Over at my old blog HA, Darryl responded to last week's SCOTUS decision upholding the Affordable Care Act by pointing to an old post of mine I had completely forgotten. Way back on March 29, 2010, in a post titled "A layman’s refutation of Rob McKenna’s bullshit lawsuit," I attempted to explain in non-legalese terms why I thought the health care law would be upheld.
"[W]hile I don’t put anything past the machinations of the highly partisan and activist Roberts Court," I wrote at the time, "I’m pretty damn confident that this layman is going to prove to have a better grasp of the law than our state’s attorney general." In fact, at the risk of sounding immodest, it turns out I fucking nailed it:
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 intended to encourage some economic activities and discourage others.
... [T]he federal government clearly has the constitutional authority to impose a tax to pay for health care (it does so now with Medicare), and it clearly has the constitutional authority to grant deductions, exemptions and other tax incentives in order to encourage or discourage certain forms of economic activity. And from a practical standpoint, that’s all the health care reform bill really does.
Yup, while everybody else (McKenna included) focused on the commerce clause, I correctly predicted that the law would be upheld based on Congress' taxing power. Two-plus years ago. Read the whole damn thing. It's like I practically wrote the majority opinion. McKenna on the other hand, not so much.