Supreme Court


The Enduring Myth of the Individual ‘Mandate’

Supporters of the Affordable Care Act have always had a difficult time talking about the “individual mandate,” since it is at the same time the most strikingly coercive and heavy-handed element of the law while also being essential for making the law work. As I argue in a column at National Review Online, however, the Supreme Court's decision last June to uphold Obamacare also undermined the legal and moral force of the “mandate” by ruling that it was only legitimate if understood as an optional tax on the uninsured, not a legal mandate obligating citizens to purchase health insurance.  

Though the law’s supporters believe the threat of the mandate is critical to forcing people into the Obamacare exchanges, they don’t want to admit this directly to voters. So the mandate is mentioned often in policy circles, but seldom by supporters when communicating in the media or directly to voters. Every once in a while, though, when pressed in more public settings on why they think the young will sign up for coverage, they are forced to admit that it’s due in part to their faith in the mandate — as Zeke Emanuel did on Fox News Sunday over the weekend.


The ambivalent embrace of the mandate by Obamacare’s authors is reflected in the law’s construction. Initially, the mandate’s year-by-year penalties were set at much higher levels, but they were lowered by Democrats on the Senate Finance Committee to protect themselves from political attacks by Republicans. As enacted, the mandate’s penalties are very low, especially relative to the premiums charged by insurers in the exchanges, and especially in the first two years. In 2014, the penalty, or tax, is the greater of (a) a per-person tax of $95 per adult and $47.50 per child, up to a maximum of $285, or (b) 1 percent of total household income. The tax rises to 2 percent of household income in 2015. A typical household of four people with an income of $40,000 will face a mandate tax of $400 in 2014. That compares with premium payments of $1,500 to $3,000 for the typical low-cost insurance offerings, even after the federal subsidies are netted out of the premium costs.

You can read the rest of the column here.

posted by James C. Capretta | 11:45 am
Tags: individual mandate, Supreme Court
File As: Health Care

The Mandate After the Court

My colleague Yuval Levin and I have co-authored a new article for National Review Online about how the Roberts decision will affect Obamacare:

In the wake of the Roberts decision, participation in Obamacare’s insurance scheme is optional. Rather than a requirement to buy coverage backed with a penalty for violators, the law now offers Americans two equally lawful and legitimate options: buy expensive insurance (which Obamacare will make all the more expensive), or pay a modest (and still largely unenforceable) tax and just buy insurance for the same price later if you need it. Presented as a choice, not a command, this provision will invite a straightforward comparison, and for many Americans the choice it would pose would be a very easy one. 

You can read the rest of the article here

posted by James C. Capretta | 12:03 pm
Tags: Supreme Court, Yuval Levin
File As: Health Care

SCOTUS Post-Mortem

I have a column up at e21 on what today's Supreme Court ruling means for the future of Obamacare, and what opponents of that plan need to do to repeal and replace it:

Still, there’s no question that today’s ruling provides a boost to the administration and to the long-term prospects of ObamaCare. The future of ObamaCare now rests in the political and legislative arena -- perhaps appropriately, as that is where the fate of most important policy matters should be settled. ObamaCare opponents should be optimistic, because the public remains firmly opposed to the law, but also determined, because it won’t be easy.

You can read the rest of the article here.

posted by James C. Capretta | 4:30 pm
Tags: Supreme Court, Obamacare
File As: Health Care

Obamacare’s Failings Go Well Beyond the Individual Mandate and Medicaid

I have a new issue brief at the Heritage Foundation on four of the worst problems with Obamacare that are not under review by the Supreme Court. Here’s one:

Obamacare will exacerbate the nation’s already alarming entitlement spending and debt crises. Already, the dramatic rise in spending on Medicare and Medicaid is pushing the federal budget to the breaking point. Obamacare makes the problem much worse by creating two new additional entitlement programs in the form of a massive Medicaid expansion and a new premium credit entitlement for households with incomes between 138 percent and 400 percent of the federal poverty level. These two entitlement expansions are expected to add a minimum of 35 million Americans to the entitlement rolls when phased in, at an expense of more than $200 billion annually by the end of the decade.

You can read the rest of the article here.

posted by James C. Capretta | 12:45 pm
Tags: Obamacare, Supreme Court
File As: Health Care

Supreme Suspense: Getting Ready for the Big Obamacare Decision

I have a new column up at e21 on how conservatives should be prepared for whatever the Supreme Court decision on Obamacare turns out to be:

...it’s possible to boil down the various scenarios to a handful that capture the most likely outcomes, and to examine the implications of those scenarios through both a policy and a political lens. Indeed, for those who have spent the past three years opposing ObamaCare, it’s critically important to be prepared for all eventualities because what the key players in this drama say and do in the days after the Court issues its decision could be just as important as the decision itself to the future of ObamaCare and American health care.

Scenario 1: The Court Upholds ObamaCare. What if the Court doesn’t strike down any provisions of ObamaCare? This is the scenario conservatives are loath to consider but ignore at their peril. It is certainly possible that the Court will find ObamaCare within the bounds of existing constitutional law, despite the many flaws in the administration’s legal defense that were exposed during oral arguments. If that happens, it will be seen as a severe blow to the ObamaCare opposition because so many conservatives have invested so much energy in the two-year-long legal case....

You can read the rest of the article here.

posted by James C. Capretta | 3:28 pm
Tags: Obamacare, Supreme Court
File As: Health Care

What Now for the Supreme Court?

Over at National Review Online, I’m one of several respondents to a symposium asking the question, “Now that the oral arguments are over: What should SCOTUS do?” Here’s the beginning of my short response:

Yes, Obamacare is “unprecedented” — an unprecedented federal power grab. If allowed to stand, the law would steadily shift immense control over the entire health sector from states, employers, private companies, and individuals to federal bureaucrats. And once the big changes scheduled for implementation in 2014 are set in motion, they will be very difficult to reverse later.

The rest of the response is here.

posted by James C. Capretta | 3:26 pm
Tags: individual mandate, Supreme Court
File As: Health Care

It’s Not Just About the Individual Mandate

I have a new Weekly Standard article on the need not to focus exclusively on the individual mandate in undoing Obamacare:

Obamacare’s individual mandate — requiring that all Americans purchase government-approved health insurance beginning in 2014 — has always been the law’s most vulnerable provision. It is incredibly unpopular, and not just among conservatives. Polls consistently show that a large majority of the electorate opposes it, including a good portion of registered Democrats....

[However], even if the Supreme Court were to strike down the mandate, much of the rest of the law would almost certainly remain in effect. That’s unacceptable. Obamacare without the mandate is nearly as bad as Obamacare with it.

In the end, the fate of Obamacare will almost certainly be decided in the political and legislative arena, not the courts, and the 2012 election is likely to be the decisive battle in that regard. Keeping this in mind, Republicans and conservatives should be doing all they can to make the 2012 election another referendum on the damage Obamacare will do to the American economy and health system....

You can read the whole article here.

posted by James C. Capretta | 2:04 pm
Tags: repeal, individual mandate, Supreme Court
File As: Health Care