The law’s challengers have responded that the mandate is a binding requirement that makes anyone who goes without insurance a lawbreaker. Here is where the court could give a theoretical victory to the challengers: By saying that if you did read the law that way—as its text seems to suggest—as making lawbreakers out of those who don’t acquire health insurance, it would be unconstitutional. But we don’t read it that way, the court could say. We read it as nothing more than an incentive to purchase coverage. No one is compelled to make a purchase from a private party because they can choose, instead, to pay a relatively modest penalty that never exceeds 2.5 percent. This makes the decision about whether or not to have insurance a genuine choice, not a compulsion.
At this point, a compromise-prone majority would have a couple of choices. The first would be to accept Solicitor General Donald Verrilli’s astute suggestion that the court avoid the constitutional issue by reading the law as giving a real choice to citizens: Have insurance or pay a modest penalty. Either way is compliance, not lawbreaking, the solicitor general says. Or the court could decide the text does not permit that reading but the Constitution compels it. The provision stating that everyone must obtain coverage or be a lawbreaker is unconstitutional, but the linked provision imposing modest financial incentives to have coverage is acceptable and can stand. (I advanced this thought at a recent session of the American Constitution Society and soon learned that I was not the first or only person to make this suggestion. See, for example the similar thoughts of Joey Fishkin and Jonathan Cohn.)
So a compulsory mandate would be unconstitutional but a financial incentive that leaves the choice to the individual would be OK. The practical effect would be to uphold all the operative provisions of the Affordable Care Act, while firmly planting a liberty flag that would limit future Congresses.