April 05, 2012


Ruling Against the Mandate While Keeping It

As the Supreme Court weighs the constitutionality of the health insurance mandate in President Obama's landmark law, Jonathan Cohn raises an interesting possible outcome first put forth by law professor Joey Fishkin.

The key is that the mandate to obtain insurance and the penalty for violating it are actually two separate sections in the health care law. "But if the Court determines that Congress has no power to impose the insurance requirement, Fishkin says, it can simply strike the requirement but leave the penalty in place. In other words, the law would no longer tell people to get insurance. Instead, it would merely tell people who don't have insurance to pay a small fee to the government. On its own, Fishkin says, requiring such payment is a legitimate exercise of congressional taxing power."










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