The most compelling sentences in the Obama administration’s brief defending the constitutionality of the health care law come early on. “As a class,” the brief advises on page 7, “the uninsured consumed $116 billion of health care services in 2008.” On the next page: “In 2008, people without insurance did not pay for 63 percent of their health care costs.”
Those figures amount to a powerful refutation of the argument that the requirement that individuals obtain insurance or pay a penalty exceeds the government’s authority to regulate interstate commerce. To me, $116 billion seems like a whole lot of commerce. Those numbers are not only relevant to Commerce Clause jurisprudence -- they illuminate the fundamental irrationality of public opposition to the individual mandate.
A Kaiser Family Foundation poll last month found that two-thirds of those surveyed disliked the mandate. Even among Democrats, a majority (53 percent) opposed the requirement; independents (66 percent) and Republicans (77 percent) were even more hostile. Yet this is a provision that the overwhelming majority -- those with insurance -- should support, for the simple reason that they currently end up footing the bill for much of that $116 billion. As the government’s brief notes, “Congress found that this cost-shifting increases the average premium for insured families by more than $1,000 per year.” Those worried about having to pay ever-higher premiums should be clamoring for the individual mandate, not agitating for repeal.
Amazingly, Republicans have managed to transform the mandate from an exemplar of personal responsibility into the biggest public policy bogeyman of all time. The irony of the fight over the mandate is that President Obama was against it before he was for it. During the 2008 campaign, one of the signature differences between Obama and Hillary Clinton was that Clinton’s health plan included an individual mandate whereas Obama’s mandate covered only children. Once elected, Obama quickly recognized that an individual mandate was essential to make the plan work. Without that larger pool of premium-payers, there is no feasible way to require insurance companies to cover all applicants and charge the same amount, regardless of their heath status. In part, hostility to the mandate reflects a broader uneasiness with perceived big government encroachment.
In the Kaiser poll, 30 percent of those who opposed the mandate cited government overreach as the biggest reason. Not surprisingly, twice as many Republicans (40 percent) cited that reason as did Democrats (18 percent). But opposition to the mandate also stems from the public’s failure to understand -- or, alternatively, the administration’s failure to communicate -- basic facts.
For example, Kaiser found that when people were told that most Americans “would automatically satisfy the requirement because they already have coverage through their employers,” favorability toward the mandate nearly doubled, to 61 percent. Favorable attitudes rose to nearly half when people were told that without the mandate, insurance companies would still be allowed to deny coverage to those who are sick; that without the mandate people would wait until they were sick to purchase insurance, driving up premium costs; or that those unable to afford coverage are exempt.
“People don’t understand how the mandate works at all and they don’t understand why it’s there,” Kaiser’s polling director, Mollyann Brodie, told me.
Brodie suspects that it’s too late to change minds. “This law as a whole has really become a symbolic issue to people and they really aren’t open to information,” she said.
Maybe, but the administration must keep trying -- not only to sell the law’s goodies but to explain how the mandate makes them possible. Otherwise, they could end up winning the minds of the justices, yet losing the hearts of the people whose votes they need to keep the law in place.