The Supreme Court has largely upheld the Patient Protection and Affordable Care Act (PPACA).

My limited understanding from media coverage is that the ruling on the “mandate” is narrow. The crux of the argument: The U.S. government can tax. Period. Since the mandate is a tax incentive, it’s not outside the constitutional scope for congress to enact such a tax incentive for people to purchase insurance.

Two quick points. First, we see once again, that Democrats lost the battle of words by the fact that the tax incentive provision became known as a “mandate.”

The fact is, it isn’t a mandate. It is an incentive. You are not mandated to purchase insurance. Rather, you pay a tax if you can afford but don’t purchase insurance. Or, put another way, you avoid paying a tax if you have insurance.

The word “mandate” is one of those wingnut terms of art (like “death tax”) that is factually inaccurate, but is fantastic for stoking emotions. It makes for good hate-stoking.

The second point. Of the thousand and thousands of words I’ve read on the constitutionality/unconstitutionality of the PPACA after the lawsuits were announced, one of the best was written by none other than Goldy:

See, the recently passed health care reform legislation does not require that all U.S. citizens purchase insurance, it merely provides a tax incentive to those of us who do. If you are not covered by an employer, and if you have not purchased your own individual policy, and if your income is above certain levels, and if you don’t hail from a state that has opted out of this mandate by implementing its own qualified health insurance system, you will be required to pay an additional federal tax, starting at the greater of $95 or 1% of income in 2014, and rising to $695 or 2.5% of income in 2016, up to a cap of the national average premium on a bronze plan. Both the minimum tax and the cap will increase by the annual cost of living adjustment.

Now, some might argue that this is still a mandate to engage in some sort of economic activity because it targets a tax at those who refuse, but one could easily flip this perception around. What it really is, is a flat, 2.5% federal income tax — much along the lines of what is already imposed to fund Social Security and Medicare — but for which the law provides a substantial exemption to those who choose to purchase private health insurance.

And don’t attempt to bog down this discussion in jibberish over whether this is a “tax” or a “fee” or a “penalty” or a “mandate” or whatever. The courts have long been consistent that lawmakers need not jump through such semantic hoops; if a law is constitutional worded one way, it is constitutional worded another, as long as the practical application is the same. And clearly, our tax laws are filled with provisions intend to encourage some economic activities and discourage others.

Along these lines, a better analogy than Troll’s theoretical handgun mandate would be our current home mortgage interest deduction. The federal government does not actually mandate that we all take out big mortgages to buy homes and condos, but it grants huge tax advantages to those who do, essentially penalizing renters. Think about it: with the extra tax revenue from eliminating the home mortgage interest deduction, the federal government could lower the base tax rate on all of us.

So, if the health insurance mandate-cum-exemption is unconstitutional based on the contention that it compels individuals to engage in an economic activity, then so too would be the home mortgage interest deduction, and any number of other federal tax incentives. And I sincerely doubt that McKenna would choose to join a lawsuit seeking to deny Washington homeowners this very popular deduction.

If the “mandate” is unconstitutional, so is the mortgage interest deduction. After all, it “mandates” that you take out a mortgage loan, or pay a tax penalty.

Finally…winners and losers: First, this secures Obama’s legacy. Even though the PPACA was only one of many solid accomplishments of Obama’s first two years, this one is more defining and will positively, directly touch the lives of more Americans. (Ironically, candidate Obama opposed a “mandate” while he was campaigning against Clinton in 2008.) Second, this takes away Romney’s arguments that “Obama didn’t do anything” when he had a Democratic House and Senate.

Likewise, Democrats win by getting through another great social program. This is, after all, the real reason why Republicans oppose this largely Republican-designed program.

On the other hand, this is a win for conservatives, in that they will certainly be motivated by hatred, anger, fear of “socialism” largely out of the misconception that the government is now “forcing them to do something.”

The other big winner is Rob McKenna, who by losing the lawsuit he claims to have co-founded, dodges a huge bullet. Who wants the vote for the prick that kicked you off your parent’s insurance, or the asshole that quadrupled your insurance costs because of a pre-existing condition?

The final big winner is America—we have now joined most of the rest of the civilized world by making health care available to the poorest of our citizens. A reversal would have been a tragedy for untold millions of Americans. The PPACA is far from perfect, but it’s almost certainly better than what we had.


  1. 1

    "Baretta" spews:

    But, and this is the beauty part, I can just smirk at my conservative friends and relatives with that trademark unlit cigarrette hanging from my lips.

    I’m not sayin’ a word. I don’t have to.

  2. 2

    ArtFart spews:

    A quick glance through the official text (available for download from Reuters, if anyone’s intereste) shows Chief Justice Roberts citing precedents in the punitive taxes levied on cigarettes, marijuana and sawed-off shotguns, “not so much to raise revenue as to discourage” their distribution and use. He clearly sees no difference between use of that method to persuade someone to do something as to persuade someone not to do something.

  3. 3

    Roger Rabbit spews:

    You’re mostly right, Darryl, but I have to take issue with this:

    “After all, it ‘mandates’ that you take out a mortgage loan, or pay a tax penalty.”

    The mortgage deduction is not strictly analogous to PPACA’s “tax penalty” provision. The latter imposes a new tax on top of existing taxes if you don’t buy health insurance, but this new tax doesn’t apply to everyone, it only applies to a subset of taxpayers. The mortgage deduction doesn’t gives you a reduction in an existing tax that applies to everyone.

    Also, even if you qualify for the mortgage deduction by paying mortgage interest, you may get no tax benefit from the deduction. This would be so only if your total itemized deductions exceed the standard deduction. For many middle-class taxpayers, the mortgage deduction puts them in itemizable territory, but they’re getting only a partial tax benefit from mortgage interest. For illustration, let’s say a married couple filing their 2011 return can claim a standard deduction of $11,900 and they have $7,000 of deductibale mortgage interest and $5,000 of other itemizable deductions. In this case, only $100 of their mortgage interest provides an additional tax deduction, which if they’re in the 15% marginal tax rate bracket yields a tax saving of $15.

    So, they’re not strictly comparable.

  4. 4

    Roger Rabbit spews:

    “First, this secures Obama’s legacy.”

    It also secures Chief Justice Roberts’ legacy, which he no doubt was thinking about when he wrote his opinion.

  5. 5

    czechsaaz spews:

    Things we learned:

    Roberts isn’t batshit crazy.

    Rush, Hannity, Beck, Fox News and anyone who uttered uncostitutional and Obamacare in the same paragraph are wrong and their legal opinions…er…bloviations should be ignored forevermore.

    Rand Paul is still a clueless dick.

    Rob McKenna, fiscal conservative, wasted a shit ton of state funds and state salaried staff time.

    Cantor/Boehner will redouble their laser beam focus on jobs by scheduling several votes to repeal this constitutional law.

  6. 6

    Roger Rabbit spews:

    This is nuanced, but not to be overlooked is the fact this slams the door shut against any serious constitutional challenge against Social Security and Medicare.

    Somewhat surprisingly, SCOTUS has never dealt with that issue in a direct way. If PPACA’s individual mandate had fallen on some theory that government can’t force people to buy a product or service, it’s a short step from there to declaring Social Security and Medicare unconstitutional, because in reality the government is forcing you to buy those benefits by taxing you for them.

    One of my worries before the announcement of this decision was whether a big victory for the right would have emboldened them to go after the big kahuna: Attacking the validity of Social Security and Medicare in the Supreme Court. There’s no possibility of that now.

    So it wasn’t just Obamacare that got upheld today; we can feel condident there’s no constitutionality threat to Social Security and Medicare.

  7. 7

    czechsaaz spews:

    Well that didn’t take long. House will vote on repeal on July 11th. Anyone got any Sore/Loserman signs kicking around?

  8. 8


    Roger Rabbit,

    “You’re mostly right, Darryl, but I have to take issue with this”

    The analogy isn’t perfect. Still…people who rent or don’t have a (large enough) mortgage do pay more in taxes. They are penalized for not having taken out a big mortgage. Alternatively, they are not taking advantage of a tax incentive.

    The difference (tax penalty versus tax incentive) is largely a semantic difference but not a legal difference–so says the SCOTUS.

  9. 9

    Roger Rabbit spews:

    @5 Would someone please tell Rand Paul that five justices is more than “a couple” and sufficient to constitute a majority as required to decide cases? And that SCOTUS decisions are the law of the land? That means when SCOTUS says something is constitutional, it’s constitutional, and is the end of that discussion.

  10. 10

    czechsaaz spews:

    Hey, I clicked over to Fox news and literally less than 10 seconds passed before I heard “European Socialism.” Less than thrity seconds before, “force us to eat broccoli.”

    Hey, I heard a bell, salivate.

  11. 11

    Steve spews:

    @5 “Rand Paul is still a clueless dick.”

    Rand Paul, “Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so.”

    Truly funny. Almost Bob-like.

  12. 12

    Roger Rabbit spews:

    Xavier Alvarez won’t go to jail for lying to water district voters about being a military hero when, in fact, he never served a day in our armed forces; but SCOTUS suggested Congress could rework this law to make it constitutional. In writing the majority opinion in this 6-3 decision, Justice Kennedy said:

    “The Act seeks to control and suppress all false statements on this one subject in almost limitless times and settings without regard to whether the lie was made for the purpose of material gain. Permitting the Government to decree this speech to be a criminal offense would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle.

    “It may, however, be possible substantially to achieve the Government’s objective in less burdensome ways. The First Amendment risks flowing from the Act’s breadth of coverage could be diminished or eliminated by a more finely tailored statute, for example, a statute that requires a showing that the false statement caused specific harm or is focused on lies more likely to be harmful or on contexts where such lies are likely to cause harm.”

    (Source of quote: USAToday)

  13. 13

    Liberal Scientist is a a dirty fucking hippie spews:

    I posted this over at (un)SP a few minutes ago, right after Roger Rabbit’s post:

    Hey, maybe the Romney bus can circle the Supreme Court building, honking and jeering

    And…true to form, pudge deleted it!

  14. 17

    MikeBoyScout spews:

    The wingnuts seem totally unprepared for what happened.

    Their only ‘intellectual’ response in 2 hours is “repeal, repeal, repeal”. Sure. I guess.

    Let’s do the time warp again!

  15. 18

    Liberal Scientist is a a dirty fucking hippie spews:

    Notice the conspicuous lack of ‘serialbob’ on these threads today.

    He said “gotta go”, as if he had some responsibility to attend to, though for weeks now he has posted like…it was his job to post.

    One would think that an interested amateur like he purports to be would be in the thick of it, sputtering and frothing. His absence today, strategically wise, speaks to a more calculating approach, almost…professional.

  16. 19

    Liberal Scientist is a a dirty fucking hippie spews:


    Obama lied to the American people. Again. He said it wasn’t a tax. Obama lies; freedom dies.
    @SarahPalinUSA via web

    Grifter desperately clawing for relevance.

  17. 20

    The Real Fake Pudge spews:

    Rand Paul, “Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so.”

    You liars may think that this means the end of corporate death panels and insurance companies getting between you and your doctor, but this isn’t over. Like he says, Mitt Romney will strike down this law on the first day of his presidency. Rand and I will get back to you on the constitutionality of just how Mitt will do this.

  18. 21

    czechsaaz spews:


    And Boehner called off his press conference. Sucks to only prepare one speech and then discover that giving it makes you look like a moron. Well, more of a moron than the average Boehner speech.

  19. 22

    Liberal Scientist is a a dirty fucking hippie spews:

    Frothing Republicans, demonstrating the superiority of their homeschooled, Bob Jones University texted educations, vow to move to Canada over SCOTUS ruling.

    No, really.

    People Who Say They’re Moving To Canada Because Of ObamaCare

    Like this:

    Lucas Dargis @LucasDargis

    The supreme court upheld Obama Care. That’s it. I’m moving to Canada!

    or this:

    Walter Weldon @WallyWeldon

    I’m moving to Canada, the United States is entirely too socialist.

    BWHAHAHAHAHAA…as if Canada would accept these undesirables

  20. 24

    The Real Fake Pudge spews:

    “And…true to form, pudge deleted it!”

    That’s because you are a liar! Hey, didn’t I ban you already, maybe even a half dozen times? Oh, wait, that was MikeBoyScout. Hmm, maybe Tensor. My bad. But you’re still a liar.

  21. 27

    "Baretta" spews:

    Repeal? You gotta be kiddin’ me!

    Yeah, right — repeal healthcare and then impeach Earl Warren. Those wingnutteros have got their heads so far up their frammazammas they’ll never see daylight without a glass bellybutton.

  22. 28

    rhp6033 spews:

    # 20: That’s hilarous, considering how the Tea Party folks opposed the health care reform saying that they didn’t want it to be like Canada.

    In my office, I’m the only one born and raised in America. The others come from a collection of other countries, mostly Asian. They are just muttering about how they don’t understand America’s crazy health care system, it is so much more expensive, difficult to navigate, and provides worse quality than the national care systems available in their own countries. The “Obamacare” wasn’t even a half measure in their eyes, and yet the Republicans went stir crazy over that?????

  23. 29

    "Baretta" spews:

    Since Reagan, Republicans have degraded themselves to the role of mere opposition instead of loyal opposition.

    And if you think that the word ‘mere’ is uncharacteristic of me, you really don’t know me at all, do you?

  24. 31

    Roger Rabbit spews:

    I think the prize for the absolutely funniest whines should go to the wingnuts packing their bags for Canada. We need a special category of the “Golden Goat Award” for them.

  25. 32

    Steve spews:

    @30 Once he’s done singing the blues, which might be awhile.

    Chief Justice Roberts. Damn. Could it possibly suck more? Imagine how painful it must be for the right for that one slowly sink into their heads.

    I predict that our trolls will come back in a near complete state of denial, almost completely oblivious to reality. Sure, they’re already whack, but I’m talking almost all the way to the edge of irreversable madness. Heh. Then we push them over the edge come November.

  26. 33

    ArtFart spews:

    @10 We switched to Fox for about a minute and saw a cut from Megyn kelly looking like her head was ready to explode to footage of an anti-abortion rally.

  27. 34

    Roger Rabbit spews:

    @8 “Still…people who rent or don’t have a (large enough) mortgage do pay more in taxes.”

    I pay more in taxes but less than what a mortgage would cost me, so I’m better off as a free and clear owner. For most people, much of the mortgage deduction gets swallowed up in the standard deduction they would get anyway, so the actual tax savings are less than the nominal tax benefit. And depending on what your marginal tax bracket is, most people get a tax saving equal to only 15% to 25% of the mortgage interest they pay — and nothing on the borrowed principal they have to repay. So if you pay $5,000 a year of mortgage interest you may be getting only $500 of tax savings. That doesn’t look like a good deal to me. I’d rather pay the bank nothing and get no tax savings.

    How this works with renters is trickier. It’s incorrect to say renters get no benefit from this deduction. They almost certainly do, even if they have no taxable income. That’s because the landlord is getting that deduction and the competitive market forces him to pass it through to his tenants in the form of lower rent. I’ve been a landlord so I know how this works. If you check out market rents for houses you’ll find they’re around 4% or 5% (annualized) of the house’s market value. If there’s a mortgage on the property the landlord is making nothing after paying taxes and repairs. The tax deduction may be the only positive cash flow the landlord has from the property. If landlords didn’t get that deduction, either rents would have to be higher or they would be forced out of the business. So, even though the renter doesn’t directly get the deduction, he ultimately does get at least part of it in the form of lower rent. The tax benefit the landlord gets from this deduction is subsidizing the renter.

  28. 35

    yd spews:

    Your jerks may want to pay the 21 new taxes to fund this monster, includint divident tax increase of 40+% and capital gains tax hikes, 3.8% on the sale of a second home.

    500+ Billion in new taxes

    No Thanks

    I’m voting Romney!