Columns » Ernest Dumas

Back to 1936

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The big Republican health-insurance victory in a Virginia federal court last week either brought the party home to its roots or illustrated its dual-personality disorder. Take your pick.

Either way, it offers the quaintest political irony of the times. The mandate in the new health-insurance law for people to obtain medical insurance was an idea born in the Republican Party and resisted by Democrats for decades. Barack Obama himself, when he was running for president, opposed the idea and was hammered for it by Hillary Clinton, John Edwards and the other Democratic candidates, who had come to believe that nothing but the Republican plan could be enacted.

But when the Democrats and the new president capitulated last year and embraced the Republican mandate, even Republicans who had fought hardest for it — Sens. Charles Grassley, Orrin Hatch, Christopher Bond, Richard Lugar and Robert Bennett, to name the five senators who were among the sponsors of the insurance-mandate bill in 1994 and are still in the Senate—fled. Now they all denounce the idea as big-government socialism, and they celebrated when the Bush-appointed judge ruled that the commerce clause did not permit the government to tax people who refused to get insurance and large businesses that refused to offer it.

Here is an illuminating exercise. Go back and compare the 1994 Senate Republican health-care bill, offered in competition to the Clinton reform bill, and observe how much the new law mirrors it — in vast detail, actually. The Republican leadership and some of the most conservative Republican senators, like North Carolina's Lauch Faircloth, signed on to it.

The other irony is that if the four diehard Republican Supreme Court justices persuade Justice Anthony Kennedy to join them in striking down the individual mandate, what is left really can be called "Obamacare."

The notion that everyone should be required to obtain insurance, principally through their employers, began with President Richard Nixon.

Now the Republican Party has retreated to 1936, when it fought the Social Security law, which required people to buy old-age and survivors insurance and pay for it with a payroll tax and taxed employers to pay for unemployment insurance.

They took the issue to the Supreme Court, arguing that the Constitution's allowance for the government to regulate interstate commercial activities did not extend to making people and businesses buy old-age insurance and unemployment insurance. The day the court handed down its decision upholding the law was one of the most dramatic in the court's history. Conservative justices appointed by Presidents Harding, Coolidge and Hoover had been striking down one Roosevelt recovery law after another on the ground that it flouted the commerce clause. But one of them blinked and reversed his theory about the commerce clause.

If he hadn't, we wouldn't have Social Security today and probably not Medicare. Grinding poverty among the elderly would still be epidemic.

Medicare is most analogous to the debate over the new law. If the 2010 law is unconstitutional, Medicare is imperiled, too. Republicans fought Medicare but many of them crumbled on the final roll call and they didn't challenge it in court.

Congress required people to buy hospital insurance through a new payroll tax. Now they can buy it from the government or from an insurance company.

Uninsured people can opt out of buying a health policy under the 2010 law but they will have to pay a tax—it's called a penalty in the act—which will be only $98 in 2014 but will rise in succeeding years. People can opt out of participation in Medicare, too, but if they do they will pay a heavy penalty when they do decide to join, when they get sick and need it. Ninety percent take it.

Perhaps the new law would be more immune to challenge if Congress had simply reversed the order that the mandate and the tax appear in the act: Levy a tax to support universal health care but then allow people to opt out of the tax by buying insurance.

There are liberals who argue that the Medicare approach — letting people opt out of buying insurance but imposing a heavy premium when they do decide to join — would come closer to achieving universal coverage than the mandate. The insurance industry thinks the penalties for not buying insurance are so small that many will just pay the tax and wait until they are sick to buy insurance or else continue to fall back on charity care as they do now.

The Republicans hope, if I read them correctly, that if Roberts & Co. at the Supreme Court strike down the mandate they will go ahead and obliterate the whole law, and if Medicare falls in its wake, so be it. They are back to 1936. Health care is only for those who can easily afford it.

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