03/28/2012 09:24 am ET Updated May 28, 2012

Paul Clement Calls for Tax Hike in Supreme Court Arguments Against Obamacare

In Tuesday's oral arguments at the Supreme Court about the Affordable Care Act, the attorney representing the 26 states challenging the law called for a new general tax to pay for the costs of ending the private insurance industry's discrimination against women and people with health conditions.

It appears to be a thus-far overlooked moment that revealed that the law's opponents don't have any other ideas for how to guarantee that all Americans have access to quality, affordable health care that they can count on. So Paul D. Clement, legal icon of the conservative movement, found himself suggesting a tax hike that violates every fiber in the political body of congressional Republicans as well as the Grover Norquist pledge to never raise taxes in any way or for any reason -- ever.

In the two hours the court devoted to the individual responsibility provision, or the so-called mandate, there was a frank discussion about the cost of providing care for people without insurance. It was acknowledged that the insurance industry discriminates against sick people -- by refusing to cover them and charging them more, and dropping people when they get sick -- because that's how they make money.

Obviously it would be more cost-effective and efficient, and would make people healthier, if we had a mechanism to ensure that everyone had insurance. That would also eliminate uncompensated care and more broadly spread the costs of ending insurance company discrimination. But that's the Obamacare law that the Republicans want the court to strike down. They're also against Medicare for all because that would be socialist and put the private insurance industry out of business, although it does have the virtue of being unquestionably constitutional. So that leaves dealing with the problem on the back-end of the process in the way America's conservatives know and like best: add up the private costs and use public funds to pay for them.

Specifically, in an exchange between Justice Ginsberg and Clement about how to pay for the costs of requiring insurers to accept all comers and not discriminate in coverage and price against people who need health care, Clement said the following:

I think there are other options that are available. The most straightforward one would be to figure out what amount of subsidy to the insurance industry is necessary to pay for guaranteed issue and community rating. And once we calculate the amount of that subsidy, we could have a tax that's spread generally through everybody to raise the revenue to pay for that subsidy.

This is as objectionable as it is ironic. I suspect that Clement's national health care tax may not be what the political opponents of the law had in mind when they hired him. Clement's tax hike is certainly not what organizations like the Koch Brothers-funded Americans for Prosperity are trumpeting on their website and in their public statements.

Clement's tax hike suggestion also blurs the most basic fact about their case and their approach to this issue: the Republicans aren't interested in doing anything to address America's health insurance crisis. It's not an accident that they don't have any real alternatives -- they just don't appear to care.