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Health Care Law May Not Need Individual Mandate, Some Liberals Say

by Dave Helling

Some supporters of the nation's health care reform law offered a surprising new argument last week: The death of the law's individual mandate might actually be a good thing.

The mandate - a requirement that virtually everyone buy health insurance by 2014 - is clearly the most unpopular and legally difficult part of the health care package.

Consider:

•Missourians overwhelmingly rejected it at the polls last summer; Colorado voters followed suit in November.

•In January, Kansas lawmakers are expected to consider a measure outlawing the mandate in the state.

•Last week, federal Judge Henry Hudson of Virginia declared the mandate unconstitutional, casting doubt on the law's legality.

"The individual mandate cannot be applied constitutionally in any circumstance," attorney David Rivkin told a different federal judge last Thursday in yet another lawsuit against health reform, a judge who has indicated deep skepticism about the legality of the mandate.

Conservatives, of course, have bitterly attacked the insurance requirement for a year as an unconstitutional congressional power grab. Now, however, a small chorus of liberals is suggesting the end of the mandate could help, not hurt, the health care law.

That's because the Virginia judge who threw out the mandate left the rest of the law intact. If his ruling is sustained in higher courts, the more popular parts of the law - including the requirement that health insurance companies cover almost everyone - probably would stay in place.

"The truth is you don't need the individual mandate to make this work," former presidential candidate Howard Dean argued after the ruling.

Not all supporters of the law agree. U.S. Sen. Claire McCaskill, a Missouri Democrat, told reporters insurance companies would be crippled - or premiums would go through the roof - if the mandate disappears.

"We're not going to have many private insurance companies in business because what idiot would buy insurance until they got sick?" McCaskill said. "The whole principle of insurance only works in the private sector if you have a risk pool that people are paying into."

That's the exact argument health insurance companies have made since the health care debate began.

"We've said we'll take on all comers ... but in order for that to work, there needs to be a meaningful mandate that everyone have insurance," former Blue Cross and Blue Shield president Tom Bowser said during the debate.

Still, the health insurance industry and politicians on both sides of the aisle appear to believe the mandate has become the most vulnerable part of the law, politically and legally.

"Most of the other arguments are frivolous and were settled by the Civil War," said David Achtenberg, a law professor at the University of Missouri-Kansas City, who believes the courts will eventually uphold the entire law.

"The only argument with any legs is the commerce clause (and the individual mandate)," he said.

And that, in turn, has led legal and political experts to consider alternatives to the mandate if the courts throw it out but leave the rest of the law intact.

"All you have to do is have a sign-up period, and say, if you don't sign up when you're supposed to, then you don't get health insurance, and then you're fully liable for all the costs," Dean said.

A similar system is used to encourage the elderly to sign up for Medicare. That program is voluntary, but more than nine of 10 senior citizens sign up for coverage when they're first eligible because costs escalate for those who wait.

"It's a ‘mandate light,' " noted economist Gail Wilensky, who ran Medicare for President George H.W. Bush. "You don't have to buy insurance. But if you don't, the first time you come in, we're going to add a penalty that you'll have to pay for the next four or five years."

Other alternatives include rewarding people who buy insurance rather than penalizing people who don't. The tax code is filled with similar incentives, such as the home mortgage deduction that rewards specific economic decisions.

But some legal experts aren't willing to abandon the mandate. Achtenberg, for example, said those who choose not to buy insurance are making a decision to "self-insure," an economic decision he said Congress can clearly supervise.

Others are pointing to a 1792 law, signed by President George Washington, requiring most able-bodied white men to buy a gun, part of a law governing militia. That requirement, they argue, shows the Constitution allows the federal government to penalize citizens who don't buy a good or service.

If the courts throw out the mandate but leave the rest of the law intact, the pressure on Congress to revisit the issue will be enormous. Full repeal of the law, politicians in both parties agree, will be extremely difficult. And insurance companies are expected to loudly protest if they lose the premiums from required policies.

So work will continue to find alternatives all sides can accept if the law's most unpopular provision disappears, either in the courts or on the floors of Congress.

At the same time, some politicians said, work should proceed on making the law work - at least until someone declares it's time to stop.

"For now it's the law of land," said Missouri Gov. Jay Nixon, a Democrat. "We will continue to focus on what we can to do efficiently and effectively implement federal requirements."

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