06/29/2012 06:17 pm ET Updated Aug 29, 2012

The Benefits of ACA and the Uncertainty That Its Mandate Is A Tax

Mark June 28, 2012 -- the day that the Supreme Court upheld the Affordable Care Act (ACA) -- as the first day that health care starts to become a right, and not a privilege, for all Americans. Mark June 28, 2012 as the day that what Obama promised on the campaign trail against McCain in Nashville, Tennessee that health care was a right and not a privilege or responsibility has come true. Mark June 28, 2012 as the day when what FDR said in the 1940s about a Second Bill of Rights including the right to health has come to fruition.

To be sure, ACA will need improving, particularly so that upwards of 26 million more Americans will be able to access and afford health care over the additional 33 million citizens now to be helped through ACA among the following ways by being provided: (1) increased coverage for preventive services like mammograms and annual check-ups; (2) no limits on annual or lifetime limits on coverage; (3) coverage now for children with pre-exiting conditions; (4) coverage even though there exists a pre-existing condition; (5) Ob-Gyn services; (6) access to out-of-network emergency room services; (7) an appeals mechanism for health insurance plan decisions; (8) consumer assistance programs; (9) refunds from insurers unless they provide at least 80% of their revenues for reimbursement of medical care [the first such refunds are due this August]; (10) insurance even though an honest mistake was made in applying for it; (11) expanded prescription drug coverage [in the "doughnut hole"] within Medicare; (12) a reauthorization of the Indian Health Improvement Act; (13) coverage for children on their parents' policies up to the age of 26; health insurance exchanges effective 1-1-14 set up by states or in their absence by the federal government to allow those in the individual market more effective pricing of insurance through competition; (14) each state with the choice or option to participate in an expanded Medicaid program where $millions will be made available to the states; (15) a decrease in the number of patients without insurance who visit a hospital's emergency room each year [called "charity care"]; and (16) provides financial assistance and tax credits for individuals and small businesses who must struggle to pay for health insurance.

The above is quite a list to start ensuring health care as a right for our nation's citizens, particularly when those who oppose the President's health care law and the Supreme Court's ruling keep telling us the law does nothing we want. Kind of makes one wonder whether the opposition is now just sore losers with nothing but slop to throw against the wall, hoping that something will stick.

So, too, is the opposition now crying out that Obama's new law saddles Americans with $$$ in new taxes. Having read the opinion of the Court, do not believe any politician who criticized Chief Justice Roberts by saying this.

Here is a quick legal primer. The role of a court or a judge is to save where reasonable an enactment of a legislative body. Roberts and the majority of five did just that by first rejecting the commerce clause argument, saying in essence that being forced into the marketplace by, here, purchasing insurance, is not activity that can be regulated by Congress under commerce clause jurisprudence. But there was a second avenue and that was to see if the mandate within ACA could be saved through the taxing power of Congress, also found within the Constitution. While Roberts' opinion was quite nuanced, through it the law of the land became that regardless of whether a legislature calls money to pay the Federal Treasury for non compliance a penalty (as Congress attempted to do in ACA with the mandate), a fee, a fine, a surcharge or -- as Robert recognized it through ACA -- a shared responsibility payment, such an exaction can be analyzed through the Constitution's taxing authority. Names do not matter, for according to the majority of the Court, " '[M]agic words or labels' should not 'disable an otherwise constitutional levy.'" Some exactions to the Federal Treasury can be considered a tax; others called a tax may not be so under the Constitution.

Roberts also then opined that a levy for foregoing health insurance does not fall within any recognized category of direct tax upon citizens, or capitation (taxes paid by every person and apportioned among the several States). He added that it could be troubling to impose a tax for not doing something, though it is not new to encourage activity by providing tax incentives. Consider renting an apartment versus buying a home. With the former, one gets no tax deduction; with the latter property taxes are deductible. In the end, if the Congress has properly exercised its taxing power to encourage purchasing health insurance, then the mandate falls within Congress' taxing power to do so.

In order to uncover every stone to ensure ACA remained constitutional, the mandate was proper "because it can reasonably be read as a tax".

And if all of this were not confusing enough -- even for us lawyers -- an upfront part of the opinion concerned whether a federal law called the Anti-Injunction Act would bar the Court from even hearing the case. After all, if ACA's penalty for not buying insurance is a tax, it cannot be challenged until after it is paid, here that would be after April 15, 2015. But for purposes of this Anti-Injunction Act, Roberts wrote, "The Affordable Care Act does not require that the penalty for failing to comply with the individual mandate be treated as a tax for purpose of the Anti-Injunction Act. The Anti-Injunction Act therefore does not apply to this suit, and we may proceed to the merits."

Don't trust any politician that says Obama created the mandate as a tax; just pay attention atop this posting to what ACA provides all of us. We are all on our way to being ensured health care as a right; as Roberts concluded his opinion, "Under the Constitution, that judgment [the wisdom of the Affordable Care Act] is reserved to the people."