It’s Official: the Supremes Will Decide on the Mandate. Smack in the Middle of the Presidential Election.

On Monday the Department of Justice confirmed that it did not request a review of an appeals court’s decision to overturn the ACA’s individual mandate. The decision ensures the Supreme Court will rule on the mandate sometime in June of 2012: just months before the Presidential election. 

My thinking up until today was that health reform wouldn’t play a prominent role in the election; it’s all about jobs and the economy.  But a decision coming in the heat of the campaign could escalate the issue for voters. The ACA is one of the most contentious and visible ways the President differs from his Republican rivals. A decision by the Supremes either way — that the law is a valid exercise of Congress’s power or an unconstitutional overreach — could have political effects neither side can predict. 

I remain convinced the Supremes will uphold the mandate — legal precedent is well-established that the Congress can tax interstate commerce and even “inactivity” like refusing to buy health insurance.  And if it’s struck down, there are several other mechanisms by which Congressional Democrats can achieve the same effect of getting the maximum number of uninsured Americans into the insurance pool of the exchanges, like “auto-enrollment” with an opt-out and penalties for late enrollment like we have in Medicare Part D. 

Either way, the Republican field must be thrilled about the timing, and the President’s spin team will use the decision as an opening to tout reform’s successes to date — like 2.3 million twentysomethings already allowed to stay on their parents’ insurance until age 26 — and the promise of coverage for 32 million uninsured in 2014.

The individual mandate doesn’t get a lot of love. It polls horribly, is thought by many to be unconstitutional and, from a policy perspective, is tagged as too weak to push Americans into buying coverage. But let’s remember that last month there was new evidence that the mandate could work: 76% of the uninsured say they would rather purchase insurance than pay the law’s penalty.  That would reduce the number of people without insurance to 5% of the population and have 25 million Americans purchasing through the exchanges, just slightly higher than the 24 million that the CBO projected.

This is surprising – and it isn’t. On the one hand, health reform’s penalty for not purchasing health insurance – which will rise to $695 by 2016 – is a lot less than the cost of buying health insurance coverage. But on the other, Massachusetts – the only state that has implemented an individual mandate – has seen high uptake.

One other interesting finding to point out here: those with the lowest incomes turned out to be the most likely to comply with the mandate.  That bodes well for a sop to Obama’s base when the Supremes make their call next summer.  But again, it’s impossible to predict the effect the Supremes will have on the 2012 elections, so hold onto your backside next summer.