of physicians, as any of the crew shall stand in need of in case of sickness" and do it "without any deduction from the wages of such sick seaman or mariner."

Sounds like mandatory health care to us.

Then, in 1792 , a Congress that included 17 framers passed a law requiring nearly every "free able-bodied white male citizen" age 18 to 44, within six months, "provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges," along with balls and gunpowder. A rifle could be substituted. The purpose was to establish a uniform militia.

Again, that sounds like a mandated purchase to us.

Finally, in 1798, a Congress that included five framers expanded the health coverage mandate, requiring every ship owner or master coming into a port to pay 20 cents per seaman for every month each worker had been employed.

The funds, which could be withheld from the seamen, were used "to provide for the temporary relief and maintenance of sick or disabled seamen, in the hospitals or other proper institutions now established" in the port. Leftover funds were used to create hospitals for those mariners.

http://www.politifact.com/rhode-island/statements/2012/jan/13/einer-elhauge/harvard-law-professor-says-early-congress-mandated/

[occupy_cbs]

Harvard Law professor says early Congress mandated health insurance for seamen and gun ownership for most men

"In 1790, the first Congress, which was packed with framers, required all ship owners to provide medical insurance for seamen; in 1798, Congress also required seamen to buy hospital insurance for themselves. In 1792, Congress enacted a law mandating that all able-bodied citizens obtain a firearm."

http://www.politifact.com/rhode-island/statements/2012/jan/13/einer-elhauge/harvard-law-professor-says-early-congress-mandated/

[occupy_cbs]

When a poster has nothing to argue with, the little man says someone else is "wrong" but has nothing to offer as to why. Sorry morty, but you came to this battle of wits empty handed, and expect others to 'think' you know something more than a 5th grader!

[occupy_cbs]

One of the unusual things about the legal challenge is that most of the law's big changes have not yet gone into effect, which has muddied the debate about how it will likely affect people's lives in practice. The individual mandate, for example, is not slated to begin until 2014. As more provisions are rolled out, the law's benefits for individuals will likely become clearer to many. For a lot of people this law is going to be a desirable thing on a personal level. Can it be improved?.........definitely, and should have been this year!

From a public health perspective, the only argument against the law is that it should be even more aggressive in ensuring that people have access to affordable health care.

[Eco99]

This is try occupy as I have read that even when fully enacted there will still be some without access to healthcare. The Act is obviously not perfect as to many concessions were made. But there are truly some great provisions: no lifetime cap on benefits, children can be covered after college and of course the fact that coverage cannot be denied for pre-existing conditions.

[occupy_cbs]

Yes eco99, while definitely not perfect, the PPACA also has numerous sections proposed by republicans during the 1 year of debate and compromise, that are cost-saving ideas:

Section 1333: Allows the formation of interstate compacts, which lets families and businesses buy health insurance across state lines.

Section 1312: Allow individuals, small businesses, and trade associations to pool together and acquire health insurance at lower prices, the same way large corporations and labor unions do.

Section 1302: Gives states the power to junk the whole of the health-care plan -- that means the individual mandate, the Medicaid expansion, all of it -- if they can do it better and cheaper.

Section 6801: Since the malpractice problem is on operating tables, not in court rooms, this encourages states to develop new malpractice systems and suggests that Congress fund the most promising experiments.

[sharong59]

Ya know, Canada has a "socialistic" type government insurance and it works! People pay for it in their taxes, I'm told and their healthcare is much more reasonable than ours! In fact, the U.S. has the most costly insurance in the world! Gee, could big, conglomerate insurance companies and corrupt doctors and hospitals milking insurance claims be the reason why? If the industry can't fix it, who else is going to but our government!
A couple of years ago my son, who was to old to still be on my insurance even tho I was supporting him because he couldn't find work, had a severe ear infection, so bad, the opening to his ear was almost entirely closed! He was in excrutiating pain but had no job or insurance! Public Aid wouldn't give him a medical card because he wasn't a full time student or disabled nor did he have children. He went to the e/r and they had him wait in the e/r waiting room for 4 hours! All they did during that time was give him a coldpack to take the swelling down! He never got checked by a doctor, probably because he didn't have any insurance and gave up and went home! 3 weeks later he got a bill from the hospital for $1300.!!! We about fell off our chairs! What? were they charging him for taking up space in the e/r? They charge you astronomical prices just ot walk in the e/r door! If you can't pay, it gets passed on to the consumers with insurance in the form of higher premiums! This is why it is so important to give EVERYONE insurance. To get them regular doctors so they don't have to pay outrageous e/r charges that run up premiums for the rest of us! It's like cell phones, when they first came out, the prices were such only the rich could afford them but the more people who got them the lower the price was because the market was saturated! Now they are all having price wars who can give you the best deal! I do believe their was a stipulation in Obamacare too that if you could not afford insurance, the government would help you out. I really think in the long run this Healthcare plan will really help, we just have to get the "bugs" out of it! It deserves a chance tho. I also like the way statistics changed drastically in a day! Yesterday, I read they did a poll and 57% wanted to keep Obama care or just tweak it, the rest wanted it repealed. Now today all of a sudden it's the other way around? Only 1 in 4 wants it? BS! Going by the rallies going on around the country for it, I'd say this survey was paid for by the GOP!

[Eco99]

Ding Ding Ding!!! Great points and sorry to hear about your son.
Our country is 1 of only 2 or 3 of the industrialized countries that do not have some form of subsidized health care, we have some of the highest costs and only mediocre returns on over all health. It is crazy to think we are right and everyone else is doing it wrong. But our political system here seems more beholden to corporations than to the people politicians are suppose to protect are serve. They are public servants not corporate servants.

[Eco99]

Or how about someone who loses their job and cannot get any coverage due to a pre-existing condition ... they would not necessarily fit into your demographic, or children of hard working parents that garduated and cannot find a job and cannot get any insurance ... hardly deadbeats ...

[Atheist_al_Qaeda]

There is only one way to see.
Strike down the mandate(s) and see if it can.
These sorts of mandates are opening up a Pandora's Box on what the government can force us to buy in the future and could set a precedence in that regard.
This is how we start losing our personal freedoms to socialism,Marxism and communism.
What other freedoms are you willing to give up for socialized medicine?

[Eco99]

What are your views on the Patriot Act, I believe that was far more intrusive into our freedoms then Health Care, or any number of the laws passed in the past administration ... if you refuse to make the same argument against those acts it is kind of hypocritical ...

[Eco99]

I never said I supported what Obama did as I did not. I was simply pointing of a fact that unlike you I can and do criticize both parties for what they do wrong while you vehemently defend the actions of your party while demonizing the same actions in the other party.
And for the record I disagreed with the extensions and the indefinite detentions, as well as the attack on citizens outside the US. But I want to hear you say you disagree with the waterboarding that was done under W that was against a treat we are signatories to that carries the weight of law in this country. But I doubt you will agree and fully expect you to defend that ...

[californiadreaming1]

If the mandate is such a good thing, then why does the government have to expand Medicaid by 20 million people to take up the slack?

We are hearing nonsense everywhere, but they are just numbers. What is real? It seems to me that reform can be accomplished without stuffing everyone's pockets - but the people in Congress disagree.