When I was in high school, our science class presented the debate on whether light was made up of particles or waves. It has characteristics of both. There were two teachers, and they presented themselves as Particle Man and Wave Man. They made the subject interesting and somewhat unforgettable.
I see similarities in the debate whether the mandate is a penalty or a tax. It has characteristics of both. There are two political parties trying to make a case for their perception: the Democrats (the penalty party) and the Republicans (the tax party).
Is the mandate a penalty imposed in the form of a tax, or a tax imposed only as a penalty? In the grand scheme of things, it should be an academic debate on the order of chickens and eggs. But in the current political climate, it is more like Hatfields and McCoys.
The Republicans want it to be perceived as a tax so they can accuse the Democrats of making a huge tax hike.
The Libertarians want it to be perceived as a tax on economic inactivity, and therefor unconstitutional.
The Democrats want it to be perceived as a penalty to avoid the other two viewpoints.
The individual mandate has exceptions for religious, conscience, and economic hardship reasons. The government is not going to buy insurance for someone and make them pay for it, and it is not going to prosecute someone who does not buy health insurance.
So is it really a "mandate", or is it an "inducement"? Forceful as it may be.
The Supreme Court found the individual mandate to be constitutional under the taxing authority of Congress, not under the Commerce Clause.
The Republicans want to make hay out of this by waving the "tax hike" banner. But this is not really that kind of tax. It is a new tax, not an old tax, so it cannot be a tax "hike". Also, the vast majority of people are not likely to be affected by the mandate, which is why the Republican assertion is vastly misleading.
Are the Libertarians right? Is it a tax on a nonexistent product or service? This is another particle/wave debate.
Not buying insurance is certainly, in itself, a non-action. The problem with this argument lies in the unfunded Reagan-era mandate for hospital emergency rooms to treat everyone, regardless of ability to pay - even if it means at the hospital's expense. For a while, the added costs could be transferred to the paying (insured) patients. Hospitals are closing needed emergency rooms because they can no longer absorb the cost of treating the uninsured, which increases the financial strain on the emergency rooms that remain open. The cost of insurance is now too high to cover those costs. The insurance mandate closes the hole created by the emergency room mandate.
Some Liberals use auto insurance as an example of the government being able to require people to buy insurance. I've never really liked this comparison, and Conservatives reject it on the valid grounds that not everyone drives and therefore not everyone is required to buy auto insurance.
Let me see if I can fix that analogy:
Uninsured Motor Vehicle Fee
Every person registering an uninsured motor vehicle shall pay a fee of $500 at the time of registration. Payment of this fee allows a motor vehicle owner to operate an uninsured motor vehicle. Payment of this fee does not provide the motorist with any insurance coverage. The uninsured motorist remains personally liable if he or she is involved in an accident. The fee is valid for twelve months but may be prorated for the unexpired portion of the registration period.
Uninsured Motorists Fund
As provided for by Motor Vehicle Code 46.2-710, all revenue collected by DMV as a result of registering an uninsured vehicle is paid into the state treasury and held in a special fund known as the Uninsured Motorists Fund. The purpose of the Fund is to reduce the cost of uninsured motorist insurance coverage.
The analogy I would make is that just by living and breathing in the United States, we are participating in a system of ambulances and emergency rooms - and by economic extension, the larger health care and health insurance system.
Whether you call it a mandate, a penalty, or a tax, the proper comparison is not to auto insurance, but to the uninsured motorist funds. The funds that mitigate the financial collateral damage of dealing with the uninsured. The funds that limit the taxpayer costs of moral social welfare.
I like the SCOTUS decision to tie the constitutionality to the power to tax instead of the commerce clause because it finally recognizes Article I, section 8, clause 1 as an autonomous clause, and not simply as a preamble to the rest of the section - though that may not be what Chief Justice Roberts intended. This is, however, a mighty big can of worms to open.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
The private health care insurance system, and the larger health care industry, is failing to provide for the general Welfare of the United States by double-digit percentages. It is not the role of private sector businesses to provide for that Welfare, which is why the republican market-based policies concerning health care reform are nothing more than empty promises base on a fraud. Every private sector business in the health care industry serves its part, but there is nothing in capitalism to ensure that all the needed parts are served.
The role of doctors in America has shifted from Angels of Mercy to cogs in the machine of Capitalism. The cost of educating and training a new doctor is simply too high for the system to create and support general practitioners and those in the low paying specialties. The focus has shifted from the Hippocratic oath to student debt and the valuing of wealth over people.
This brings us to the last debate: Is health care a right, or a privilege?
I reject the idea that it has to be either a right or a privilege - only one or the other.
Ronald Reagan established that life-saving treatment, though perhaps not life-extending treatment, is a right.
Vanity surgery easily fits the definition of a privilege.
I would also identify a third category, which I call "necessity". Food, water, and shelter are other things I would call "necessities" - things that people need in order to live, regardless of who you are or where it comes from. Necessities fall between rights and privileges, and are primarily supplied from the fruits of one's labor. When that is not possible (or insufficient), charity or government or some combination thereof may step in.
The individual mandate includes a penalty that is implemented in the form of a tax. It's a new tax, not a massive tax hike. It is not a general tax. It applies only to the uninsured who wish to remain uninsured and do not qualify for any of the exemptions.
It is a tax on the people who are covered by the emergency room mandate, but have no insurance.
There are no provisions for prosecution included in the "mandate".
The whole penalty/tax debate is meaningless political hyperbole, and it's time to move on.