When is a mandate not a mandate? When there's nothing to enforce it.
That's the situation with the supposedly mandatory provision in the Affordable Health Care Act. Recently Lawrence O'Donnell (MSNBC's "The Last Word With....") put up on-screen some of the text of the Affiordable Health Care Act, specifically (1) the section which forbids any criminal prosecution of someone not buying health insurance and (2) the section which prohibits the feds from attaching anyone's property so as to collect the penalty for failing to buy health insurance.
What's this mean? It means the law says you HAVE to do something and, if you don't, NOTHING will happen. Well, that's hardly a mandate, is it? O'Donnell didn't seem to think so. And I agreed with him. No one else in the media paid his segment any attention whatsoever.
I called someone who enjoys chewing on legal questions, and we kicked it around. But I finally concluded that Congress must have anticipated that the "penalty" was going to be collected as part of the payroll withholding tax system in such a way that the taxpayer-uninsured wouldn't be able to avoid paying it. It would just become part of subsequent withholding - somehow. I couldn't believe that all the fuss about the "mandatory" insurance requirement was absolutely baseless because there was no provision to enforce a penalty. After all, nothing is mandatory without an enforceable "or else", right?
Well, today Chief Justice John Roberts raised the same point in the hearing on the constitutionality of the so-called mandate. He made the EXACT same point: if there's no "or else", is there even a mandate at all? That is virtually what he said word for word.
How comic it would be if, after all this hair-pulling crazy carrying-on about the Health Care Act, the Supreme Court calmly says, "There's no mandate. Thus there's no unconstitutional mandate. So good night, Charlie.""
It would be so sweet in a way. Like the little child saying "The Emperor has no clothes." Like mom coming into your room to show you there's no monster in the closet. It would even be poetic (to paraphrase): "That's how the world ends, not with a bang but a snicker."
Did the Congress intend that this be a mandate without being a mandate? Was it that clever? Nancy Pelosi was briefly on the teevee last night, saying words to the effect that "we aren't fools, and we knew what we were doing." No indication that she was talking about the mandate not being a mandate, but maybe she was?
It doesn't matter what was in the secret minds of those enacting the law. All that matters is what they put down on paper, either in the legislation or (to much lesser extent) what they noted down somewhere as "legislative intent". But think about it. Even if they had been clever enough to create a red-herring of a provision, a mandate that's not a mandate, they couldn't very well say so - not then, not now, not ever. Absent any enforcement provision, the so-called mandate could work only if the public thought it had some teeth.
This is the first time in my long life when the US Supreme Court seems to be veering into comedy. Call it "Much Ado About Nothing"?
And nothing promises so much fun as this issue cum Robert's query. At least not since the time I was among the observers in an appellate court that was hearing a male-stripper/ mud-wrestling case. It was wonderful, and we all - including the judges - had a wonderful time!
Come on, Roberts! Go for it! Pull the carpet on the whole shenanigans! Make the GOP AGs look like the utter fools that they are! Make the Congress look as toothless as it chose to be! Show the world that it pays to read and analyze legislation before running to court to protest what isn't there.
The bizarre truth is that few law schools have courses on analysis of legislation or drafting of legislation. I taught and practiced both. Will this old prof's passion for legislative analysis finally be vindicated? "It is a consummation devoutly to be wished." Not just for my gratification but because it would be a nice slap in the face of the far-right which consistently and brazenly ignores facts and words and science and loves to load monsters into the closets to frighten our people.
Please, pretty please, Roberts! GO FOR IT!