The Arguments from Thirty-Six Republican Senators Against Severing the Individual Mandate

With their recent decision to include the repeal of the Affordable Care Act’s so-called “individual mandate” in their proposed tax overhaul, Senate Republicans are attempting to do the very thing that they previously argued the Supreme Court should not do.

This is not the first time the government has considered severing the individual mandate from the rest of the Affordable Care Act. In 2012, when the first Obamacare case was before the Supreme Court, one of the questions the Court considered was what it should do if it found that the individual mandate was unconstitutional: should it strike down the mandate and leave the rest of the law intact, or should it strike down the entire law?

Many parties weighed in on this question and submitted briefs to the Court. These briefs provide a wealth of information and expert testimony on the likely consequences of eliminating the individual mandate and leaving the other parts of the law intact. One of these briefs is especially salient. It was filed by thirty-six Republican senators, some of whom are among those responsible for the addition of the repeal of the individual mandate to the Senate’s tax reform bill.

The senators’ brief argued that if the Supreme Court had found that the individual mandate was unconstitutional, it should have struck down the entire law. The brief’s primary argument was that if the Court had struck down the mandate and left the rest of the law intact, it would have left in place a “statute that Congress would not–and did not–enact.” But in their attempt to get the Court to strike down the entire law, the thirty-six Republican senators produced a brief that makes strong arguments against doing what some of those same senators are now attempting to do.

For example, the senators’ brief argues that “without the mandate, the statute’s reforms cannot work as intended,” and “Congress’ attempted solution to the twin problems of health care coverage and costs disappears.”

The brief cites expert testimony that confirmed the “importance of the individual mandate to the dual goals of the PPACA [the Affordable Care Act].” For example, it cites testimony by the Director of the Congressional Budget Office, Douglas Elmendorf, that the individual mandate made a big difference in the level of coverage, and it identifies statements by CEOs and industry leaders that included comments on the importance of the individual mandate.

The brief continues that “Congress studied the experience of states that had enacted similar insurance reforms without an individual mandate,” and that the experience of the states “showed that similar reform without the mandate actually raised the cost of insurance, increased the number of uninsured, and in at least one case, destabilized the insurance market.”

The brief cites Senator Baucus, one of the Democratic proponents of the law, describing the findings of the Congressional Budget Office. Senator Baucus said, “Without it [the individual mandate], we lose coverage for millions of Americans. Without it – without that reform – premiums could spike by up to 15 to 20 percent in the nongroup market.”

The brief also cites Senator Baucus responding to an amendment proposed by Senator Banning in September 2009 that would have allowed individuals to opt out of the mandate. Senator Baucus said, “Obviously individuals will just opt themselves out, and that is going to undermine this whole system here. I would say it is a mortally wounding amendment because it basically says no more personal requirements, no shared responsibility for individuals.”

What the brief fails to mention, however, is that six of the thirty-six Republican senators who filed the brief voted for Senator Banning’s amendment. The six senators were Senators Hatch, Grassley, Crapo, Roberts, Enzi and Cornyn–six of the senators who are responsible for adding the repeal of the individual mandate to the Republican’s tax overhaul bill.

In other words, in 2009, these six senators voted for an amendment that would have effectively eliminated the individual mandate. Then, in 2012, they submitted a brief to the Supreme Court that cited the counter-arguments to the amendment they had voted for as evidence of “Congress’ understanding of the mandate’s indispensable role in the statutory scheme.” And now, in 2017, they are again attempting to get Congress to do the very thing that their brief argued Congress would not have done.

Clearly, these six senators are not personally opposed to ending the individual mandate and leaving the rest of the law in place. That they are willing to do this in the face of the evidence cited in their brief shows that they have strong objections to the mandate. Given these objections, these senators could have had only two motives for submitting a brief to the Supreme Court that is filled with arguments in support of the individual mandate and is silent on their objections. Either they virtuously set aside their objections in order to defend, as their brief purports, Congress’s “institutional interests.” Or, believing that their brief would only be used in the event that the Court had struck down the individual mandate, they duplicitously obscured their objections and attempted to use the arguments of their Democratic opponents against them in an effort to get the Supreme Court to strike down the entire law. There is little doubt which of these motives drove these six senators to file the brief.

And while the other thirty senators also undoubtedly filed the brief in an effort to get the Court to strike down the entire law, some of the senators may have actually opposed severing the mandate from the rest of the law. Former Senator Olympia Snowe, for example, voted against Senator Banning’s amendment. This shows that, while she opposed the law, she also believed it was better to have the Affordable Care Act with the individual mandate, than to have the law’s other reforms without the mandate.

Like Senator Snowe, some of the other thirty senators may have opposed eliminating the individual mandate and leaving the rest of the law intact. For example, Senator Susan Collins recently said that the inclusion of the repeal of the individual mandate in the tax overhaul bill complicates the bill. And Senators John McCain and Lisa Murkowski voted against the recent Obamacare repeal bills. These and other senators may have opposed severing the mandate.

But even if some of the currently-sitting senators who submitted the brief opposed severing the mandate, those senators may still vote to repeal the mandate if the repeal remains in the tax overhaul bill. They may believe, for example, that $338 billion in tax cuts is more important than significantly raising the cost of insurance, increasing the number of uninsured and potentially destabilizing insurance markets.

One thing is certain, however: if the repeal of the individual mandate remains in the tax overhaul bill and the bill passes, no one will be able to argue, as the senators’ brief argued, that voters’ “elected representatives did not vote for this law without the mandate.” Those who vote for the bill will own the result and all of its consequences, and voters will be able to “hold their Representatives or Senators accountable for the health care reform legislation as it was passed.”


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