If It Quacks Like a Duck...

U.S. Supreme Court Chief Justice John Roberts surprised many this week by concluding that the penalty imposed on individuals for failing to obtain health insurance under the new Affordable Care Act is a tax. Taxes, unpleasant as they may be, are constitutional when properly levied by Congress. Roberts’ conclusion kept the law called Obamacare alive.

“Tax” is one of the dirtiest of words in this country, largely because of the perception that the revenues from taxes are wasted by the bodies that levy them or used for unnecessary purposes. It was a conservative, not a liberal, argument that the ACA created a new tax. The Obama administration bent over backwards to assure everyone that there was no “T” word involved.

The complaint about forcing people to buy health insurance through a penalty structure is that they are paying to support something they don’t need. But there are plenty of taxes we accept as necessary. We support fire and police departments, even though we could go decades without ever having to call either one for service. Their existence not only provides peace of mind – they are seen as being something that benefits everyone in the community. To a lesser extent, the same is true of public education – our taxes support it, whether or not we have children in school ourselves, on the grounds that educating children provides a public benefit. The principle behind the Affordable Care Act is the same, the public benefit being that easier access to health care provides for a healthier population, and less, not more, demand on expensive health care services.

Which federal agency gets to collect the penalty in the Affordable Care Act? The Internal Revenue Service, of course. Buying health insurance is a means of avoiding the tax. A common use of our modern tax structure is encouraging, or discouraging, behavior.

But one very American trait is our insistence on results – quick results, if possible. It remains to be seen whether the ACA will fulfill the expectations created by its supporters. There are plenty of us who simply don’t want to take that risk. In any case, that’s not the Supreme Court’s concern. Its job is over. Chief Justice Roberts and the majority have determined that it’s a duck because it quacks like one. It’s our job, and that of our representatives in Congress and the next president, to determine whether the duck should live – and if so, how it should live.

Triple COA

Brilliant.

No we see why lawyers get to charge so much. The U.S. Supreme Court’s ruling gives both major parties something to crow about – and saves the Court’s reputation at the same time.

With the majority opinion that the individual must buy health insurance or pay a penalty is essentially taxation, and that taxes, of course, are constitutionally OK, saves the health care law. The time and effort President Obama and others spent on getting it passed wasn’t wasted, or so they will be able to say.

But conservatives have argued all along that it’s a not-so-hidden tax, and the only way you avoid it is by buying health insurance from private suppliers. Which means, the only way to get rid of it, the commentators say, is to elect Mitt Romney and make both the House and Senate Republican in the November election. Far from ending the debate on this issue, the Court’s ruling throws a little gasoline on the fire.

According to the reports, the deciding vote on the Court was cast by Chief Justice John Roberts. So now, the court gets to say, see, we’re not the ee-vil reactionaries you’ve been thinking we are (or at least Roberts gets to say that).

I’ve always thought the general principles of the law are a good thing, and that it solves quite a few problems, but not enough. There’s nothing in it about tort reform – and there should be. It remains to be seen how effective the regulations on transparency will be at holding down health care costs. I have my doubts.

For now, though, the Supreme Court’s ruling may not quite be a perfect game, but it’s definitely a political triple play.