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Casey Mulligan: The Employer Mandate, Dukakis All Over Again



Last week’s adjustment to the employer mandate represents another battle in the political war of attrition between employers and those who want to carry out the federal health reform law. A similar war was fought in Massachusetts in the years after the Michael Dukakis administration and continued for decades.

In 1988, Governor Dukakis pushed through a law (not to be confused with the health law signed by Gov. Mitt Romney almost two decades later) that sought to achieve universal health insurance coverage in Massachusetts with a legislative package that included a $1,680 penalty per employee per year on employers who did not provide health coverage to their employees.

The Dukakis package passed by a narrow margin; to get it through the legislature, the law provided for a 45-month delay before the employer mandate took effect. (I recommend a book and a paper by John E. McDonough chronicling his health reform efforts as a Massachusetts legislator.)

Forty-four months after passage, the Massachusetts mandate was delayed three more years by a new law passed by the legislature over Gov. William Weld’s veto. The employer mandate was delayed twice more. As the fourth date approached for carrying out the 1988 employer mandate, the legislature repealed it entirely.

The employer mandate would return again in 2006 under Governor Romney, with its penalty set at one-tenth that of the Dukakis law.

These events are shown in the timeline below. Red shapes are dates of legislation and blue shapes are dates for putting the legislation into effect. The Massachusetts timeline is on the left, and that for the federal Affordable Care Act, which was passed in March 2010, on the right. (For both laws, month zero is when the law was passed). The timeline for the Affordable Care Act has a number of parallels with that of the Dukakis law. Both laws originally provided for an employer mandate delay: 45 months in Massachusetts and 46 months for the federal law.


In both cases, the employer mandate was delayed as the original effective date approached and businesses complained. The first federal delay was announced in the 40th month subsequent to the original law; the first Massachusetts delay was enacted in the 44th month.

In both cases, a second delay was announced, but it did not happen in Massachusetts until Month 80. Last week, already in Month 47 of the law, the federal government announced a second delay of the full employer mandate until January 2016 (which will be Month 70). So far, it looks as though a few employers will pay a reduced penalty as early as next January.

Both laws were passed when Democrats held the executive position and a majority in the legislature. In both cases, one-party rule ended soon after the health law was signed.

In Massachusetts, the legislature took the initiative to delay the employer mandate and carried out its decision as new laws. Federally, the Obama administration made the delays by notifying employers that the penalty either would not be enforced or would be enforced to a lesser degree than the original law specified..

The penalty amounts in the two laws are also similar. Adjusted for inflation, the Dukakis law’s penalty (federal tax deductible) was equivalent to a $2,791 penalty in 2014. The federal law’s penalty in 2014 would have effectively been $3,046 because it is not deductible from an employer’s business taxes.

One hundred months after the Dukakis law was passed, its employer penalty was finally repealed. If the federal law were to follow the same timeline, it would be repealed in June 2018, in the second year of a new presidency.



Casey B. Mulligan is an economics professor at the University of Chicago. He is the author of “The Redistribution Recession: How Labor Market Distortions Contracted the Economy.”

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Posted: February 19, 2014 Wednesday 12:01 AM