For all the White House’s chest-thumping that the U.S. Supreme Court will rule in favor of the mandate requiring Americans to have health insurance or pay a penalty, you know they’re worried the justices will decide that Democrats trampled the Constitution—not once, but several times.  Given the recent Gallup poll claiming that 72 percent of Americans believe the mandate is unconstitutional, striking it down could be seen as an indication that average Americans have a better grasp of the Constitution than our “constitutional scholar” in the White House—a conclusion I certainly wouldn’t dispute.  Beginning March 26 the U.S. Supreme Court will hear five and a half hours of oral arguments over three days covering four constitutional questions raised by the Patient Protection and Affordable Care Act, or ObamaCare. The prospect that the mandate could be declared unconstitutional has the Obama administration and health policy experts scurrying to weigh the impact of such a decision.  It’s an odd twist, since as a presidential candidate Barack Obama opposed a coverage mandate, while Hillary Clinton supported one. Now his “signature legislation” may depend on it. Flip-flopping has its consequences.  Mandate supporters claim it’s necessary because ObamaCare requires health insurers to accept anyone who applies for coverage (known as “guaranteed issue”). The legislation also prohibits charging more for people with medical conditions, though insurers can make limited premium adjustments based on age, geographical location and tobacco use (known as “modified community rating,” as opposed to “pure community rating,” because some cost factors can be considered).  Without the mandate, they argue, many people would simply pay the penalty for being uninsured and get coverage only when they need expensive medical care. Translation: Since ObamaCare abandons every actuarial principle known to insurance, it must impose lots of government controls in the hope of making the albatross work.  Democrats are right about gaming the system, though it would largely be limited to the relatively small “individual” health insurance market, where individuals and families buy their own coverage (i.e., not provided by an employer). That’s because Medicare, Medicaid and employer-based health insurance—which combined cover the vast majority of Americans—are already guaranteed issue.  However, concerns over people gaming the system didn’t stop Democrats 15 years ago. During the 1990s eight states passed legislation imposing guaranteed issue and community rating on the individual health insurance market. The result was a disaster.  In 2005 the Chicago-based Heartland Institute, along with the Council for Affordable Health Insurance (CAHI, which I was president of at the time) published Destroying Insurance Markets, by Conrad F. Meier. In it Meier chronicled the impact on the individual market in each of the eight states—New Jersey, Vermont, New York, Kentucky, Washington, Massachusetts, New Hampshire and Maine.  New Jersey was our poster child for how not to reform health insurance. Since the state posted on its website the premiums for all of the available policies, it was easy to compare the rates. Between 1994, when the law went into effect, and 2004, the monthly premium for a Plan D ($500 deductible) family policy in the individual market exploded.  CAHI used to maintain a website asking the proverbial question: Which was cheaper in New Jersey: A family (Plan D) health insurance policy or leasing a Ferrari? Answer: a Ferrari.
The White House claims the health insurance mandate is necessary to make ObamaCare work; but the Supreme Court's job is to decide whether the mandate is constitutional, not ensure the legislation works.