Legal Commentary

Mark V. Pauly, Wharton School economist, is famous for cooking up the individual mandate at the behest of Republicans who wanted to preserve private insurance from governmental control of health care. Putting aside the well-known ironies of that fact for the moment, here's what Pauly has to say about the constitutional argument against the Individual Mandate:

I?m not an expert on the Constitution. My fix would be to simply say raise everyone?s taxes by what a health insurance policy would cost -- Congress definitely has the power to do that -- and then tell people that if they obtain insurance, they'll get a tax break of the same amount. So instead of a penalty, it?s a perfectly legal tax break. But this seems to me to angelic pinhead density arguments about whether it?s a payment to do something or not to do something.

Three quick points:

(A) He's right about the "fix", no?

(B) If Pauly is right that precisely the same mandate could practically be achieved, consistent with the anti-mandate "commerce clause" argument, by using the taxing power, then does this fact suggest that the anti-mandate argument has the same status as other formalistic federalism arguments (e.g., "the statute is unconstitutional, because you did not put a jurisdictional element in the statute requiring the gun to travel in interstate commerce")? That is, is this argument just more "federalism etiquette" rather than serious federalism?

(C) If the answer is "yes" to (A) and (B), then might one take Pauly's reference to the "angelic pinhead" as a underhanded description not so much of the anti-mandate argument as of those who advance it? Should we lawyers be offended or ashamed?