I am a lawyer, a libertarian and a liberal -- not necessarily in that order. I know, a libertarian lawyer is an oxymoron: like "jumbo shrimp" or apropos "consistent conservative." All three parts of me have spent the week confused over the health care debate. Not that the Supreme Court is willing to jettison decades of commerce clause precedent: four were appointed as precedent killing cruise missles. The problem, of course, is that Supreme Court Justices are intellectuals and lawyers before they are Republicans, making them more like Scud missles.
My confusion was the lack of imagination in analyzing the mandate. Let's face it liberals, including Candiidate Obama, oppose a Congressional requirement to buy insurance from corporations. However, a solution to the mandate problem exists -- one I have not heard offered elsewhere -- that satisfies ALL of me. Join me below the fold to see how the Court can kill the mandate without changing the Affordable Care Act.
Congress seems conflicted on the mandate too. Although the ACA requires all individuals to have health care insurance, bought or not, the law imposes no criminal or civil penalty for an individual's willful failure. The law does impose a "penalty" by requiring the individual to disclose her failure on her income tax return and to pay that penalty based on her income. However, the law restricts the government's ability to collect the penalty, even using the remedies available for failing to pay income tax. Why? Congress did not want to be accused of raising taxes on the middle class.
The lawyer in me views the mandate as like a legal requirement that I have clean water and clean air. Congress should not be in the business of advisory opinions disguised as law. If it mandates action by a citizen, it should impose a penalty on failure commensurate with that failure. As a citizen I can choose to spend 30 days in jail to unlawfully protest injustice. A mandate without a penalty is not a law!
Even this court does not question the ability of the government to impose a tax to pay for health insurance for everyone, i.e. Medicare for all. As a libertarian, I fail to see how striking down the APA, which Congress intended to be a less intrusive method of providing healt care insurance, increases my freedom. However, as a lawyer I recognize that practicality is supposed to reside in Congress and the President, not the courts.
One could say that being a libertarian and a liberal is inconsistent. Does not liberty require individuals to suffer the consequences of their bad choices, for example, failing to buy insurance while healthy? Leaving aside our moral duty to each other, providing basic health care and education to everyone who is here enriches my life. What will I miss if a child goes uneducated and opts for a life of crime or the next Steve Jobs dies early because his cancer is not treated?
Nor can I ignore the experience of a quarter decade of Type I Diabetes. Although I have prospered in my career (thanks to a public school education), I am not so arrogant as to believe that I am so amazing that I could never be out of work and without health insurance. I know that no amount of money I will accumulate from my 1% life will be enough if I lack health insurance.
The Supreme Court should strike down Congress' meaningless mandate (which was a Republican idea anyway). They should declare it unenforceable by a 9-0 vote. It is anyway. However, they should keep the rest of the law unchanged. The only economic penalty for failing to buy insurance should be called what it is: a tax and upheld as such. None of the rest need fall, because the analysis of the economics of the law should depend on concrete consequences --- not supposed ones. Congress has the power to require insurance companies to provide policies without limits on pre-existing conditions, if the companies want to provide insurance. If they don't want to under those circumstances they can stop or more likely lobby Congress for more money or a larger incentive tax.
Striking the mandate and calling the penalty the tax that it is without changing one other provision in the law satisfies the lawyer, the libertarian and the liberal in me.
*However, the lawyer in me requires one footnote to answer the question of how the court could decide if the "penalty" is a "tax" in light of the anti-injunction law. The payment in this case is not the revenue raising tax that Congress wanted to prevent the courts from interfering with. It is collecting no revenue now, by it's own terms it is essentially uncollectible and my favored solution preserves the "tax."