This past week witnessed the long anticipated, commencement and culmination of the Supreme Court hearings on the Affordable Health Care Act's constitutionality. Each of the three days brought endless speculative predictions as to how the justices will vote and how their decisions will impact the law, the health care system, the President and his reelection.
The height of the speculation came at the end of the second day after the justices' stern questioning and the poorly executed defense by Donald Verrilli, the Solicitor General and lead lawyer for the Obama administration in this case. Proclamations attesting to the mandate's death echoed predictions from the past that the health care reform's demise would be Obama's “Waterloo”. Opposing sides in the media spun the justices' questions in a multitude of directions, the Right claiming the entire law will be struck down, the Left predicting a decision against the mandate would help Obama's reelection effort effectively eliminating a primary target from the GOP's campaign arsenal. But there is another tactic Democrats and the Administration could employ.
As criticisms of the individual mandate evolved, media reports found it was a long-held Republican choice for any health care reform. Originally conceptualized in the late 1980's by the Heritage Foundation, a conservative think tank, it was later offered by many prominent congressional Republicans as an alternative to “Hilarycare”, an effort by the Clinton administration to reform the health care system in the mid-1990's. This support for the provision continued up to the point it was placed into the Democrat-sponsored bill, The Patient Protection and Affordable Care Act of 2010.
Before its inclusion into the health care reform bill, Democrats and the President were opposed to an individual requirement to purchase insurance. The Democrats had their own proposal at the heart of the legislation, where the mandate now resides. It was called the Public Option, an insurance option similar to Medicare, offered to consumers by the federal government. It was designed to compete with private insurers within a network of insurance exchanges set up as competitive health insurance markets. This approach was derided by conservatives as a trojan horse for a single-payer system or as government-run health care. The message was effective as it produced intense public outcry. The public option was subsequently removed and as a gesture to Senate Republicans, in the spirit of compromise, the individual mandate took its place. Unfortunately, this conciliation was met with the same derision, and claims of government-run health care.
Given the history of the, now controversial mandate, its path into the health care reform and to its potential demise as an unconstitutional measure, could Democrats and President Obama use this to their advantage? Could the President place it back at the congressional Republicans' feet, saying, “We tried it your way, now let's do it ours.” After all, the public option was constitutionally benign. The government is already an insurance provider. Medicare and Medicaid are government insurance programs. It's the sole provider of flood insurance in the country. There's been little controversy over the federal government's role in those areas. Could this tactic prove beneficial for the President and bestow credibility upon the public option?
In response, a devil's advocate may postulate such a strategy would produce criticisms similar to those accusing the President of not taking ownership of his policies, of blaming others for his problems. Much has been made of Obama blaming the slow recovery from the deep recession on the previous administration and on Republican obstructionism. A tact such as this could be construed in the same manner and viewed negatively by the public.
Despite this, this approach may work. IN a Congress with historically low approval ratings, the Republicans are ranked the lowest. The President's approval is in ascension, a result of the improving economic recovery. Republican support for the individual mandate is well documented. The implementation of an effective message placing the mandate back into the GOP's hands could make it difficult for the Party to deflect their long-term support for the unpopular measure.
If the mandate is indeed thrown out it may breathe new life into the public option. With the exception of the individual mandate, there is exceptional public approval for Affordable Care Act's numerous other provisions. Those which require insurers to cover preexisting conditions, that allow young people to remain on their parents' policies longer and those that require insurance companies to spend more premium dollars on actual health care are all popular. In the same vein, as the other provisions have grown in popularity, the public option is more likely to be accepted by the public. A Supreme Court decision against the mandate could provide a return to public option and a boost to the President if he picks himself up to promote its reintroduction.