So will the President delay the individual mandate?

February 11th, 2014

Why not? It’s not like it’s essential to the law or anything. In case you forgot how essential it is, please read the government’s brief on severability.

Remember this:

Congress determined that, without a mini- mum coverage provision, many individuals would take advantage of the guaranteed-issue and community-rat- ing requirements by “wait[ing] to purchase health insur- ance until they needed care.” 42 U.S.C.A. 18091(a)(2)(I). That practice would drive up premiums and threaten the viability of the individual insurance market. Accord- ingly, Congress found that the minimum coverage provi- sion is “essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.” Ibid. Congress also found that the minimum coverage provision “regu- lates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for.” 42 U.S.C.A. 18091(a)(2)(A). The uninsured as a class actively participate in the health care market, and Congress found that their “attempt to self-insure” leads to the consumption of health care for which they cannot pay and the imposition of those costs on other market participants. Ibid.; 42 U.S.C.A. 18091(a)(2)(F).

And this:

By contrast, the minimum coverage provision is essential to ensuring that the Act’s 2014 guaranteed-issue and community-rating reforms advance Congress’s goals. As Congress expressly found (and as experience in the States confirmed), those provisions would create an adverse selection cascade without a minimum cover- age provision, because healthy individuals would defer obtaining insurance until they needed health care, leaving an insurance pool skewed toward the unhealthy. Premiums would increase significantly under that scenario, and the availability of insurance would decline–exactly the opposite of what Congress intended in enacting the Affordable Care Act. The guaranteed- issue and community-rating provisions are therefore inseverable from the minimum coverage provision.

As a unofficial historian of the Affordable Care Act, I won’t let us forget these positions. And others.