More on Stuart Butler’s op-ed

I know Don covered it earlier this morning, but I wanted to get my two cents in as well. Butler tried, yesterday, to explain how his about face on the individual mandate was not a flip-flop. I want to spend a minute getting into his actual arguments so that people won’t be confused:

First, it was not primarily intended to push people to obtain protection for their own good, but to protect others. Like auto damage liability insurance required in most states, our requirement focused on “catastrophic” costs — so hospitals and taxpayers would not have to foot the bill for the expensive illness or accident of someone who did not buy insurance.

Let’s be clear. Some have said that the individual mandate is to prevent “free riders”. Others have said it’s to prevent “adverse selection”. Everyone agrees, though, that it’s a precondition to getting the insurance companies to accept guaranteed issue and community ratings.

But this is moot. Either the idea is unconstitutional, or it’s not. One of the arguments that the government is making in their case to the Supreme Court to support its constitutionality is that the mandate is there to “protect others” and prevent them from “externalizing their costs”. From the brief itself (h/t Kevin):

In sum, the uninsured as a class presently externalize the risks and costs of much of their health care; the minimum coverage provision will require that they internalize them (or pay a tax penalty).  This is classic economic regulation of economic conduct.


They also shift present risk to other market participants, which in monetized in the form of higher insurance premiums now, not later, for those with insurance.  The point of obtaining insurance is to internalize risk, which occurs when the insurance is obtained and the premium paid.  Conversely, the failure to obtain insurance externalizes risk, and that externalization occurs at the time the insurance is not obtained.

So unless Butler agrees with the government’s argument, I’m not sure how this explanation changes his view on the mandate. On to Butler’s next reason:

Second, we sought to induce people to buy coverage primarily through the carrot of a generous health credit or voucher, financed in part by a fundamental reform of the tax treatment of health coverage, rather than by a stick.

This is just semantics. As I’ve argued many times, you can do the mandate through a tax or a credit. If it’s a credit, you raise everyone’s taxes and then refund the money to them if they buy insurance. If it’s a tax, you merely make them pay the tax if they don’t buy insurance. The money in the bottom line is the same either way. In both, the government is using the tax code in order to get you to want to buy insurance. Finally:

And third, in the legislation we helped craft that ultimately became a preferred alternative to ClintonCare, the “mandate” was actually the loss of certain tax breaks for those not choosing to buy coverage, not a legal requirement.

This is just a blatant appeal to politics. The mandate was acceptable as an alternative to a policy they disliked. Now that this policy is no longer a worry, the mandate is bad. Surely, though, this can’t be the reason it became unconstitutional.

I completely support the right of an individual to change their mind. That’s why it’s totally ok (ie legal) for you to vote for something one year, and vote against it 20 years later. What you can’t do, though, is support something one year and declare it unconstitutional 20 years later. At least, you can’t do that without a powerfully persuasive legal argument, and an admission that you were supporting something illegal decades earlier. The reasons Butler gives here make sense if you’re arguing that the ACA is no longer your preferred policy, and you want to repeal it or change it. They aren’t very convincing if you’re trying to make the argument that the mandate is unconstitutional.

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