THE Supreme Court's ruling that the health-insurance mandate is constitutional because it differs from a tax only in a pointless semantic sense is a bitter defeat for those of us who love pointless semantic distinctions. It has been a great disappointment to me to learn that you can't (for example) get out of paying real-estate taxes on your house by claiming it's really a very large, very heavy car, because the law isn't actually a word game. I like word games! But John Roberts emphasises in his opinion that the court doesn't treat the question of whether the mandate is a penalty or a tax as a word game:



Kidding aside, one of the most profound reasons for relief at yesterday's ruling was the recognition that victory in a deep ideological and political struggle, of tremendous consequence for Americans in need of health care, would not be awarded on a technicality. It was widely recognised that had the ACA explicitly phrased the "shared responsibility payment" as a tax rather than a penalty, it would have been clearly constitutional for the same reasons established in the fight over the constitutionality of Social Security in 1937, grounded in the federal government's authority to tax and to spend for the improvement of the general welfare. The Democratic authors of the ACA chose to phrase it as a penalty rather than a tax for political reasons. If the fact that the word "tax" is unpopular among voters while the word "penalty" is viewed as suspect by the Supreme Court had led to universal-health-insurance legislation being disqualified for purely linguistic reasons, given the partisan nature of the match, the partisan affiliations of the referees, and the extraordinary real-world stakes, there would've been political hell to pay.

But just as the verdict wasn't based on semantics, the underlying political dispute over universal health insurance isn't resolved by the judgment that the mandate is constitutional because it can be construed as a tax. That dispute runs much deeper. The argument over Obamacare wasn't and isn't, at root, about whether or not the federal government can order people to buy something, as opposed to taxing them and buying it for them. The argument is, at root, about whether wealthy citizens should be required to pay for poor citizens to get health insurance, and about whether healthy people should be required to pay for sick people to get health care. There are some exceptions, but broadly speaking, people who wanted Obamacare struck down yesterday do not think that Americans should have a right to health insurance. People who wanted to see it upheld, do.

You can express the fundamental argument here several ways. At one level, it is an argument between people who are most concerned about moral hazard, on the one side, and people who are most concerned about minimising arbitrary individual risk, on the other. The moral hazard of universal health insurance is the same as that of any insurance: when the lucky must pay for the misfortunes of the unlucky, the incentive to avoid misfortunes is diminished. But as with any insurance, leaving people out increases the risk of arbitrary catastrophe for those not included. The argument tends to become one between the strong and the weak: between those who are likely to benefit from an all-inclusive scheme, and those who are likely to have to pay. But it's a relief to have the question of the constitutionality of the individual mandate out of the way, because it has been a distraction. The real argument is more basic, and it would be healthy if we could start to address it head-on.

Read on: Our colleague on Free exchange has more on the choice of words in Obamacare.