How Obama Can Delay the Individual Mandate

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Photo: Joe Raedle/2013 Getty Images

Republicans have made a lot of demagogic, false, callous, and misleading claims about Obamacare, but John Boehner said one thing that actually makes sense: “How can we tax people for not buying a product from a website that doesn't work?” Boehner is referring to the individual mandate, which is a tax on people who forego health insurance (and lack one of the exemptions). Penalizing people for failing to buy a product that’s really hard to buy is pretty unfair, and even though there are ways to buy insurance without using the website, the website is the main mechanism by which consumers can comparison shop.

At the moment, the failure of the websites is no big deal. Coverage doesn’t even begin until January 1, and open enrollment lasts through March, so nobody really has to sign up until late November. Just this morning, I advised a relative who needs insurance to wait until December, in fact. But if we get to December without fixing the website problems, then some version of what conservatives have been demanding — a delay of the individual mandate — actually makes sense.

Now, when I say "some version," I don’t mean the thing conservatives have been demanding. The conservative goal is utterly clear, and they don’t always bother to hide it. Conservatives want to destroy Obamacare. They are certain it will fail, there is no conceivable outcome that would fulfill their definition of success, and they are determined to vindicate their predictions of doom. The conservative demand to delay the individual mandate arises out of the general right-wing attack on the law. The mandate is part of making the law work, and delaying it, for them, is the next best thing to repeal — a delay can be used to justify another delay, and another, until they have the votes for a permanent repeal.

Here, though, is the kind of individual-mandate delay that would make sense. It would apply only to those states lacking a functioning website. (States that established their own exchanges are, in general, experiencing much better functionality than the states that boycotted their exchange and relied on the federal government to set up a site for them.) The delay would be tied to the workability of that state’s website — no reason to delay California’s individual mandate just because people in New Jersey can’t log on. And the process for making this determination would have to rest with the Department of Health and Human Services, or some other body that is trying to make the law succeed, not one that’s trying to destroy it.

Note that the individual mandate in 2014 is only a token $95 annual tax. Its main purpose is as a signaling device that everybody should get covered. (Republicans want to repeal it for this reason: to send the signal that people should avoid getting covered, so that the exchanges fail to attract customers and collapse in an actuarial death spiral.) A targeted, well-designed mandate delay could avoid these problems, by signaling when and where the exchange websites are actually up and running.

Would Republicans go for a deal like that? Probably not. They have spurned any tweak designed to improve the law’s functioning, embracing only changes designed to cripple it. The main priority for the Obama administration is to fix the websites, and given the administration’s apparent shock at their failure, it’s hard to have confidence that they have a real handle on the depth and scope of the problem. Previous new programs endured terrible delays and malfunctions at their outset, and if the problem is quickly fixed, the initial failure will be forgotten. But if the administration can’t fix its web problem quickly, it needs a better answer.