Jonathan Cohn, writing for The New Republic analyzes the decision before the Supreme Court on the Affordable Care Act (ObamaCare).
The question is whether the individual mandate is constitutional. Cohn writes:
" . . . nobody has said they want to stop government from providing universal access to health care. On the contrary, the plaintiffs have stated that a program like Medicare, in which the government provides citizens with insurance directly, would be clearly constitutional. They’ve also stated that a scheme of compulsory private insurance would be constitutional if somehow the government could make people buy it when they show up at the hospital . . .
"Most amazing of all: The plaintiffs have conceded that a universal health insurance program would be constitutional if, instead of penalizing people who decline to get insurance, the government enacted a tax and refunded the money to people who had insurance. As Sonia Sotomayor noted, functionally such a scheme would be exactly the same as the Affordable Care Act. Both the plaintiffs and some of the skeptical justices have also indicated that the Affordable Care Act would be constitutional if the law's architects had simply used the word "tax" to describe the penalty.
"Think about that for a second: If the justices strike down the Affordable Care Act, they would be stopping the federal government from pursuing a perfectly constitutional goal via a perfectly constitutional scheme just because Congress and the President didn’t use perfectly constitutional language to describe it. . . . "
Let's hope that kind of analytic thinking finds its way into the Justices' deliberations. Perhaps our two most recent additions to the court, Sotomayor and Kagan, will make that case.