Editorial: Indecision on mandate could cripple health reform

The individual mandate to purchase health insurance is the linchpin to the new federal health care law. Insurance companies can’t drop lifetime coverage limits and ignore pre-existing health conditions, as the law commands them to do, and make a profit without picking up a lot more customers or jacking up rates significantly.

Higher premiums defeat the purpose of reform, so that leaves the mandate and whether it is constitutional. Thus far, two federal district judges have said yes. On Monday, a federal judge in Virginia said no. More than 20 lawsuits have been filed against reform.

The consensus among legal scholars is that after bouncing around the lower courts for a few years, this issue will land on the doorstep of the U.S. Supreme Court. So let’s put this on the fast track for a final decision, because the uncertainty would be debilitating. The law is to be fully implemented by 2014, but phasing in changes that hinge on the survival of the mandate could end up being a colossal waste of time and money. Plus, it would postpone alternative solutions if the mandate is scuttled.

A health insurance mandate didn’t used to be such a political football. President Richard Nixon considered one for all employers. In 1993, Republican senators devised one as an alternative to the health plan President Bill Clinton was pursuing. The free market-oriented Heritage Foundation even touted one back then. But times have changed, and the mandate has etched a political dividing line.

U.S. District Judge Henry E. Hudson ruled that the mandate is unconstitutional but that the rest of the law could be implemented. That may be true in a legal sense – if his ruling is ultimately upheld – but as a practical matter it would be a mistake to simply lop off the mandate and proceed. At that point, people could merely buy insurance after they got sick or injured, which would deal a severe blow to private-sector coverage. Insurance works only when there are enough healthy people to subsidize the rest.

In 2008, it cost hospitals $43 billion to treat the uninsured people who showed up in emergency rooms. The costs are also spread in the form of higher insurance rates for all. The Obama administration’s position is that these individuals’ inactivity in the health care market affects interstate commerce and blocks needed reforms, so a mandate is justified.

Judge Hudson and others disagree. They say the federal government is overstepping in compelling individuals to buy something or be penalized. They ask where such a power would end.

Both sides make compelling points, but as a practical matter the nation needs a quick answer. The Obama administration appears content to let this issue run the usual gamut of legal appeals, with the hope that people will come to like various features of reform before the mandate argument ends. The Justice Department has declined to petition the Supreme Court for fast-track consideration.

This political calculation could end up doing a great deal of harm as states begin implementing aspects of the law under a cloud of uncertainty. We need an answer, so we can move forward, or move on to another solution to the nation’s crippled health care system.