Like most of the right's complaints about the Obama administration's implementation of the Affordable Care Act, the most recent is couched in the darkly toned language of conspiracy. Where Republicans have described past tweaks and delays as evidence of corruption or imperial overreach, they now claim that the administration has delayed or nullified the law's individual insurance mandate "in secret."
“The fact that the Obama Administration threatens to veto Congressional actions that mirror what they are secretly doing is embarrassing," claimed House Majority Leader Eric Cantor.
It's strange, because for once they have a point. The individual mandate is riddled with loopholes large enough to drive just about every uninsured person in the country through. It even troubles some of the law's most steadfast supporters. But it didn't happen in secret or as an outgrowth of some nefarious plot. It's been there for all to see for months. And though the administration can perhaps be faulted for not advertising the weakness of the coverage requirement, conservatives aren't obsessing over it now out of some principled commitment to transparency, but because they hope that just by talking about it they can destabilize the law at its core.
The Wall Street Journal kicked off the festivities this time with a confusing editorial called "ObamaCare's Secret Mandate Exemption." By the Journal's account, the Obama administration effectively delayed the individual mandate "last week," by making the standards for obtaining a hardship exemption too lax -- and then "buried" the delay in a rule allowing some people whose insurance policies were canceled last year to keep their old plans.
But there's nothing new here. The standards (PDF) are undeniably lax -- one of them even exempts anyone who "experienced [a] hardship in obtaining health insurance," and asks that said individuals "Please submit documentation if possible." But they have been public for months. Here's a Business Insider article about them from back in December.
I don't know if Republicans just missed this back then, or are bringing it up now to help build support for their new plan to delay the mandate for five years. But I do know they want everyone to be aware of just how easy it is to avoid the penalty for skipping Obamacare.
And here's where the question of whether the administration has secretly "delayed" or "negated" the mandate becomes a kind of metaphysical paradox.
The exemptions are clearly very broad -- "much broader than I would consider reasonable," emails healthcare reform expert and Obamacare supporter Timothy Jost. Not only do they create a loophole for anyone who claims, rightly or wrongly, that they were unable to find a workable plan. But, they seem to apply to anyone who wasn't able to obtain insurance in any market. "It seems to me that people could argue that employer coverage was unavailable and therefore they should get an exemption, even though they hadn’t checked on exchange coverage."
But an exemption is only useful to exempt individuals if they know it exists. Its effect on people's behavior is linked to public awareness. If a tree falls in the forest it probably makes an incredibly loud crashing noise, even if no one's around to hear it. But if the D.C. government suspends parking rules for a day, and doesn't tell anyone, everyone will still obey the posted signs (except maybe a bunch of people who live in Northern Virginia).
This probably explains why the administration didn't broadcast the fact that just about anything counts as a hardship to the public. They don't want a bunch of motivated beneficiaries to drop out and claim an exemption. In that sense he mandate can't be secretly undone -- if it's undone in secret, then it's not actually undone. But it also explains, or helps explain, the GOP's sudden interest in this not-so-secret non-delay of the individual mandate.
The more publicity the loopholes get, the more people will exploit them. And that will simultaneously make the law more unstable, and undermine Obama's objection to actually delaying the mandate statutorily. Republicans want to delay it for several years and bank the savings to make sure Medicare physicians don't experience a big pay cut. Their plan would leave 13 million fewer Americans without insurance -- and thus would effectively take money from some doctors in order to pay others. For those and other reasons, Obama will never agree to it.
Indeed, Obama is opposed to legislatively delaying the mandate under pretty much any circumstances, despite the fact that the law's supporters worry that it isn't toothy enough as is. After all, a weak mandate might not work as well as a strong one, but it'll work better than none at all, particularly if relatively few people know how flimsy it is. That was the story in Massachusetts under Romneycare and things worked out pretty well. But Republicans don't want Obamacare to work out pretty well. They want it to fail. And to precisely that end, they want as many people as possible to be aware.