If the Supreme Court rules against President Obama on the constitutionality of the Affordable Care Act, there's a sense in which he'll deserve it. After all, there was an easy way for him to make the act impervious to this fate, and it wouldn't have entailed a single change in how the program works.
This fix came up in Wednesday's Supreme Court argument when Justice Sotomayor showed that she is indeed a "wise Latina woman" by suggesting the following: Charge every American a health care tax and then hand out exemptions to those who buy insurance. In other words: Just rename the financial "penalty" imposed on those who don't buy insurance. If you call it a tax instead of a penalty, then the "mandate" to own insurance won't be a mandate, and the constitutionality question won't arise.
I remember hearing this basic idea shortly after the health care bill was passed, when people started complaining about the intrusiveness of a mandate. What I didn't suspect at the time--and didn't start suspecting until today, when I read Doyle McManus's column in the Los Angeles Times--is that the administration might have considered and rejected the idea. Still less did I suspect that the reason for the rejection was fear of blowback for "raising taxes." But that's the subtext of McManus's piece, and it's plausible.
I've long thought President Obama wasn't using the bully pulpit creatively enough--particularly on the issue of taxes. As establishment Democrats said the "political climate" didn't permit him to let the Bush tax cuts for the rich expire, he made no attempt to change the climate by using his considerable oratorical skills. (It seems to have taken Occupy Wall Street to clue him in to the fact that there's some class resentment out there to be harnessed.)
Granted, it might have taken a bit of extra rhetorical work to sell a health care bill with the word "tax" in it. But the tax wouldn't have applied to most voters, and, anyway, the upside would have been that the bill would seem less like coercion and more like an incentive. A bit of courage and creativity a few years ago might have prevented what could be a major policy disaster come June.
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