On the recordJuly 27, 2017
we are talking today, obviously, as we move into the final hours of this debate, about the two mandates in the original Affordable Care Act, the individual mandate and the employee mandate--certainly, the individual mandate but both of these mandates. First, I want to talk about the individual mandate. It was unprecedented in Federal law. The idea that the Federal Government could tell somebody they had to buy a product, tell them what that product had to look like, and have very little input on the price or competition is just something the Federal Government had never done before. They didn't just set guidelines, they didn't even just set subsidies but actually a requirement to buy a product or pay a penalty. Now, when this case got to the Supreme Court, the government was still arguing it was a penalty and there was nothing wrong with that penalty, until apparently they figured out the Court wanted to look at this as a tax because a penalty wouldn't have been constitutional. Now, we all know this is a penalty. The Supreme Court can call it a tax, the Obama lawyers could at that moment decide, well, even though we set up the law as a penalty, we really think it must be a tax, and that 5-to-4 decision decided that because it was a tax, not a penalty, that part of the law was upheld. Nobody ever thought this was a tax before that day, nobody has ever seriously thought it was a tax after that day.…
