The Supreme Court and the Mandate that Wasn’t
Politics is all about changing words to suit the needs of the moment — generations of “messaging” is how we get from “smog” to “carbon emissions” or from “millionaires” to “job creators.”
But legislating isn’t politics (and would that more legislators remembered that). Actually writing laws fixes your words perhaps not quite in stone, but at the very least it etches them on a clay tablet that takes a bit of wiping off.
That’s worth remembering today.
I’m sure you’ve already read extensive coverage of the Supreme Court’s decision to uphold the Affordable Care Act by now?
The main issue, as you might recall, was the “mandate.” Cases against the ACA argued, effectively, that the federal government did not have the power to require citizens to buy something if they didn’t want to.
But in one of those easy-to-forget little legal quirks, the word “mandate” doesn’t actually appear in the ACA. It was made up by politicians and pundits. Nor does “require” appear, at least in terms of requiring you to buy health care. There is, instead, a “penalty” for going uninsured, which you pay on your taxes like a variety of other tax penalties.
Thereon hangs today’s 5-4 ruling, which decided that Congress did have the right to penalize Americans for going uninsured, under their authority to “lay and collect taxes.”
In layman’s terms: the government cannot, in fact, force you to buy health care. But they can raise your taxes if you are an uninsured taxpayer or household. You get to choose which you prefer yourself. And since there are no criminal penalties — it is not a crime to go uninsured, merely a tax burden — the government can’t be said to be “forcing” you to do anything. Or so sayeth a slim majority of the Supreme Court, anyway.
Practical effects of this should be fairly predictable:
1) We’ll immediately see a lot of right-leaning media coverage about how Obama has raised your taxes. It’s pretty much the only superficial talking point they can get out of this one, so expect to hear it a lot.
2) In the longer term this sets some interesting precedents regarding the Commerce Clause. The ruling is a substantial narrowing of the last 100 years’ or so interpretation of it, so down the road this may end up being something of a conservative victory.
3) Since the tax penalties are so small (between $695-2,085 per year depending on household income), the people who still need and still can’t afford private insurance will still go uninsured. $695 is cheaper than paying $150/mo. for a bad plan that maxes out as soon as you stub your toe. The chronically uninsured will just be paying an extra thousand bucks or so to no personal benefit, and the emergency rooms will still be used as the default and only means of health care for poor people.
Now, theoretically, that last could change, if the implementation of health care exchanges start to actually bring down the cost of private plans due to those mysterious “market forces.” But that’s a dubious hope, and a number of states (including mine) are not just dragging their feet but actively passing laws to prevent, delay, or hinder the implementation of health care exchanges, or to limit the kinds of coverage you can buy through them.
So short of some radical market alteration, if you’re someone who does not receive free or discounted health care through an employer — meet the new boss, same as the old boss.
Only with a tax hike.
But it was totally a liberal victory, right?