When it comes to the legislation itself, the key question actually comes down to semantics. It's broadly agreed that tax breaks are constitutional. The individual mandate could've been called the "personal responsibility tax." If you can show the IRS proof of insurance coverage, you then get a "personal responsibility tax credit" for exactly the same amount. This implies that what makes the mandate unconstitutional in the eyes of some conservatives is its wording: It's called a "penalty" rather than a "tax.The principle conservatives are fighting for is that they don't like the Affordable Care Act. And having failed to win that fight in Congress, they've moved it to the courts in the hopes that their allies on the bench will accomplish what their members in the Senate couldn't. That's fair enough, of course. But they didn't see the individual mandate as a question of liberty or constitutionality until Democrats passed it into law in a bill Republicans opposed, and they have no interest in changing its name to the "personal responsibility tax," nor would they be mollified if it was called the "personal responsibility tax." The hope here is that they'll get the bill overturned on a technicality. And perhaps they will. But no one should be confused by what's going on. -
Ezra Klein
Republicans are trying to get the courts to do what they could not. "Judicial Activism" is its purest form.
[Note: Sen. Bob Dole (Kan.), back when he led the Senate's Republicans in the 90's, co-sponsored a bill that included an individual mandate.]
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