07/02/2012 05:26 pm ET | Updated Sep 01, 2012

The Affordable Care Act, Yogi Berra, and a Tax Is Not a Tax

Famous NY Yankee Hall-of Fame catcher, Yogi Berra, famously once said, "It Ain't Over 'Till It's Over". And, boy was he right when it came to the United States Supreme Court deciding the constitutionality of Obamacare (ACA). As reported elsewhere on the pages of HuffPost, CBS chief legal correspondent, Jan Crawford, writes about how Chief Justice flipped his vote into upholding the affordable care act from joining his legal colleagues on the bench in striking it all down. This occurred as late as early June, long after the oral arguments in March took place. Even CNN's Jeffrey Toobin reported immediately after they were over that the March hearings were a train wreck for the administration [Toobin has since recanted in light of how the Supreme Court ruled on June 28]. But the point is when it comes to deciding how a court will decide a case based upon an oral argument, remember, "It ain't over 'till it's over" and the Affordable Care Act majority opinion stands for this admonition as much as anything else contained in the decision.

So what is left? First and foremost is to hammer home the benefits of Obamacare. That has already been reported in HuffPost and certainly by every news and media outlet, e.g., "The Benefits of ACA and the Uncertainty That Its Mandate Is A Tax." In this regard, while the Supreme Court has made a judicial pronouncement that the mandate can be considered a tax for constitutional jurisprudence, from a legislature's perspective or from a practical sense for all citizens, such a "tax" paid to the U.S. Federal Treasury is no better than what the Congress described it as a penalty but maybe it is better to think of it as a fine, or a levy, or a surcharge, or an individual responsibility payment. It is nothing more and nothing less. Obama did not call it a tax, and, now, today (July 2), Romney has said it is not a tax either.

Consider as well that whatever one wishes to call this payment, it is intended to motivate Americans who can afford to purchase health insurance to conform their conduct to help out America's health care system by having health care insurance. Has anyone ever received a bill from a vendor in the private market that provides if a payment is not made within 30 days, there will be charged interest on the unpaid balance? Of course we all have. The interest is to motivate us to pay on time. Taking this argument from another viewpoint, what if instead Obamacare provided a $500 rebate, or even a credit on our tax return (like we get as a deduction for property taxes if we own a home versus renting or if we install an environmentally approved device like certain windows) if we buy a health insurance policy? There certainly would not be an outcry that the government is forcing something down our throats, even though a credit or rebate is attempting to have us conform our behavior and conduct in a certain way. Or what about the additional monies paid into government coffers charged for a pack of cigarettes these days in order to get those of us who smoke to quit. Get the point?

Such a payment also will not constitute $500 billion in taxes on the middle class, as Romney said the other day that ACA's mandate would become. After all, those who can afford to buy a health care policy but choose to not do so will amount to perhaps 1 percent of the population according to everything we have all read. But the point is that the mandate is no better or worse than anything else intended to have us conform our conduct in a certain way. It was called a tax by our legal system now since that was the way to find it constitutional under Congress' taxing authority. With health care, the mandate is even more important than something we do that only affects ourselves (like curtailing smoking or buying a home), since not having health insurance and requiring medical care at, for example, a hospital, requires those of us who are insured to pick up the tab.

So, now that the Supreme Court has decided that ACA is legal, let's get on with the business of implementing its provisions. ACA is a start to having citizens afford and access health care, and also a start to achieving health care as a right for all Americans. Remember, too, achieving and maintaining the health of a person in the Commonwealth of Massachusetts as Romney provided its citizens when he signed into law "Romneycare" is no different than what every citizen wants to see related to his or her health!