It seems like a dumb question, but there may be some truth behind it. The New Republic's Jonathan Cohn wonders: If the Supreme Court strikes the individual mandate -- the requirement that every U.S. citizen obtain health insurance coverage -- what happens to the fees and penalties included in ObamaCare for those not covered?
Joey Fishkin, an assistant professor of law at the University of Texas, proposed this option over the weekend. Writing at Balkinization,* Fishkin notes that the mandate to obtain insurance and the penalty for violating it are actually two separate sections in the Affordable Care Act. The mandate, known as the “minimum coverage requirement,” is Section 5000A(a). The penalty, known as the "shared responsibility payment," is Section 5000A(b).
Like most liberals and many conservatives, as well as this writer, Fishkin thinks the mandate is clearly constitutional on multiple grounds. But if the Court determines that Congress has no power to impose the insurance requirement, Fishkin says, it can simply strike the requirement but leave the penalty in place. In other words, the law would no longer tell people to get insurance. Instead, it would merely tell people who don’t have insurance to pay a small fee to the government. On its own, Fishkin says, requiring such payment is a legitimate exercise of congressional taxing power.
In essence, if five of the justices want to maintain ObamaCare minus the individual mandate provision, Americans could still be compelled to purchase health insurance because they'd face a penalty if they didn't. It's like a mandate without the mandate. If the justices decide these two sections of the law can each stand on their own, we may be looking at a mandate by a different name. But if the Supreme Court rules that the law in its entirety is to be thrown out, ObamaCare will be scrapped, but I'd still wager Democrats will try to impose a similar mandate using Congress' taxing power.