You can’t follow the debate and court proceedings regarding the Affordable Care Act (Obamacare) for very long without finding some of the debate around the act very, very strange, and I’m not just talking about the effort to equate being forced to buy insurance with being forced to eat your broccoli. Here are two mysteries that I find very interesting. I don’t have their solutions but I offer some plausible explanations.
Mystery #1: A few words of boilerplate language could have saved the Affordable Care Act from being declared unconstitutional in its entirety. Why was this standard wording left out?
Here I’m talking about something called the “severability clause.” It is a standard piece of boilerplate language Congress inserts in most legislation to make it nearly impossible for the Supreme Court or any other court to strike down the entirety of an act simply because it declares one section to be unconstitutional. A robust version of the severability clause would read something like this:
Every provision in this Act and every application of the provisions in this Act are severable from each other as a matter of law. If any application of any provision in this Act to any person or group of persons or circumstances is found by a court to be invalid, the remainder of this Act and the application of the Act’s provisions to all other persons and circumstances may not be affected.
See more on the severability clause and different versions here:
Democrats say they meant to include a severability clause when they were writing the final draft of the Affordable Care Act but somehow the clause got left out. That hardly seems plausible. Here we have a major piece of legislation, historic legislation, legislation that will be a center piece of Obama’s first term, and Democrats forget to include a piece of standard boilerplate.
A Plausible Solution: Could it be that the severability clause was left out on purpose?
The health insurance industry has offered little opposition to the Affordable Care Act even though there are a number of provisions in it, such as the requirement that they justify their rate increases, that they don’t like. Of course, insurance companies stand to gain a large number of new customers if the individual mandate stands. Could it be that there was a deal? The insurance companies liked the individual mandate because it would bring them new customers. On the other hand, if the individual mandate was declared unconstitutional but the other portions of the law remained, in others words they were severable, then the insurance companies could be stuck with costly requirements such as not being able to refuse coverage because of per-existing conditions. So, the Democrats agreed to accidentally leave out the severability clause in return for insurance companies not fighting passage of the act. The insurance companies bet that if the court struck down the individual mandate, it would also strike down the rest of the complex law, if for no other reason than that the court would not want to wade through thousands of pages deciding what was severability and what wasn’t. So, no mandate, no worry about the rest of the act going into effect. It looks like the insurance companies were right about that.
Mystery #2: Why are Republicans opposed to their own idea and one that fits nicely with their professed social and political philosophy?
The Individual Mandate was a Republican idea. As ProCon.org notes:The concept of the individual health insurance mandate is considered to have originated in 1989 at the conservative Heritage Foundation. In 1993, Republicans twice introduced health care bills that contained an individual health insurance mandate. Advocates for those bills included prominent Republicans who today oppose the mandate including Orrin Hatch (R-UT), Charles Grassley (R-IA), Robert Bennett (R-UT), and Christopher Bond (R-MO). http://healthcarereform.procon.org/view.resource.php?resourceID=004182
Not only is the individual mandate a Republican, it fits with conservative philosophy that stresses personal responsibility. If you oppose the individual mandate, you are siding with those who would ask the federal government to provide them something for nothing—pay the cost of their health care when they are unable or refuse to do so. In other words, you abet freeloaders. Opposition to the individual mandate would be more in line with classical liberalism than conservatism
A Plausible Solution: So, why did Republicans reject their own idea? Maybe they did so for the very simple reason that Obama embraced the idea and made it part of a piece of signature legislation. Could it be that Republicans opposition to the individual mandate is part of their announced political strategy to undermine the Obama administration at all costs, even if it means reject what was their own idea?
Think about it.