Column: ObamaCare's flawed wording
Reading over the coverage of the Supreme Court's oral arguments over the fate of ObamaCare, you might get the impression that the conservative-leaning court will strike this law down.
While those people on each side of the political divide will have their opinions about this, I, as a person whose profession is all about writing and words, am struck by how the future of this law seems hinged on the wording in the legislation.
The major argument against ObamaCare has to do with the requirement that everyone must buy health insurance, otherwise known as the individual mandate.
This idea of preventing "free riders" from opting out of buying insurance to keep prices in check was originally a Republican policy first proposed by the Nixon Administration. Republicans in the 1990s proposed it again as an alternative to the Clinton healthcare reform effort. The conservative Heritage Foundation also pushed the individual mandate as a way to reform the health care system. GOP presidential candidates from Bob Dole to John McCain also liked the idea.
It's also the basis of the health care reforms passed in Massachusetts, signed by former Gov. Mitt Romney, who continues to have a hard time explaining to conservative primary voters his ever-changing positions on this issue.
But all Republican support for the individual mandate came to an end once the Obama Administration decided to jump on board. There is no better illustration of the Obama Derangement Syndrome than this, that Republicans will oppose anything that Obama supports, even if they have to ditch their own long-standing policy positions to do it.
Even crazier is the fact that this legal challenge to the individual mandate rests upon some poor wording in the bill.
What is being challenged is if Congress has the constitutional power to force people to do something, like buy health insurance. It's a good question, and the discussion in the court yesterday shows the justices are very interested in this question.
However, this whole argument could have been avoided by simply wording this requirement differently.
While it may be an open question if the government can order its citizens to buy health insurance, there is no question that Congress has the power to levy taxes. The tax code is full of different taxes, fees, deductions, credits and other such measures.
Instead of requiring individuals to purchase health insurance, the law could have been written imposing a tax on those who don't buy insurance. Or, it could have imposed a tax on everyone, but offered a tax deduction for insurance buyers.
See how simple that is? You would have the same effect without the constitutional drama. Just this simple change in wording would have saved the backers of ObamaCare a lot of trouble.
It may be that the Supreme Court sees the simple logic here and votes to uphold the law on this basis. After all, the requirement to buy insurance isn't so much a demand as it is a fee. There are no criminal or civil penalties for not buying insurance under the law. It does impose a fee on non-buyers, but forbids the government from tracking you down to pay it. The government is limited to deducting that fee from any tax refund due to the person not buying insurance.
In other words, it's a tax.
It would be pretty easy to interpret the individual mandate provision as a mere tax and throw out the challenge, if this were not such a political question. I have little doubt if this mandate was the product of Republicans, there would be little opposition from the conservatives on the court.
But it is political, and anyone who thinks the current Supreme Court isn't a political body — especially after the Citizens United decision that gave us SuperPACs — is dreaming.
In the Democrats' rush to pass ObamaCare, they also messed up the wording in another important way. Normally, wording is included in bills that in general says if any part of a law is struck down, the rest of the law shall remain in effect, a legal concept known as severability.
ObamaCare was passed without this wording, meaning the court could choose to invalidate the entire law if they find the mandate unconstitutional. This includes the ban on insurance companies discriminating due to pre-existing conditions, which is probably the most popular part of the new law that even most Republicans like.
While Democrats can cry about how Republicans are playing political games with people's healthcare, it was their incompetent drafting of the actual legislation that may be its undoing. As such, they will need to take their share of blame if several million people are suddenly left without health insurance.
Perhaps Congress needs to hire some better writers to draft legislation.
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