The Affordable Care Act Mandate: It Comes Down to Optics

Early in the course of the Disease Management Care Blog marriage, the spouse would target an important non-optional purchase for the DMCB spawn and tell her husband to hand over the cash. Provoked by a loss of control and a spike in circulating blood testosterone levels, the annoyed DMCB would resist. After listening to its sputtering claims that it was better suited to evaluating the merits of said purchase, the shrewd spouse relented.

After listening to very smart dueling lawyers (Simon Lazarus of the National Senior Citizens Law Center and Ilya Shapiro of CATO) at the AMA National Advocacy Conference, the DMCB decided that a key part of the debate over the individual mandate is the tangled DMCB-spouse-spawn purchasing relationship writ large.

The debate over the mandate (which, by the way, has been supported by the AMA for years) comes down to the "optics" on whether there is a difference between:

a) the spouse (government) collecting the 'hand-overed cash' (taxes) to make a purchase necessary for DMCB spawn upkeep (health care insurance),

versus

b) the DMCB (a citizen) being obliged (mandated) to spend its own cash to make the necessary spawn-upkeep purchase (health care insurance).

Supporters of the mandate point out that the Feds can use payroll taxes to force us to purchase Social Security. It can also use its taxation powers to purchase Medicare Advantage on our behalf. The only difference in the mandate scenario is that the Feds-spouse are taking themselves out of the middle. In the end, it's the same outcome.

Opponents of the mandate make an important distinction between it and taxes. While taxes are as certain as death and can be used by the spouse-government to buy anything on our behalf - examples include Fannie Mae (mortgages), GM (cars) and AIG (insurance) - it shouldn't necessarily be able to oblige DMCB-citizens to buy the stock of Fannie Mae, GM or AIG, even though that's what is happening anyway. It also can't require citizens to buy their mortgages, cars or insurance products either.

Supporters say a key distinction is that health care is unlike mortgages, cars or insurance because it's not optional. Opponents retort neither is food and shelter.

And so it goes.

The DMCB has previously examined the Affordable Care Act's (ACA) "individual responsibility" and "penalty" language (as an aside, to its knowledge, the word "mandate" never appears in the Act itself). It recalls a craven Congress wanted to avoid the political atmospherics of a "tax" while simultaneously supporting a private health insurance market. It turns out that the legislative cure may have been worse than the disease.

As an aside, during Q&A, the DMCB asked about fast-tracking the ACA-mandate legal challenges to the Supreme Court. The panel pointed out that the appeals process will allow both sides to sharpen their legal arguments, enable a better review by the Supremes and, ironically, prompt Congress to start thinking about "Plan B." Good points but, then again, they're lawyers.

By the way, as the years have passed, the DMCB just hands over the money.