During oral argument before the U.S. Court of Appeals for the Sixth Circuit in Thomas More Law Center v. Obama, one of the many challenges to the health care reform law (see WLF’s brief here), Acting Solicitor General Neal Kaytal suggested to the court that one way that individuals could avoid the insurance mandate would be to earn less money.
Citing a 1964 civil rights case, Heart of Atlanta Motel, Mr. Kaytal analogized the option of leaving the business for an owner who did not wish to follow anti-discrimination law to the option for a person to make less money so that they fall below the threshold requirement for those who must have insurance. Unlike Heart of Atlanta Motel, an individual cannot leave personhood in order to avoid having to purchase health insurance. But they can leave a prosperous career, Kaytal theorizes.
“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,” said Kaytal in response to a question by Judge Sutton.
While there is a difference between making a discrete legal argument in a court of law and an unpopular policy argument in the court of public opinion, it can’t be a good sign for the government’s eventual argument before the Supreme Court that the person sent to represent the administration’s position finds solace in such a rationale, even if it is “fanciful,” as Mr. Kaytal suggested. Giving individuals a choice between being compelled by the government to purchase a product they do not want or subjecting themselves to poverty so that government can provide it for them is no real choice at all.
Unfortunately, most businesses don’t have the option of making less or hiring fewer workers and will be penalized by the health care reform law. Unless, of course, they are one of the few that are lucky to get an annual waiver from the law’s requirements from the Department of Health and Human Services.