The Paradox of the Affordable Care Act and Public Opinion

When asked, over 7 in 10 Americans say the "requirement in the healthcare law [Affordable Care Act] that every American must buy health insurance or pay a fine" is unconstitutional.

Now we know that Americans are not constitutional law scholars. As was obvious from the argumentspresented at the Supreme Court on Tuesday, and by the differences in the types of questions asked by conservative versus liberal justices, there is no agreement even among the nation's smartest lawyers on the constitutionality of the law. But based on whatever bits and snippets of information the public has about the law and its individual mandate section, the substantial majority of Americans, when pressed, opine that it is unconstitutional.

This view is obviously not predicated just on Americans' overall views of the law, which -- in the same poll that included the question about constitutionality -- showed an even split on an overall "good thing," "bad thing" assessment of the law. In fact, with only 45% of the public saying that the law is a "good thing," it is clear that a number of those who think the law is OK (or don't have an opinion) still call its individual mandate provision unconstitutional.

A recent New York Times/CBS News poll on the law found a related pattern of responses from the public. The poll found that Americans -- out of all the provisions of the law tested -- were most negative about the individual mandate, defined as the provision of the law that "requires nearly all Americans to have health insurance coverage by 2014." In fact, the other three provisions of the law as tested in theNew York Times/CBS News poll were quite positively received -- including the 68% who said they liked the provision that allowed young people to ride on their parents' health insurance for a longer period of time, and the 85% who liked the provision that health insurance companies cannot turn one away from being insured as a result of pre-existing conditions.

The Kaiser Family Foundation March tracking poll tested 12 provisions of the law. The individual mandate ("The law will require nearly all Americans to have health insurance by 2014 or else pay a fine") was by far the least popular of all 12. Thirty-two percent of respondents said they had a favorable impression of that provision, while 66% said they had an unfavorable impression.

So, it might be possible that the American public would have a more positive opinion about the PPACA if it explicitly did not include an individual mandate, but did include some of the other provisions that seem to be popular. Maybe something like this could come to pass if the Supreme Court shoots down the individual mandate but leaves other provisions of the law intact. We'll know how that works out this summer when the court is scheduled to hand down its ruling on this case.

Striking down the individual mandate but leaving other provisions in the law intact would, of course, leave the law's supporters with still more problems. Namely, the fact that it is difficult to finance a number of provisions in the law without the individual mandate -- that is, coercing young and healthy Americans to pay for health insurance even though they are not likely to need it. This issue arises because there are level costs for health insurance across the age spectrum, unlike the costs for life insurance, which rise fast when one approaches the age point at which one has a higher probability of dying. No one has proposed forcing Americans to pay higher and higher premiums as they age. Therefore, the argument goes, it is necessary to force lots of young, healthy people to pay those level health insurance premiums to make up for the fact that older, unhealthy people are going to take out a lot more than they put into the system.

It is not clear if Americans fully understand all of these ramifications of trying to put this complex system together. It is also not clear, of course, that elected officials in Washington understand all of these ramifications, either.

But the takeaway point is that the healthcare experts who set up PPACA concluded that it was necessary to bundle many, many different moving parts of the healthcare system together in one giant conglomeration of provisions if the government is going to try to get involved in reforming healthcare in any sort of major way.
This "necessity of bundling" carries with it its own non-monetary, political costs -- in addition to the legal challenges now under way in the Supreme Court. One of these is the penalty that comes from any attempt to win public approval for a very large government social program that deals with vital parts of Americans' lives. That penalty arises from the fact that many Americans have a low, low opinion of the federal government as an entity, as well as substantial concern about over-regulation by the government. There is also the widespread attitude that more should be done by individuals and businesses and less by government, that the federal government is already too big and powerful, and that the federal government currently wastes 50 cents of every dollar it collects.

We are thus faced with a "Paradox of the PPACA." To attempt to fix some self-evident problems with access to healthcare and the cost of healthcare, experts in the federal government concluded that the federal government needed to go all out and bundle together a wide range of changes in the system. In particular, the experts decided that it was necessary to include the very wide-ranging individual mandate. But by bundling together the mandate with all of the other changes in the system, the federal government increased the concern and angst of average citizens who were already worried about the federal government's power and influence.

Hence the current public opinion stalemate. Americans don't like the individual mandate, but might be willing to support a number of the individual provisions of the law if they were passed individually and without the mandate. But, the argument is that it is not possible to pass the individual tweaks without passing the mandate. So, those in favor of the federal government's attempting to "fix" the nation's healthcare problems have a conundrum on their hands.

The Supreme Court's decision on the healthcare bill will, of course, set the context for where this all goes from here. But from the American public's perspective, the necessity to bundle means the necessity to have large government involvement, and that's a negative to enough of the public, it appears, to keep the healthcare law from reaching majority approval.