Is the Individual Mandate Really a Mandate?

In today’s argument, Chief Justice Roberts had an interesting series of questions on a matter that we debated a bit here at the blog: If the penalties for violating the individual mandate are really weak, is the regulation really a “mandate”? The exchange arose when Greg Katsas (a lawyer challenging the mandate) argued that the Tax Anti-Injunction Act does not apply because the real purpose of the lawsuit is to challenge the individual mandate, not the collection of taxes, and that the mandate and the penalty for violating the mandate should be construed as two very different things. That led to this exchange:

CHIEF JUSTICE ROBERTS: The whole point -the whole point of the suit is to prevent the collection of penalties.
MR. KATSAS: Of taxes, Mr. Chief Justice.
CHIEF JUSTICE ROBERTS: Well prevent of the collection of taxes. But the idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense.
MR. KATSAS: It’s entirely separate, and let me explain to you why.
CHIEF JUSTICE ROBERTS: It’s a command. A mandate is a command. If there is nothing behind the command. It’s sort of well what happens if you don’t
file the mandate? And the answer is nothing. It seems very artificial to separate the punishment from the crime.
MR. KATSAS: I’m not sure the answer is nothing, but even assuming it were nothing, it seems to me there is a difference between what the law requires and what enforcement consequences happen to you. This statute was very deliberately written to separate mandate from penalty in several different ways.
They are put in separate sections. The mandate is described as a “legal requirement” no fewer than 20 times, three times in the operative text and 17 times in the findings. It’s imposed through use of a mandatory verb “shall.” The requirement is very well defined in the statute, so it can’t be sloughed off as a general exhortation, and it’s backed up by a penalty. . . .
CHIEF JUSTICE ROBERTS: Why would you have a requirement that is completely toothless? You know, buy insurance or else. Or else what? Or else nothing.
MR. KATSAS: Because Congress reasonably could think that at least some people will follow the law precisely because it is the law.

It’s hard to make any firm conclusions from the exchange, of course. But the challenge to the minimum coverage provision is premised on the idea that the mandate is really a genuine mandate, not just some sort of generalized incentive, and that argument rests in significant part on seeing the mandate as separate from the penalty. We’ll have to wait and see tomorrow how many Justices accept that framing of the statute.

UPDATE: A commenter suggests that the audio leaves a different impression than the transcript; you can listen yourself at the 1:15 mark. Also, it’s obviously not the case that framing the minimum coverage provision together with the penalty provision as a single entity necessarily means that one doesn’t see it as a mandate. But my sense is that it does change the optics of the issue.

ANOTHER UPDATE: Talking Points Memo has a story on this exchange here.