How Chief Justice Rube Goldberg Saved the Individual Mandate

Government food bank - you will be required to eat at the government soup kitchen, and if not, you'll pay a refusenik tax and then be required to eat at the government soup kitchen.

At the same time, it's kinda our own damn fault - too damn tricky on that ACA. If refusenik fines was supposed to pay for it, why not just levy an income-scaled levy for those without health care and provide it out of Medicare? Would that need 3000 pages of fine print? If you want the care from another provider, you get a letter from your doctor transferring care to X provider - your payment & government matching move over. (a bit like those private school credits the right is always yammering about)

I'm waiting for the fine tax on blonde-haired, green-eyed left-handers.

Next time I get a parking fine tax or speeding ticket tax, I'll be sure to let my kids know I'm just being a fine upstanding citizen.

For a group that dislikes taxes, this fungible "everything is really a tax" notion will extend their goofiness a long way.

Does the term "mandate" imply permanency; a right?

Whereas a tax can be adjusted or eliminated, depending upon whose in power?

Last night, I drafted an entire post on what's a tax, what's a fine, what's a fee and what's a penalty.  The whole thing kind of devolved into a kind of reductionist soup.  Because, when it comes down to it, especially from the perspective of personal finance, it very often doesn't matter.

This is why I never understood the "your taxes will go up," argument about single payer.  Somebody is going to take money out of your check every two weeks.  It might be the U.S. Treasury, it might be Aetna.  What's acceptable should come down to who you believe will deliver the best services at the lowest costs, not whether you're paying a tax or a bill.

My ethical problem with the health care mandate or with your hypothetical smartphone mandate is that I believe that if the public is going to demand that the individual make a purchase that the public should provide some non-profit option to the consumer, at the public's expense.  The government should, in your example, make smartphones and administer its own service plans, competing with private industry.  The government should also, in exchange for the mandate subsidy, tightly regulate the private providers, making sure that the phones are affordable, that the service is acceptable and that costs don't skyrocket.

To me, the biggest question about the ACA, now that the mandate issue is settled, is whether or not the ACA asked enough of the private insurance market to justify the mandate subsidy.  Time will tell.

In what sense will people not be allowed to buy health insurance from the company of their own choosing?

This is more like the government deciding that you can't buy a car without a seatbelt or without a catalytic converter or that doesn't meet certain safety standards.

Yes, that does limit your choices, but this limitation is considered worthwhile. And there are still plenty of choices to make.

Dan, I think what you are missing here is that the people who pay the "tax" or penalty receive zero benefit from the law.  If they end up going to the emergency room they will be treated exactly as they were before as uninsured.  They receive no benefit at all from paying the penalty and if they need care they go into the same debt. 

Moreover, the people who can afford to pay for health insurance may not be able to afford the actual care.  In your example, there's a flat one-time tax.  In ACA, you are must pay up to 8% of your salary annually just to get health insurance.  And if you need care, you're still be left with deductibles of $3,500 and copays of 40%.  The rate of medical bankruptcies has not gone down in MA because of this very reason.  Even people with medical insurance still can't afford care.  It is immoral that the personal responsibility of this law has taken precedence over the affordability.  This is universal access to private health insurance, not universal access to health care.

Perhaps Roberts understood the liberal mind and realized they would turn a win by Obama into a loss as everyone rehashes ACA and compares it to every other option that isn't available. 

I wanted single payer. I didn't get it. I didn't like this bill at first. But so what, let's move on, try to improve it.

You know, I run a small business. Everyday I have to settle for less than I want to move forward inch by inch. I don't have the luxury of telling a client I don't like his procedures. Hell, most of the time I can't even tell my employees what I really think. To compromise, get what you can and move ahead a little bit is real life.

So we got a bill where insurance companies will still rip us off, at least for the foreseeable future. I have big client companies who don't pay me in  thirty days like my invoice demands but pay in 60 or 90 days and take the 2
% discount anyway. So, do you think I risk complaining and putting something on their list that might suggest one of my competitors. No, I eat shit and keep working.

What's being overlooked in this bill is that most states will set up exchanges. Eventually, there will be competition and focus on what's being delivered and what it costs. Is there any reason a Democratic Congress couldn't add provisions to encourage preventative health, better results?  Will we have a chance at a Democratic Congress if we all devolve into another six months of hand wringing over a less than favorable bill?

Dan, I needed to get this off my chest and this seems like a good place to do it even though I've probably missed the point of your blog. I lack the time to write my own blog. Peace.

An interesting critical analysis by (conservative) legal scholar Richard Epstein:

He will no doubt attract praise in some quarters for splitting this baby. But his decision is wrong. As a matter of constitutional text, legal history and logic, the power to regulate commerce and the power to tax should not be separated. It is not good for the court or the country that the chief justice’s position in such an important case is confused at its core.

...

Chief Justice Roberts has ignored this fundamental principle: If direct regulation is beyond the scope of the Commerce Clause (as he held), then taxation as an indirect route to the same regulation should be off limits as well (as he failed to hold). This is a baby that should not be split. His attempt to do so undermines his ruling, the court and the Constitution.

I think much has been written about this decision, and many of us have offered parades of horribles about what the decision could mean.