Tuesday, March 27, 2012

Did Verrilli lose on the Mandate on Purpose?

A lot of the discussion about today's Supreme Court argument has been about how bad a job administration legal counsel Donald Verrilli Jr. did in defending the mandate.

In fact, I've been predicting for some time that the mandate (which candidate Obama conspicuously opposed and which was included in the health care law not because the administration wanted it, but because it was necessary to win the votes of insurance state Senators Joe Liebermann of Connecticut and Ben Nelson of Nebraska) would be thrown out, leaving the rest of the bill intact. That would include (especially) the state level exchanges where people who cannot now afford health insurance could choose from an array of government-subsidized private health insurance plans.

I believe that even without the mandate, most people who now can't afford insurance, will buy it when the exchanges are set up. This was the administration's goal anyway, and not forcing people to buy insurance is in keeping with the position that Barack Obama had when he was elected. Of course given that the bill was passed as a package it would have been politically impossible to not defend the whole thing, but if Verrilli 'mysteriously' improves over the next few days, it almost WILL suggest that he was trying to 'throw' this one without saying so openly.

Politically, removing the mandate but keeping the rest of the law intact (as several lower courts have done) represents a win for the President as well. The truth is, if you go point by point, most of the rest of the law, whether we are talking about the exchanges, ending the Medicare prescription drug 'doughnut hole,' ending pre-existing condition exclusions, ending 'recission' (the practice by which insurance companies arbitrarily canceled 20,000 policies per year after people got sick and began needing them,) allowing the parents of college age young people to include them on their plan, or an end to lifetime caps on coverage, has been very popular.

Remove the mandate, and the right loses their best argument for why people shouldn't like Obamacare. Trying to run a campaign on repealing Obamacare (i.e. bringing back recissions and caps and kicking people off of insurance) won't get them very far after that.

If Verrilli's arguments are much better put together tomorrow, then it may very well be that there was indeed a plan to 'throw' the argument on the mandate, and defend everything else. I'm not the only blogger who has considered that, either.
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