Ask me a stupid question, and you’ll get a stupid answer. That’s how Mitt Romney must feel after reporters pestered him on the Fourth of July with queries about whether the ACA’s tax penalty, or penalty tax, is a tax or a penalty. Romney responds that if Roberts says it’s a tax, then it’s a tax. “Aha!” the reporters say: “Then you think it’s a tax! We have him now.”

Good lord. The ACA was a bad law before the Roberts decision, and it is still a bad law after the Roberts decision. It was wrong to impose a fine for inactivity before Roberts’ ruling, and it is still wrong to impose a penalty for inactivity after the ruling. Yet now both political parties have jumped into the gotcha game with gusto. “We gotcha, Barack Obama! You said you wouldn’t raise taxes on the middle class, and look what you’ve done: raised taxes!” “We gotcha, Mitt Romney! Your campaign director said the penalty is a penalty, and now you say it’s a tax. What do you say to that, you flip-flopper?” 

Honestly, this kind of political conversation doesn’t even qualify as conversation. It’s tiresome. We have a health care system that badly needs reform. We have health reform legislation that makes things worse. Playing gotcha some more is the best we can do? People are beyond losing patience with this kind of talk. They are beyond losing patience with leaders who don’t lead. We have party operatives who just want to win elections. To hell with leadership. 

John Roberts’ decision reminds me a little of Roger Taney’s Dred Scott decision. In both cases, the nation looked to the Supreme Court to settle a divisive issue where a lot was at stake, and where the Constitution did not contain clear guidance. In both cases, the Court handed down reasoning that possessed neither moral clarity or courage. In both cases, the chief justice seemed to search for a solution that would minimize hard feelings. The Court’s aim in both cases seems to have been, we can wend our way out of this legal thicket one way or another if we forget about the moral question at stake.

I suppose we can excuse a jurist for thinking that way, but it does not serve the country well. In the Dred Scott case, abolitionists in the north wanted some kind of statement that slavery is morally wrong, that one man cannot own another, especially not in states where such ownership is prohibited. Instead Taney overturned the Missouri Compromise and said that the Constitution authorizes ownership of slaves in states and territories that forbid the practice.

The Affordable Care Act raises entirely different issues, but the moral component here is similarly high. A majority of people in the United States oppose the Affordable Care Act. They sought the Court’s opinion on this question: can you force people to buy something like health insurance and still have a free society? Like the other two branches of government, the Supreme Court seems to have acquired the punting instinct. Instead of addressing directly the issues raised in oral arguments, the Court ruled that the penalty imposed for non-compliance isn’t a penalty after all. It’s a tax, so it’s alright to impose it. 

I suppose that’s what you get when you appeal to a Court that thought it was alright to appoint the previous president in 2000. Yes, I admit that if the Court had used poor reasoning to strike down the Affordable Care Act, I would not likely be so critical. Instead it used narrow reasoning to define the act’s key enforcement mechanism, and ignored whether government has power to lay the requirement that lies behind the tax penalty. The Court ruled that Dred Scott was not entitled to his freedom, and it tells all of us that we must comply with the ACA or pay a fine. We will not fight a civil war over the Affordable Care Act, but the civil disobedience that it provokes may at last begin to pull some states out of Washington’s orbit. 

Many have criticized ACA opponents for not proposing an alternate plan. Let’s end with a look at some ideal outcomes. What would ACA opponents like to gain from health care reform? Let’s think then about how an ideal health care system would operate. For the moment, we needn’t consider how we would travel from where we are to the ideal.

• No people dying in the streets with no care.
• The cost of health care is set by supply and demand.
• Supply and demand also determine the allocation of resources within the health care system. This allocation occurs across age groups, across types of care, across the various activities and institutions that accomplish the system’s goals.
• Health insurance functions as insurance, to protect against medical catastrophes.
• Health insurance is independent of employment.
• Individuals and households can purchase whatever kind of insurance they like, wherever they like. Health insurance companies must provide plans that individuals and households are willing to purchase.
• The tax system treats all health insurance payments equally. Either they are all deductible, or they are all not deductible.
• The relationship between physicians and patients governs the choices they make together.
• Delivery of health care services is timely. Patients should be able to obtain treatment when they need it.
• The quality of health care due to innovation, professionalism, technology, and advancement of medical knowledge is high.

Affordability is the touchstone – affordability for the government and for households. We want the health care system to give us what Apple offers at the high end and Nokia offers for a little less: good quality at a price we can pay. We say we want to bring health care costs down, but that’s not entirely accurate. More precisely, the government wants to bring its health care costs down, as it cannot afford the current rate of growth in that part of its budget. If we allocate resources in the health care sector entirely by supply and demand, the total cost of health care might rise instead of fall. That would be fine, if individual choices in the health care market had that result. The important thing for the government is that its own costs go down, whatever happens in the sector as a whole.

For all the trouble it causes, politicians must like pulling reporters, their loyalists and their opponents into games of gotcha, or they wouldn’t do it so much. It saves everyone from having to think. We have enacted health care legislation that sinks government ever more deeply into a sector that does not benefit from government involvement. Does anyone think we would have iPhones if government ran Apple? To reform health care, we want to go in the other direction, to fashion a health care system that operates as independently from government as possible. Squabbling about what to call the fee that the IRS collects if we don’t buy health insurance is not a good use of our energy or our intellects.