Obama’s solicitor general made this argument when questioned by the Sixth Circuit Court of Appeals:
During the Sixth Circuit arguments, Judge Jeffrey Sutton, who was nominated by President George W. Bush, asked Kaytal if he could name one Supreme Court case which considered the same question as the one posed by the mandate, in which Congress used the Commerce Clause of the U.S. Constitution as a tool to compel action.
Kaytal conceded that the Supreme Court had “never been confronted directly” with the question, but cited the Heart of Atlanta Motel case as a relevant example. In that landmark 1964 civil rights case, the Court ruled that Congress could use its Commerce Clause power to bar discrimination by private businesses such as hotels and restaurants.
“They’re in the business,” Sutton pushed back. “They’re told if you’re going to be in the business, this is what you have to do. In response to that law, they could have said, ‘We now exit the business.’ Individuals don’t have that option.”
Kaytal responded by noting that there’s a provision in the health care law that allows people to avoid the mandate.
“If we’re going to play that game, I think that game can be played here as well, because after all, the minimum coverage provision only kicks in after people have earned a minimum amount of income,” Kaytal said. “So it’s a penalty on earning a certain amount of income and self insuring. It’s not just on self insuring on its own. So I guess one could say, just as the restaurant owner could depart the market in Heart of Atlanta Motel, someone doesn’t need to earn that much income. I think both are kind of fanciful and I think get at…”
Sutton interjected, “That wasn’t in a single speech given in Congress about this…the idea that the solution if you don’t like it is make a little less money.”
So now it’s not a mandate…you can opt out as long as you make sure you are poor enough. Guess we can all quit our jobs and work at McDonalds.
Woops, forgot they got one of those waivers
Alas, as the article points out, Kaytal may be wrong anyways:
The so-called ‘hardship exemption’ in the health care law is limited, and only applies to people who cannot obtain insurance for less than 8 percent of their income. So earning less isn’t necessarily a solution, because it could then qualify the person for government-subsidized insurance which could make their contribution to premiums fall below the 8 percent threshold.
Oh well, back to the drawing board.
“I Do Think At A Certain Point You’ve Made Enough Money”