The benefits of triggering a repeal of the individual mandate as part of debt deal 

A number of conservatives have trashed the $3 trillion deficit-reduction deal reportedly the works between President Obama and House Speaker John Boehner, R-Ohio (even though both sides deny any deal).

The component of the supposed deal as reported by the New York Times that’s getting the most attention is an agreement to create a mutually painful trigger if the parties can’t agree to tax reform in 2012 – taxes would go up on the wealthy and the health care law’s individual mandate would be repealed.

Redstate’s Erick Erickson argued that striking such a deal would short-circuit the effort to overturn the entire law in the U.S. Supreme Court, while our own Conn Carroll wrote it would neutralize two of the biggest arguments against Obama – the debt and the health care law – without doing anything for Republicans.

With the obvious caveat that I reserve final judgment until I have more details, I’d have to say that such a trigger would be better than they suggest for conservatives, which is why I can’t imagine that Obama and Democrats would agree to it.

If this goes through, it would set up the following scenario for Republicans. Either they stand firm on no tax increases, Obama yields, and they get revenue neutral tax reform. Or, alternatively, Obama wont yield on increasing taxes. So then Republicans realize, if taxes are going to have to go up anyway, they may as well let the trigger get pulled and repeal the mandate.

Erickson’s argument might be more convincing to me if I had a lot of faith that Justice Anthony Kennedy would strike down the entire health care law. And of course I’d love to see the Supreme Court impose the necessary guardrails on the use of the Commerce Clause. But as things stand, it’s a 50-50 proposition as to whether the mandate alone gets overturned, and the odds that there are five votes to strike down the entire law are tiny. This deal would give Republicans a choice to guarantee the mandate gets overturned.

I’m reminded of one episode of "The Twilight Zone," in which Rod Serling describes a character as “a man protected by a suit of armor all held together by one bolt.” The mandate is the bolt holding together the health care law. Obama knows that the mandate is politically unpopular – which is why he opposed it during the 2008 campaign -- but he also knows it’s an essential component of his vision for universal health care, which is why he reversed himself as president and his legal team is furiously defending it in court as essential to the law.

If the mandate fell, it would unravel the insurance regulations, most notably, the requirement that insurers cover those with pre-existing conditions. While repealing the mandate would require 60 votes in the Senate, Republicans could repeal the major spending provisions through the reconciliation process with just 51 votes if they took over the Senate and had a Republican president.

There’s no way that Obama would put his biggest accomplishment at risk, so I can’t see this deal actually happening.

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Philip Klein

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