What keeps getting lost in the discussion about the so-called "mandate" is that it is simply a tax penalty for people who don't purchase insurance. If that form of incentive is unconstitutional, as some are arguing, then the intellectual impasse that you immediately run into is that incentives in the form of tax breaks are also unconstitutional. Tax breaks for specific economic activities are functionally and mathematically indistinguishable from tax penalties for failing to engage in specific activities.
For example, Ryan's health-care proposal, much-loved by many self-professed conservatives, centers around tax vouchers that individuals can use to purchase health insurance -- i.e., tax breaks for buying insurance. But that is equivalent to imposing a tax penalty on everyone who doesn't purchase health insurance. Would the current "mandate", therefore, suddenly become constitutional if Congress simply raised taxes on everyone (something it surely has the power to do), and then gave a tax break to everyone who gets insurance, which would have exactly the same effect as the current bill?
For that matter, what about tax breaks for all sorts of specific purchases, from houses to healthcare, that have been in the tax code for years?
Megan's rebuttal to this line of thought:
I think there actually is a way to sort of do this through the income tax code--lower the standard deduction by $750, then offer a $750 allowance to anyone who has health insurance. But they didn't do this--no matter how much it is claimed retroactively that this is effectively what they have done, legally they haven't.
Moreover, if they had done it this way, it wouldn't work. While such a maneuver would undoubtedly pass constitutional muster, it then wouldn't operate the way the government needs it to--which is to say, as a penalty, modifying behavior. That's because too few people pay much in federal income taxes--and the standard deduction does not affect your payroll taxes, which they do pay. Worse, the people who don't pay taxes are the people most likely to a) go uninsured and b) be deterred from going uninsured by the threat of a penalty.
Freddie dismisses Conor's fears:
This is another example of the addiction to metacommentary on the Internet. Balko doesn’t like Obamacare. You don’t like Obamacare. Drum and Chait do. Fair enough; that’s democracy. But rather than stick to the issue at hand, you try to make some sweeping constitutional claims to get to overriding health care reform. It’s just like abortion; some people want to outlaw it, some don’t. But the people who do can’t just say that they want to outlaw it. They have to develop this narrative where Roe v Wade is this uniquely disenfranchising, anti-constitutional decision. But that’s a function of where you stand on the issue of abortion, not on this second-order consideration of what the Supreme Court can and can’t do.