That's not because I don't agree 100% that the authority to impose such a mandate is essential to providing near-universal insurance and holding down costs. It's because, of the two chief legal arguments in favor of the mandate -- one relying on Congress's power to tax, the other on Congress's power to regulate interstate commerce -- Cohn seems to lean heavily on the power to tax. The PPACA is
defensible on constitutional grounds—starting with the power to tax, the same authority that undergirds Social Security and its health insurance analogue, Medicare. With Medicare, the government demands that people help finance the cost of society’s medical treatment through payroll taxes. With the Affordable Care Act, the government demands that people help finance the cost of society’s medical treatment either by paying for a reasonably comprehensive insurance policy or writing a check to the government. The form of the payments is different but, argue the act’s defenders, the basic concept is the same.
The applicability of that power depends on convincing judges that the sum paid by those citizens who can afford health care insurance but choose not to buy it is in fact a tax, not a penalty. And one Federal judge who has strongly upheld the mandate on the basis of the Commerce clause in the Constitution also quite definitively rejected the argument that the cost imposed on those who choose not to buy insurance is a tax.
The judge, Norman K. Moon in the Western District of VA., in Liberty University v. Timothy Geithner, rejected the argument that the mandate is enforced by a tax rather than a penalty. He did so on dual grounds: because the bill itself dubs the required payment a "penalty" in most instances, and because substantively, "the assessments function as regulatory penalties -- they encourage compliance with the Act by imposing a punitive expense on conduct that offends the Act" (p. 20). That, to Moon's thinking, places the mandate under the rubric of "penalty" as defined by the Supreme Court in various cases, including Dep't of Revenue v. Kurth Ranch (1994): "Whereas fines, penalties, and forfeitures are readily characterized as sanctions, taxes are typically different because they are usually motivated by revenue-raising, rather than punitive, purposes" (p. 19).
