An artist's rendering of Solicitor General Donald Verrilli answering… (Art Lien / AFP/Getty Images )
For wont of the right word, will "Obamacare" be lost?
Some analysts are predicting the demise of the Patient Protection and Affordable Care Act, saying the Supreme Court will declare unconstitutional the law's requirement to buy insurance, then find the measure unsustainable without it. This is purely speculation, of course; the justices aren't expected to release their decision until the end of the current term in June.
Nevertheless, the back and forth in the courtroom this week -- and particularly the conservative justices' grilling of Solicitor General Donald Verrilli, the administration's principal attorney -- suggested that defenders of the law would have been on much more solid ground had they made two changes in the terms used to describe one of the core features of the act.
At issue are two aspects of the individual mandate, the requirement that virtually all adult Americans maintain insurance coverage.
First, calling the requirement a "mandate" reinforces the notion that the government is forcing people into the market for health insurance. Several of the conservatives on the court suggested that if the federal government had that kind of power, there would be no limit on what it could force the citizenry to do in the name of regulating commerce.
In recent weeks, the Obama administration and its Democratic allies have taken to calling the mandate the "individual responsibility provision." These words put the requirement into a much different context: It's about requiring people to show they have the financial wherewithal to cover the cost of the healthcare services they're likely to receive. It reinforces the message that people are already in the market for healthcare, and the mandate simply regulates the way they pay for what they consume.
Verrilli tried repeatedly to make this point, but Scalia pointedly insisted that the mandate regulated health insurance, not healthcare. Had the law framed the mandate as a requirement to demonstrate financial responsibility, Verrilli might have found it easier to win the argument over what market Congress was regulating and whether people were already participating in it.
Second, an early version of the measure called for the Internal Revenue Service to collect a "tax" from those who didn't comply. Democrats changed "tax" to "penalty" to avoid accusations that they were creating a new levy in the middle of a recession.
That might have been wise politically, but the justices' questions indicate that structuring the insurance reforms as a tax would have made it easier to defend the law. The Anti-Injunction Act would have barred anyone from challenging the tax's constitutionality until after the IRS started imposing it in 2015. And because Congress' power to levy taxes is extremely broad, anyone suing to block the law in 2015 would have faced an uphill battle.
Granted, simply calling something a tax doesn't necessarily make it one. So sponsors of the law might have been forced to take a somewhat different approach -- for example, by levying a tax on all Americans to fund subsidies for the purchase of health insurance, then offering an equivalent tax credit to people who maintained insurance.
Still, because lawmakers chose to enforce the individual mandate with a penalty instead of a tax, Verrilli was forced into making a difficult argument that the penalty wasn't a tax but that it was a constitutional exercise of Congress' tax power. That's not just a stretch -- it's a contortion.
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