No matter what decision comes from the Supreme Court, which began hearing arguments Monday on the constitutionality of the Affordable Care Act health reform’s individual mandate, the individual mandate will continue to be a major flashpoint in the upcoming election and its aftermath. Indeed, as Mitt Romney’s candidacy blossomed in recent months, the media have finally come around to writing the “mandate” stories they ignored during the Great Health Reform Debate—sort of. My colleague Erika Fry, in discussing the political storm seeded by BuzzFeed’s “revelation” that Romney once penned an op-ed in USA Today supporting the mandate, raised two questions: Has the press ceded the reporting on Romney’s policy-shift problem to opposition researchers? And why haven’t the media done their jobs of explaining what the mandate does and how and why it came about?
What follows is an abridged history of the individual mandate, for those who are curious about its paternity and might—just might—want to know how it came to be.
In “Romney’s Dilemma,” his fine New Yorker piece last year, Ryan Lizza reported that the conservative Heritage Foundation had promoted the idea of health insurance exchanges—a central location where people could shop for and choose among myriad offerings of private insurance sellers—a key provision of the Affordable Care Act and the Massachusetts law. Lizza noted that the exchanges would also “help accomplish another long-term conservative policy goal: transforming health insurance from a responsibility for employers to a responsibility for individuals.”
The notion of shifting the financial burden of health insurance from employers to individuals surfaced during the Clintons’ attempt at reform in 1993-94. Back then, politicians and the business community talked about making consumers buy health insurance instead of requiring employers to provide it (which the business community did not want), with the additional goal of pushing further off the table any possibility of government-provided coverage through a national health insurance system.
The mandate solution, accompanied by a shopping service and subsidies that would help people buy coverage, began to appear in the academic literature. Timothy Jost, a law professor at Washington and Lee University and a strong advocate of the Obama law, wrote in the New York University Law Review in 2001 that “a remarkably broad consensus has emerged as to how to address” the problem of the uninsured. The solution, wrote Jost, was a scheme of tax credits to help them buy insurance, proceeding “from the assumption that the best way to expand access to health care for the uninsured is to build on our current system of private insurance.” Obama and other supporters used that narrative during the reform debate and continue to do so. Remember the phrase “If you like your coverage, you can keep it”? By the 2004 presidential campaign, both John Kerry and George W. Bush supported some type of tax credit arrangement to help people buy coverage.