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June 28, 2012 at 5:31 PM

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ObamaCare, a year and a half later

a3healthrobertspic29.jpgI wrote a column on the Affordable Care Act and the individual mandate a year and a half ago, published in the Jan. 20, 2011, issue of The Seattle Times, here. It was about whether the individual mandate was constitutional. This was before Washington Attorney General Rob McKenna had put the state's name on a lawsuit opposing it.

At the time I wrote, the law's supporters (Sen. Patty Murray and University of Washington law professor Stewart Jay, in my column) dismissed the question as not serious, and in the event it was serious. I was right about that. The Court actually did rule that the individual mandate was an unconstitutional use of the Commerce power, as the conservatives were arguing. And the ruling was 5 to 4, as former Sen. Slade Gorton predicted.

The column's worst paragraph, in hindsight, was this:

But when it came to the Supreme Court in 1937, Social Security was approved as a tax and a spending program. A single-payer plan might be approved that way, but not the current plan. This is mandatory private insurance.

Obviously, I thought, the mandate was not a tax. Several of my sources said so and were pretty confident of it, and I didn't bother to quote them on it because I was quoting them on other things much more controversial. Well, Justice Roberts says the penalty makes it a tax. It's a tax on people who don't buy insurance. The government can't force you to buy it, but they can tax you for not buying it.

Thanks a bunch, John Roberts.

Photo of John Roberts: Doug Mills / The New York Times


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