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The quiet death of the ObamaCare individual mandate

The quiet death of the ObamaCare individual mandate

The Wall Street Journal notices something that was very carefully slipped past the noses of the American people last week: King Barack and his royal court have largely repealed the individual mandate of ObamaCare, by regulatory fiat.

This latest political reconstruction has received zero media notice, and the Health and Human Services Department didn’t think the details were worth discussing in a conference call, press materials or fact sheet. Instead, the mandate suspension was buried in an unrelated rule that was meant to preserve some health plans that don’t comply with ObamaCare benefit and redistribution mandates. Our sources only noticed the change this week.

That seven-page technical bulletin includes a paragraph and footnote that casually mention that a rule in a separate December 2013 bulletin would be extended for two more years, until 2016. Lo and behold, it turns out this second rule, which was supposed to last for only a year, allows Americans whose coverage was cancelled to opt out of the mandate altogether.

Republican campaign strategists, take note: this is a two-year extension of perhaps the biggest, most embarrassing Administration faceplant, in which they declared ObamaCare itself a “hardship” for the American people.  This desperate move allowed them to assert the authority to grant “hardship exemptions” hither and yon, with virtually no paperwork requirements.

The political damage from this remarkable humiliation was managed by claiming it was a special one-year-only deal to help America get past the bumpy ObamaCare rollout – you know, the rollout they used to claim was smooth as glass, no matter what those nasty old Republicans said.  Now it appears ObamaCare has been classified as a more-or-less permanent hardship for the American people, which begs the question of why we just don’t get rid of the damn thing.

In 2013, HHS decided that ObamaCare’s wave of policy terminations qualified as a “hardship” that entitled people to a special type of coverage designed for people under age 30 or a mandate exemption. HHS originally defined and reserved hardship exemptions for the truly down and out such as battered women, the evicted and bankrupts.

But amid the post-rollout political backlash, last week the agency created a new category: Now all you need to do is fill out a form attesting that your plan was cancelled and that you “believe that the plan options available in the [ObamaCare] Marketplace in your area are more expensive than your cancelled health insurance policy” or “you consider other available policies unaffordable.”

This lax standard—no formula or hard test beyond a person’s belief—at least ostensibly requires proof such as an insurer termination notice. But people can also qualify for hardships for the unspecified nonreason that “you experienced another hardship in obtaining health insurance,” which only requires “documentation if possible.” And yet another waiver is available to those who say they are merely unable to afford coverage, regardless of their prior insurance. In a word, these shifting legal benchmarks offer an exemption to everyone who conceivably wants one.

The Journal implies that it might be time for the Supreme Court to revisit its decision to let ObamaCare survive, seeing as how the Administration just gutted something they described as an indispensable core premise of the law that must be protected at all costs.  Really, at what point has ObamaCare mutated enough to invalidate the decision that upheld it?  That decision was based entirely on Chief Justice John Roberts rewriting the Affordable Care Act on the fly (which, I guess, gives him the distinction of being the first person to do so) and declaring the individual mandate to be a tax.  So now the imperial President can waive taxes for people who might otherwise vote against his Party?

Oddly enough, the Washington Post reported over the weekend that Administration officials are planning to launch a big media campaign to threaten Americans with the individual mandate they just quietly waived:

With the looming March 31 deadline to enroll in 2014 individual health plans, you’re likely to start hearing more about the mandate. Despite all the health care law’s shifting deadlines, the Obama administration has been firm that the March 31 deadline isn’t moving.

Gary Cohen, a top federal health official overseeing health insurance exchanges, told a health insurers’ conference on Thursday that the next few weeks of messaging will place a “very strong emphasis” on the March 31 deadline. The messaging will make clear that “failure to act now could subject you to a penalty for failing to obtain [coverage],” Cohen said.

However, the Post goes on to cite a model advertisement from the Minnesota exchange that pointedly does not mention the tax/penalty for failing to purchase insurance, allegedly because of “time constraints.”  How long does it take to say, “Remember, if you don’t comply with the Affordable Care Act, you’ll be taxed up to 1 percent of your income next year?”

So why waive the mandate in such a stealthy way?  My guess is that it’s a move oriented more towards saving Democrats in 2016 than 2014.  A relatively small number of people would be hit by the individual mandate this year.  They’d probably complain very loudly about it, especially given all these polls that show younger people don’t understand how the Affordable Care Act works, despite the most expensive outreach program in American history.  Now they’ll be quietly told to file for “hardship” exemptions, allowing Democrats to minimize the number of people rushing before news cameras to wail in anguish about their huge tax bills… without having to make a big media splash about how they’ve effectively given up on the individual mandate.  Besides being an embarrassment, such a high-profile announcement would also hinder their desperate efforts to herd more people into the exchanges before the clock runs out at the end of March.

More serious political damage awaits Democrats in 2016, because more people would be affected by the mandate, and the penalties would be much higher.  At that point, with the early scramble to get first-year enrollments up behind them – they will very likely fail to reach half of their 7 million goal, once unpaid and invalid enrollments are factored out – the Administration can consider making a bigger deal about relief from the mandate, a card they can play if poll numbers are looking especially horrendous in the presidential election.

The individual mandate thus becomes an absolutely perfect expression of unconstitutional totalitarian power: a penalty applied arbitrarily, according to the partisan political needs of the imperial President.  It will be deployed as a threat until public resistance grows too strong… at which point we’ll be told to thank our rulers for graciously allowing us to squirm out from beneath their heels.  This could not be much more different from the way our Founding Fathers intended for us to live.

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