Kennedy's compromise option: Strike down the mandate -- but keep the penalty

Joey Fishkin, an assistant professor of law at the University of Texas, proposed this option over the weekend. Writing at Balkinization,* Fishkin notes that the mandate to obtain insurance and the penalty for violating it are actually two separate sections in the Affordable Care Act. The mandate, known as the “minimum coverage requirement,” is Section 5000A(a). The penalty, known as the “shared responsibility payment,” is Section 5000A(b).

Like most liberals and many conservatives, as well as this writer, Fishkin thinks the mandate is clearly constitutional on multiple grounds. But if the Court determines that Congress has no power to impose the insurance requirement, Fishkin says, it can simply strike the requirement but leave the penalty in place. In other words, the law would no longer tell people to get insurance. Instead, it would merely tell people who don’t have insurance to pay a small fee to the government. On its own, Fishkin says, requiring such payment is a legitimate exercise of congressional taxing power…

The real problem with Fishkin’s proposal, though, may be the question of whether the penalty constitutes a tax. Defenders of the law have said, all along, that it is. The critics have disagreed, as have most but not all judges to rule on the case so far. Severing the penalty from the mandate might be enough to win over a justice or two, but it also might not.