Friday, June 29, 2012

More on Taxes vs. Penalties in ACA

  I do have to say that my post below was pretty much on target, although I really did not think that the decision would be made on the basis of whether the mandate can be interpreted as a tax.

  On the whole, I am not disappointed with the Supreme Court decision. I think that Roberts and his majority colleagues did what I would want them to do and what they should do: Not look for way to find that the ACA is unconstitutional, but look to see if there is a way to rule it constitutional. Innocent until proven guilty. Roberts says this in a different way, when he discusses the point that if a law can be read in more than one way, the Court needs to read it in the most constitutionally favorable way.  The Commerce Clause limitations were even strengthened, and the idea that laws like this have to be recognized as taxes will make the political process more transparent.

  The ACA is also not a terrible base from which to build, if certain things were to be modified. I would really like to see us sever health insurance from employment, and while the ACA does provide a platform for that to happen -- the exchanges, and the beginning of taxation of health benefits -- it does not go nearly far enough. 

  But there is one more ethical question, related to my Apr. 4 post below. Roberts actually created a third option in addition to the two that I had: Scheme C: A mandate to buy insurance, with a tax penalty to be paid if the mandate is not followed. However, "...the mandate is not a legal command...(p.32, Opinion) and "...if someone chooses to pay rather than obtain health insurance, they have fully complied with the law...(p.37) Is there an ethical difference between Scheme C and Scheme A, the mandate and penalty? Seems pretty clear to me that there is. According to Roberts, I can skip insurance  simply pay the fine, and feel no qualms about doing so. I don't have "..all the attendant consequences of being branded a criminal..."

   I do worry that we are creating a precedent here, by creating a law with the word "shall" in it, and then saying that you can break that law and simply pay the penalty and be off the hook, including according to Roberts avoiding any "social stigma." So when the government says I shall do other things, such as parking in no parking zones, can I just pay the fine and be off the hook, legally and socially?