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Thursday, October 15, 2009

Mandate For Disaster

by digby

Nancy Pelosi threw down the gauntlet today:
Pelosi came closer than any member of the Democratic leadership has thusfar to suggesting that the individual mandate should be conditional on the inclusion of a public option. Pelosi declined to elaborate when pressed by TPMDC on whether Congress would revisit the individual mandate if the public option can't survive the Senate. But her implication was fairly clear.

The House, she said, "will not force America's middle income families to negotiate with insurance companies."

Health care experts agree that health insurance market reforms can not work unless everybody is in the risk pool--and that means a mandate. But privately, many activists and experts believe that a strong individual mandate is also a gift to the insurance industry, and that it should be used as a bargaining chip to secure other robust measures, such as the public option.

I agree with that and have been writing about it for some time. The mandate without a public option is a political nightmare, especially if the insurance industry follows through on its threat to jack premiums up sky high if the bill doesn't include a stringent mandate. (Anyone want to take bets that they won't?)

It's not just that. There's a high probability that without a public option, this mandate is going to be tested in the judicial system and nobody knows where it will end up. I wrote about this earlier:

The NY Times gives us a hint about how the right is going to respond to the mandate and it isn't pretty:

The requirement that everyone buy health insurance moved a step closer to reality last week — and possibly a step closer to being challenged in court.

Conservatives and libertarians, mostly, have been advancing the theory lately that the individual mandate, in which the government would compel everyone to buy insurance or pay a penalty, is unconstitutional.

“I think an individual mandate will pass, and I think it’s going to be very vulnerable because it exceeds Congress’s constitutional authority,” said David Rivkin, a lawyer who served in the Justice Department under Presidents Ronald Reagan and George Bush. Mr. Rivkin spelled out his argument in a recent op-ed article in The Wall Street Journal that he co-wrote.

“If you say the government can mandate your behavior as far as this type of insurance goes,” he said, “there will be nothing the government can’t do. They can control every single way in which you dispose of your income.”

Reform advocates will undoubtedly look back on all this and wonder if the politics of single payer would have actually been easier. In this particular respect, it almost certainly would have been. There's no doubt that the federal government has the power to tax for certain benefits or compel payments to outside parties for certain optional privileges (like driving.) But whether it has the power to compel all citizens to pay money to particular private interests is an unknown. Who knows what the Roberts Court will decide on that?

I don't know. But the idea of the government forcing all of its citizens to pay money to private interests really is new. The public option would solve that problem.

Update: Here's a nice little salvo from House Ways and means:

A House committee moved Thursday to preserve Democrats' ability to use a procedural tactic to pass health legislation in the Senate.
The House Ways and Means Committee approved a measure that could be used as the vehicle for health legislation to pass in the Senate by a simple, 51-vote majority. Most legislation requires 60 votes in the Senate to pass.

Under the Constitution, revenue measures must originate in the House. If the Senate wanted to use this procedural tactic, the full House would first have to pass a bill providing for it.

House Republicans said the move was more evidence that Democrats are bent on passing a partisan bill. "This is another clear sign that Democrats have chosen to go it alone on health care, have refused to listen to the concerns millions of Americans have expressed about this legislation and blocked every attempt at bipartisanship," said Rep. Dave Camp of Michigan, the senior Republican on the Ways and Means panel.

Ways and Means Chairman Charles Rangel of New York brushed aside GOP efforts to offer amendments to the measure, saying it was nothing more than "housekeeping."

Just in case ...