An interesting dynamic is taking shape in Congress as health care lawsuits challenging the constitutionality of the individual mandate wind their way up to the Supreme Court.
One potential outcome — and the one that Republicans are hoping for — is that the Supreme Court will invalidate the mandate and sever it from the law, leaving an unstable health care policy in place.
Theoretically, Congress could just change that mandate in a way that would easily pass constitutional muster — simple tweaks that could pass in a matter of days and leave the implementation process largely unmolested.
But for that to happen, Republicans would have to play ball — and that would mean giving up new-found leverage to really undercut the law. Don’t fool yourself into thinking they’d give up that power willingly.
“One of the great things that would happen if the Supreme Court decides to uphold our position on the individual mandate — that it is unconstitutional — is that would force the Democrats to sit down with us, and finally do a bipartisan version of health care that would work,” Sen. Orrin Hatch (R-UT), the top Republican on the powerful Senate Finance Committee, told me Thursday night. “If the mandate is stricken, it seems to me this bill has a heck of a time ever becoming viable. Which means that they would have to come together, and work with us, to come up with a comprehensive health care bill.”
Things weren’t always this way. During the debate over the law, Republicans and Democrats considered less blunt approaches to bringing consumers into the health care market.
“We did look… when we were trying to look at alternatives during the debate, at a defined enrollment period, which allowed people to sign up, but didn’t make them sign up, but where there were penalties if they didn’t sign up during that period,” Sen. Bob Corker (R-TN) told me Tuesday. “We had studies done that said that that in fact could well solve the problem of people enrolling after the fact.”
There are other ideas out there, too.
The question is whether any Republicans would play ball with Democrats to swap out the existing mandate with a gentler one if the Supreme Court rules against the administration and strikes the mandate. It’s too early to say for sure. If that happened, the insurance lobby would storm the Hill and demand a quick fix to the law, lest they suddenly find themselves forced to insure a flood of exclusively sick people. But if the law remains unpopular, and Republicans continue to believe there’s a need and an advantage to scrap the entire thing, they could ignore that pressure and demand major changes.
That would create tons of uncertainty for business — something Republicans claim to hate. And, depending on the timing, it might even leave individual constituents stuck with soaring premiums. But if they’re determined to bring the law down, it could happen.
