Though Republican lawmakers now vilify the individual mandate for health insurance coverage as unconstitutional, the provision has long roots in conservative health care philosophy and has been supported by such GOP presidents as Richard Nixon and George H.W. Bush.
Republican administrations were among the first to embrace the concept of forcing individuals to buy coverage. Nixon -- hoping to stave off the single-payer ethos of many congressional Democrats -- explored the idea in the 1970s, though Republicans now dismiss those discussions as the byproduct of a moderate president searching for a domestic policy victory.
Less than two decades later, in what remains an unexplored chapter of health care history, a surprising supporter of the individual mandate was George H.W. Bush. According to contemporaneous reporting, Bush used "the tax system to 'encourage and empower' individuals to buy health insurance and would enact insurance market reforms that make it possible for everyone -- even if they have pre-existing health problems -- to get insurance." In short: individuals would be mandated to buy catastrophic health insurance. The cost of that coverage would be tied to income, meaning that the poorer you were, the less expensive your policy would be.
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The idea never made it far.
"Dick Darman, who was then head of [Office of Management and Budget], was the person most intrigued by the idea and the administration did put together some kind of plan but it never got introduced in Congress, because they didn't think it would go anywhere in the Democratic Congress at the time," recalled Mark Pauly, a noted health care economist at the University of Pennsylvania. "At the time the alternative was thought to be single payer and whatever Senator Kennedy had in mind, which was more or less a single payer kind of view. Conservatives didn't support that. But they were taking the premise that everyone ought to have insurance."
As Pauly remembers history (and as has been comprehensively documented), the notion of an individual mandate was once in vogue among conservative thinkers. Following the Bush plan, the policy came to define the counter-proposal to President Clinton's health care overhaul in the early '90s. After falling off the radar for several years, it was resuscitated, philosophically by Gov. Mitt Romney in Massachusetts and then found further Republican intellectual support in the Senate in the form of a bill drafted by Sens. Ron Wyden (D-Ore.) and Bob Bennett (R-Utah.).
Pauly says that it is "distressing" for the mandate to now be deemed unconstitutional by some of those same Republicans. It also seems a bit brazen.
Take, for instance, the Heritage Foundation, which made a big splash this past year by condemning Obama's proposal as unconstitutional, hosting events with Republican lawmakers and theorists who repeated that mantra.
Back in 1989 and then in 1993, however, the same conservative institution authored a major proposal based strongly around the individual mandate. Titled the "Consumer Choice Health Plan," the policy was actually analyzed by the Congressional Budget Office, which summarized the premise as follows:
In order to guarantee universal health care coverage, everyone would have to obtain insurance, either through a government program or from a private insurer, on their own or through a family member. The states would be charged with enforcing the mandate and would have to arrange coverage for people who did not do so themselves. The minimum insurance would cover "catastrophic" health care expenses--that is, those exceeding $1,000 a year for an individual or $2,000 a year for a family. (Those amounts would be adjusted for inflation after 1997.)
This is, in short, the basis for what Bush proposed during his administration, Romney pushed as governor, Republican senators co-sponsored with Wyden and Obama built off of for his own policy. Only with the latter did Heritage express concerns about constitutionality.
Asked to explain these new legal concerns, the group's Director of U.S. Senate Relations, Brian Darling urged the Huffington Post to "speak with somebody who wrote those papers... because we have been very clear that the individual mandate is unconstitutional."
The authors of the paper promoting the individual mandate -- Stuart Butler and Edmund Haislmaier -- both remain scholars with Heritage. Reached separately by phone, they defended their work as a product of different political times, argued that their ideas were substantially different from what Obama made law (the difference between levying a tax on those who don't buy insurance and denying them subsidies) and explained that their views on the mandate have evolved.
"I came to the conclusion, I suppose maybe five or six years ago, that it really is better to go through a combination of automatic enrollment, subsidies and high risk pools where the default is you are insured," said Butler. "I'm just not real keen with laws being passed saying that you have to buy insurance... My position evolved. People change their views. I'm 62, I'm old enough to change my views."
And yet, even granting that one's views evolve over time, the fundamental question remains the same: Is requiring people to buy insurance -- which Heritage once championed and now opposes -- an illegal act? Neither Butler or Haislmaier would take the bait.
"That's not why my views changed," said Butler. "I'm a health care scholar. I'm not a constitutional lawyer."