The Thanksgiving message President Obama should have given about the Affordable Care Act in 2009

Josh Blackman | Author, Unprecedented

My fellow Americans. In a few short weeks the Senate will release the Patient Protection and Affordable Care Act. The Senate is expected to hold a vote on Christmas Eve.

Let me be clear.” There is a lot of misinformation being spread about health care reform. Those “naysayers and cynics” on the blogs and talk radio and cable news want you to believe that the ACA will make your insurance more expensive. They want you to think you won’t be able to keep your health insurance policy and your doctors. They are not telling you the full story. “I know there’s been a lot of misinformation in this debate, and there are some folks out there who are frankly bearing false witness.” So let me take this opportunity, as families gather together on this national holiday, to clarify how this important law operates.

First, the government is not forcing you to buy broccoli. That’s crazy. Rather, the Affordable Care Act requires people who can afford to buy health insurance, to buy health insurance. This obligation is enforced through an “individual mandate.” Now it is true I was not always a fan of the mandate. Remember in 2008, Senator Clinton supported the mandate and I opposed it. I said that Clinton’s individual mandate would “have the government force you to buy health insurance, and she said that she’d consider ‘going after your wages’ if you don’t.” Also, recall that during a debate with Senator John McCain, I said that under my plan that “there’s no mandate involved” and the penalty would be “zero.”

Since the election, my thinking on this important topic has evolved. I have hired most of Clinton’s health policy team, and admitted, “I kind of think Hillary was right.” But we can’t look backward. We must look forward.

I now realize that imposing an individual mandate into the law is necessary to support the entire system. It’s the only way to make healthcare reform work.

Now you may say that I did not run on the mandate in 2008. That may be true. But look, we have a serious problem here. Our system is broken. Let me be clear. With this administration, it will not be “politics as usual.” We have “a core ethical and moral obligation,” to get this done. “Don’t bet against us.”

Second, throughout the past several months, I have repeated over, and over, and over again, “If you like your health insurance plan, you can keep it.” This is true. But, I now realize that my message was not as clear as it could have been.

Look at it this way. Our healthcare system is broken. There are over 40 million people without insurance. At the same time, it is not fair for some people to have very generous plans that are subsidized by employers. Further, it is also not fair for young and healthy people to have cheap, bare-bones plans that do not contribute to the insurance pools. What we need is a way to equalize things.

So, under the Affordable Care Act, generous health insurance benefits, so-called “Cadillac plans,” will be heavily taxed to create incentives for your employer to drop them, so you will be forced to buy normalized insurance on the health care markets. Bare-bones plans that only cover catastrophic needs will not be compliant with the ACA. If you have one of these, particularly if you are on the individual market, it will be cancelled. Plus lots of other modest plans will also be cancelled. (We estimate this will affect at least ten million Americans.) If you do not have insurance, and you can afford to buy it, we will penalize you if you decide to go uninsured. We cannot maintain the “status quo” of the broken healthcare system.

This is a large part of how the ACA will fix this national problem. We need you, especially young and healthy people, to purchase more comprehensive, and more expensive plans, so you can subsidize the risk pools, and make health insurance more available for our fellow Americans who need it the most.

In order for the forty million uninsured Americans to gain insurance, the rest of us must sacrifice a bit of what we have. So yes, tens of million of plans will be cancelled. Employers will drop coverage, and force people onto the exchanges. While this may be a massive inconvenience for some Americans, our moral obligation to those less fortunate compels us to take this action and move forward. We promise it will be easy and affordable to buy new, more comprehensive coverage. And if our plan works, it “will finally reduce the costs of health care.” When “you spread the wealth around, it’s good for everybody.”

It is pivotal that the American people and their representatives understand this critical social compromise before the law is voted on. We should tell the American people where we are headed. A frank discussion on these issues is essential to an informed debate on healthcare reform. We all have to be in this together for it to work.

Third, during my presidential campaign, I promised not to raise taxes on anyone but the wealthy. I have stuck to this pledge, and assured you that the Affordable Care Act does not impose any new taxes. This is absolutely the truth. The drafters in Congress have gone out of their way to call the enforcement mechanism of the ACA a “penalty.” How does it work? You have to buy insurance, and those who do not will have to pay a penalty. The statute is clear as day. Now, you may ask, why do we need this penalty? Well, we have to make sure that young and health people share their responsibility to care for those in need (in the statute it is called the “shared responsibility payment”).

But let me be clear. This law is perfectly constitutional. Don’t mind people telling you this law is unconstitutional. These fringe ideas are ‘off the wall.’ Our constitutional experts have looked at this law from top to bottom, and have assured me that the Supreme Court will uphold it 9-0. Congress clearly has the power under the commerce clause to penalize people for not buying health insurance, and regulate one sixth of the American economy. Making someone buy insurance is no different from telling someone to stop growing wheat or marijuana.

Though, technically it does not need to be a tax. When the law is challenged in court, there is really no reason why we can’t defend the law as a tax. In fact, in order to win the case, we can even tell the court that there is no mandate, and rather the ACA places a tax on those without insurance. Of course absolutely no one understood the law to operate in this manner when it was drafted. No matter that Congress went out of its way not to call it a tax. No matter that constitutionally, taxes must originate in the House of Representatives, while the ACA clearly began in the Senate. The Department of Justice will zealously defend the ACA as the need arises.

During this holiday season, I want you to rest assured during that health insurance reform in the best of hands. The team at the Department of Health & Human Services, under the leadership of Secretary Kathleen Sebelius, is preparing the infrastructure that will allow you to obtain affordable health insurance. In fact, they are already laying the groundwork for the launch of Healthcare.gov in about four years. It will work just like Amazon or Kayak, and make it simple to shop and compare health insurance policies, at subsidized rates.

The methodical and careful manner in which we implement this important law should give confidence to everyone that the federal government has this program entirely under control.

In conclusion, while the short-term effects of health care reform may be tough medicine, I promise in the long term we will all be better off. This law will fundamentally change how health care is provided in this country. This is a shared burden that we must agree to shoulder together, on this day when we give thanks for our blessings.

Thank you, and have a joyous Thanksgiving.

Josh Blackman is a Constitutional Law Professor at the South Texas College of Law in Houston, and the author of Unprecedented: The Constitutional Challenge to Obamacare.

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