Many of us have suggested that the employer mandate, which the Obama administration is delaying for a year, isn’t a crucial element to making the law work. Cato scholar Michael Tanner has a killer reply: “If the provision is so unimportant, one might wonder why it was included in the law in the first place, given its potential for reducing employment.” Well, then I guess Michael Tanner has proven that every single provision of the Affordable Care Act is essential to the entire thing. Why would it be in there if it wasn’t absolutely necessary?
It’s surprising to encounter such naïveté in a professional policy analyst, let alone one of staunch anti-government bent, but here goes: Sometimes laws contain provisions that are not essential to their central purpose. (I hope this revelation does not so sadden Tanner as to make him even more dogmatically anti-government than he already is.) Some of those extraneous provisions served useful ancillary purposes. For instance, Obamacare requires restaurant menus to label calories, a helpful health-related measure, but one that could be removed without harming the main functions of the law.
Other provisions got inserted because a particular senator wanted them in there. The CLASS program was inserted at the behest of Ted Kennedy, even though Obama didn’t want it in the bill, and later agreed to repeal it. The employer mandate is another provision insisted on by some senators but which many advocates of the law argued at the time was a terrible idea. Obviously, if you liked the law as a whole but disliked that provision, then it probably wasn’t an essential piece of it.
This kind of simplistic confusion isn’t limited to Tanner. The entire Republican case against the law is grounded in erasing the distinction between essential and nonessential pieces of the law. Yuval Levin, in a post titled “Delaying Obamacare” — as if Obama was delaying the entire law — gloats: “The administration’s brazen disregard for and denial of plainly evident problems with Obamacare has been absolutely central to sustaining the morale and dedication of the law’s defenders.” Right, so apparently the only basis for supporting the law was the belief that every single piece of it was perfect! Even though its supporters all argued repeatedly and extensively to the contrary.
Meanwhile, House Republicans are proposing to delay the individual mandate for a year. The individual mandate, unlike the employer mandate, is an important piece of the law — its absence wouldn’t make the entire thing fail, but it’s an important part. Boehner’s pseudo-populist rationale for this gambit is that “[w]e should be thinking about giving the rest of America the same exemption that Obama last week gave businesses.” Of course, individuals also get extensive subsidies to make insurance affordable, which is why the individual mandate is not an onerous burden. The Republican show-vote on the individual mandate is a clever way to force Democrats to vote on the least popular provision in it. But basically it’s a ruse based on exploiting people’s failure to understand how this law, or any law, works.
