Did Democrats Unwittingly Sabotage Health Reform?

| Tue Feb. 1, 2011 11:18 AM EST

A closer look at Florida Judge Vinson's ruling against federal health care reform shows that he relied on the Obama administration's own defense of the law to justify his decision. As Reason's Peter Suderman points out, the Florida judge cites the White House's own defense that the mandate is absolutely "essential" for the rest of the law to work:

The defendants have acknowledged that the individual mandate and the Act’s health insurance reforms, including the guaranteed issue and community rating, will rise or fall together as these reforms "cannot be severed from the [individual mandate]." As explained in my order on the motion to dismiss: "the defendants concede that [the individual mandate] is absolutely necessary for the Act’s insurance market reforms to work as intended. In fact, they refer to it as an 'essential' part of the Act at least fourteen times in their motion to dismiss." [Emphasis added.]

In fact, in recent weeks, Democratic defenders of health reform have only become more vocal about the catastrophic consequences of removing the mandate as conservatives have zeroed in on the provision. Independent analysts have confirmed as much, explaining that premiums would skyrocket and the insurance market would descend into chaos if the mandate were removed while the other provisions were kept in place. "Essentially, the administration's lawyers argued that the health care law wouldn’t work without the mandate, and Vinson took them at their word," Suderman sums up.

Vinson seems to be taking the Obama administration's argument at face value—and refusing to go any further. In the wake of the first federal ruling against the law in December, reform's supporters argued that there were, in fact, ways to salvage the rest of the legislation without the individual mandate. As I reported at the time, "One would be an opt-out rule that would allow people to forgo insurance, but which would offer the benefits under health reform to those who chose to be covered—including government subsidies to buy insurance and regulations that would prevent them from being denied coverage." Such fixes wouldn't be easy, but they aren't out of the question. And while most Democrats haven't focused on such fixes in hopes of gaining support for the mandate itself, moderates like Sen. Claire McCaskill (D-Mo.) have been more vocal about such alternatives. Vinson, by contrast, has chosen the most fatalistic interpretation of the Democrats' remarks on the mandate to bolster his case for tearing the whole law down.

That being said, when it comes to Vinson's fundamental reason for knocking down the entire law, there's little question that the Democrats unwittingly handed him a key piece of ammunition. A year ago, when Sen. Scott Brown's election in Massachusetts imperiled the entire reform bill, with a key vote lost in the Senate, Democrats resorted to a rushed reconciliation process to salvage it. In doing so, they ended up forgoing some key steps in mistake-proofing the legislation—and forgot to put in a "severability" clause that would allow any single provision to be removed without imperiling the rest of the law. The omission has now given a potent legal weapon to tear down the entire law—one that Vinson readily employed. Read Slate's Dave Weigel for more details about the Democrats' potentially fatal flaw.

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