I taught the Public Affairs Reporting class at Armstrong this past spring, and I was pretty certain that the individual mandate in the Affordable Care Act (Obamacare) would be upheld after a student – Nancy Rentz – delved deeply into the law for a paper.

Those without insurance are not in fact mandated to buy insurance. They are told that they should, are given avenues to do so that in theory would be affordable (but, as Nancy pointed out, probably won’t be for many), and are threatened with penalties if they don’t.

If the uninsured do not buy insurance, they will be penalized through the tax code. But the IRS has no clear methods for collecting the penalty from those who are determined not to pay it. For taxpayers due refunds, the IRS can simply deduct the penalty from the refund if the taxpayer does not include it in the filing. But those who opt not to pay the penalty and who are not due a refund are apparently in the clear – as I understand it, the penalty is not subject to tax liens and criminal enforcement.

Obamacare supporters never liked to call the mandate a tax, but that simple reality seems to have been at the heart of the 5-4 Supreme Court decision today.

I support the ACA, but I agree that the bill is a big sprawling mess. To a significant degree, it’s a mess because Congressional Republicans thought that they could kill it rather than work on compromise proposals that could actually attract some bipartisan support and move us toward universal coverage. We are the only industrialized nation with such a large number of uninsured people, and we desperately need to address that. There are many ways to get there, and Obamacare actually incorporates ideas – like the individual mandate – that used to be widely supported by Republicans.

So the ACA seems like a starting point – not a great one by any means, not even a good one. But it’s a starting point.

For all the talk of a politicized Supreme Court, I was glad to see Chief Justice Roberts be the author of such a practical and easily understandable decision. If Roberts had ruled against the law along with the other four more conservative justices, the court itself would have become a huge issue in this fall’s election and a bitter, partisan 5-4 overturning of Obamacare could have overshadowed many of the court’s future decisions.

Roberts is just 57 and will likely be Chief Justice for a couple of more decades. He has a lot to lose in both power and respect if the Supreme Court is widely viewed as nothing but a partisan political arm of one party or the other.

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3 Responses to My first take on the Supreme Court ruling on Obamacare

  1. As a lawyer, I see the decision and its focus on the taxing amendment for authority as a huge opening for progressive clauses. Roberts signaled that the court is open to upholding legislation that uses that amendment as justification, much as the Warren court allowed the Commerce Clause as authority for the Civil Rights Act (Heart of Atlanta case). It’s time to push more legislation with tax penalties for noncompliance.

    On another personal note, this decision pretty much makes it possible for me to move to Georgia without having to worry about getting health insurance coverage. Until now, I was stuck in place because of group coverage.

    • bill dawers says:

      Thanks as always for your interesting comments.

      It has not been widely understood just how much issues of portability (combined with existing conditions exemptions) have restrained worker mobility and therefore the overall economy. This is great news for people with coverage but with pre-existing conditions that have all but chained them to their current employers.

      • In many respects, when fully implemented, this will be a “jobs” bill. There are lots of employees who would love to start their own businesses and have great experience, but who don’t dare make the leap for fear of being uninsured. This removes that impediment.