WASHINGTON -- President Barack Obama's administration has not developed plans for a legislative replacement for health care reform's most contentious provision should that provision be struck down by the Supreme Court.
While briefing reporters just days before the court begins oral arguments on the Affordable Care Act, White House Press Secretary Jay Carney was asked whether accommodations were being made should the justices rule that the individual mandate, which penalizes people for not purchasing insurance, is unconstitutional.
"I would refer you to [the Department of Health and Human Services]," Carney replied, "but not that I'm aware of."
The Huffington Post reached out to another administration official for further clarification. Asked whether legislative stopgaps were being crafted to replace the mandate, the official replied: "No."
The one-word response left the impression of an administration confident that the various components of its defining piece of legislation will ultimately be upheld. Lawyers representing the White House aren't even attempting to argue that the mandate is severable from the rest of the law, leaving it to the Court to make such a determination.
That said, operatives within the health care policy community have for months been conceiving of potential replacements for the mandate. Among the options being considered are an auto-enrollment system with an opt-out option, increased incentives for people to purchase coverage, or a post-facto penalty for people who require hospital services but don't have insurance.
"The challenge for progressives is how to construct health care legislation where you're dealing with the uninsured today and not remodeling the entire health care system if the Affordable Care Act falls," said Neera Tanden, president of the Center for American Progress, when asked, during a recent health care briefing what the response would be if the Supreme Court were to rule against the law or the individual mandate.
The Obama administration is intimately aware of these difficulties. And while Carney and others publicly insist no alternatives are in the works, top health care officials inside the White House are familiar with landscape that would confront them should the mandate be struck down.
When the president was campaigning in 2008, he opposed a full individual mandate, opting for an incentive-based model to compel the poor to purchase insurance. During the crafting of the Affordable Care Act in 2009 and 2010, aides to the president pored over the details of alternative plans before determining that the mandate was both the most effective option and the one mechanism that would pacify insurance companies, who demanded a influx of new customers in exchange for softening coverage requirements.
As of right now, no Democratic lawmaker has introduced a legislative substitute for the mandate. Rep. Pete DeFazio (D-Ore.) does have a bill that would allow people to avoid the mandate penalty if they also gave up the right to health care reform's consumer protections, but it wouldn't replace the provision altogether.
Should the mandate be severed from the rest of the law, it could facilitate a frantic search for a comparable replacement. Health insurers would certainly put pressure on lawmakers to help fill the void of new customers they had been promised. Whether House Republicans would push for full repeal of the law or seek a legislative fix for the mandate, is the major question.
Mike Sacks contributed reporting.
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