Yuval Levin believes that “the individual mandate is probably done for”:
I would now assume that no one will pay the individual mandate fine for 2014. The administration may give up on the mandate in the course of the ongoing enrollment period if the political pressure is great enough, or they may keep up the pretense of it through the end of the enrollment period in March (when it will have finished its work, so to speak, since its purpose is to influence choices made during that period) but then exempt everyone from it as they did with the employer mandate for this year. Having now exempted from the fine people whose policies were canceled and who haven’t spent the money to get more expensive and less appealing new coverage, the politics of still applying the fine to everyone else who is uninsured this year will probably just not be sustainable, and the politics of exempting people from it (especially if they can hold out on doing so until after March 31) will be far too appealing for this White House to resist. They may claim the mandate will be back in 2015, but if they do exempt everyone from it in 2014 it will be hard to bring it back.
If the administration had been resolute in the face of early complaints, and had stuck to the rules it wrote before October, then it would be in a stronger position to deny the next round of complainers. But it hasn’t.
And each round of special exceptions makes denying the next one harder: “The president was willing to help them, but not us! What’s wrong with us? Doesn’t the president care about people like me?” When you stick to the rules for everyone, you are not making any particular statement when you enforce them in an individual case. But when you start carving out exemptions on the fly, each individual case becomes a referendum on how much the Barack Obama administration cares about [the middle class/small-business owners/writers/early retirees/insert your group here]. And the president cannot afford to tell anyone that he doesn’t care about their problems. So I find it hard to believe that the mandate, or the clawback of overpayments, or any other rule that might upset people, will be enforced for 2014. And of course, that makes it more likely that none of them will be enforced, ever.
The one thing that could still be a huge blow to the law is a full delay of the individual mandate, which HHS could maneuver by expanding the recent “hardship exemption” to include those who were uninsured. I’m not confident that’s off the table yet—especially considering that some state exchanges are still struggling—but if the administration does offer a blanket delay, I don’t think we’ll see it until the end of open enrollment. The reasons are both pragmatic and strategic: we can’t know the extent of “hardship” until enrollment wraps, but we also know that people tend to sign up just under the wire. Massachusetts illustrated this, and so did enrollments before the “soft deadline” this week, if the limited data we have so far is any indication.
A one-year mandate delay is also something the exchanges could probably recover from. I’m more bullish on this than others, but that possibility was the original context of my “risk corridors” post; the risk adjustment mechanisms are in place for three years. Moreover, the penalty is weak enough in the first year ($95 or 1% taxable income, whichever’s higher) that I’m not sure that enrollment will be meaningfully different with or without a mandate in the first year. This is doubly true if a mandate delay were to be announced late in the game, when most of the people who would have signed up will have signed up.