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Reason Foundation

That Darn Mandate

Will Americans be forced to buy health insurance?

Shikha Dalmia
November 18, 2009

ObamaCare has nothing going for it anymore. With unemployment touching double digits, its economic timing is bad; with polls showing tanking support in every group outside of the narrow sliver of die-hard liberal reformers, its political timing is bad; and with the Center for Medicare and Medicaid Services last week saying that it'll add billions to the already out-of-control deficit, its fiscal timing has gone from bad to awful.

So how are Comrades Pelosi, Reid and Obama able to march ahead with their grand designs undeterred? One reason is that Republicans have done precious little to seize the moral high ground from them. By insisting on the removal of the public option—instead of the individual mandate—as the price of doing business, Republicans have missed a major opportunity to put Democrats on the defensive and change the terms of the debate.

Republicans threw down the gauntlet on the public option—a government-funded, Medicare-style insurance plan that will compete with private insurance—in a June letter to Obama. "Washington-run programs undermine market-based competition through their ability to impose price controls and shift costs to other purchasers," they said. "The end result would be a federal government takeover of our health care system, taking decisions out of the hands of doctors and patients and placing them in the hands of a Washington bureaucracy."

True. But the problem is that Democrats don't need the public option to engineer a "federal takeover of our health care system." All they need is the power to force Americans to purchase insurance.

A mandate will fundamentally alter the relationship between Americans and their government. Instead of the government being accountable to them, they will become accountable to their government. No less than the Congressional Budget Office—a non-partisan government agency—once admitted as much. "A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action," it noted. "The government has never required people to buy any good or service as a condition of lawful residence in the United States."

If the government can force Americans to buy coverage on the threat of fines or even imprisonment—an option that Nancy Pelosi has pointedly refused to rule out—every other government diktat becomes small potatoes by contrast. In fact, it becomes necessary. If uninsured Americans must buy coverage, why shouldn't other Americans be taxed to subsidize them? Why shouldn't the insurance industry be required to sell them coverage? Why shouldn't government set insurance prices to ensure affordability? Why shouldn't doctors and hospitals be asked to charge only "reasonable" rates—or offer only government-sanctioned treatments? Nothing about ObamaCare fundamentally changes so long as the individual mandate remains intact.

Therefore, instead of wonkishly droning about the public option, Republicans should counter Democrats' grand appeals for "universal coverage for all" with equally grand appeals for "medical freedom for all." They should stand together on the Capitol steps and issue the health care equivalent of Reagan's Berlin Wall ultimatum: "Mr. President: Tear up this mandate."

During the campaign, Obama himself successfully stopped poor Hillary dead in her tracks by reminding voters at every turn of her tyrannical plans to force them to purchase coverage. So why aren't Republicans doing the same to Obama?

The main reason is that they themselves are deeply conflicted about the mandate. On the one hand, every Republican on the Senate Finance Committee voted against it—except, of course, for Maine's Sen. Olympia Wavering-Heart Snowe. On the other hand, many Republicans, led by their intellectual lights at the conservative Heritage Foundation, among others, have long accepted—no, championed—the notion that unless people are forced to carry insurance, freeloaders who land in emergency rooms will cripple the health care system. Legislate personal responsibility, in other words. It was a Heritage plan for forced coverage that formed the blueprint for the Massachusetts universal care debacle that the then Republican Gov. Mitt Romney enacted.

Thus Republicans have no leg to stand on now that Obama, pulling one of his many switcheroos, has embraced the individual mandate. Heritage folks are trying to pull their own switcheroo by opposing Obama's mandate, saying what they had originally proposed for Massachusetts was not really a mandate but actually a self-insurance scheme under which an uninsured person would have to post a personal bond before being treated in an emergency room.

But countering mandates with bonds doesn't exactly make for a rousing rallying cry. Indeed, both ideas are based on the mistaken diagnosis that the central cause of our health care woes is the cost of uncompensated care that the uninsured get. The fact of the matter is that this care accounts for no more than $40 billion of the country's $2.26 trillion health care bill—or less than 3% of total health care spending. This is less than what department stores lose to shoplifting every year. Several private hospitals that I visited in India last month make a fraction of the profits that American hospitals do but still reported treating up to 10% of their patients for free.

The mandate barring American hospitals from denying treatment to anyone who lands in emergency—the root of the supposed freeloader problem—certainly imposes a heavy burden on some hospitals, especially in inner cities. But it is far from clear that it forces American hospitals as a whole to provide more charitable care to the uninsured than what they would have without it. It would certainly be worthwhile at some point to consider policy options to replace this mandate with mechanisms to strengthen voluntary charity by hospitals and others. In the meantime, however, there is zero evidence to suggest that this mandate is imposing a crippling enough burden on hospitals to warrant mandates on everyone else as well.

The Republican strategy for defeating ObamaCare consists of notifying: seniors that they will face rationing and loss of private Medicare options; the uninsured that they will face fines and possibly jail; the young and healthy that they will have to subsidize the old and sick, etc. Alerting Americans to the personal dangers they will confront under ObamaCare is certainly a legitimate part of the political process.

However, the downside of a strategy based entirely on fear is that even if it succeeds now, it won't help to define the proper terms for a genuine solution in the future. For that, Republicans have to offer a principled critique of ObamaCare that delineates the sharp moral choices that Americans face. The current health care battle is the domestic policy equivalent of the Cold War. Democrats are on the side of command-and-control mandates that deprive individuals of choice. Republicans should position themselves on the side of market-based solutions that empower--not enchain--patients.

Shikha Dalmia is a senior analyst at Reason Foundation and a bi-weekly Forbes columnist. This column first appeared at Forbes.com.


Shikha Dalmia is Senior Analyst


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