Entire Media Skips Team Obama's Neat Idea in Court: Avoid Individual Mandate by Going Poor

On Thursday, Philip Klein at the Washington Examiner publicized a whopper from Obama’s solicitor general Neal Katyal defending ObamaCare (and Mark Levin teed it up and whacked it to the fairway on the radio). But it was blacked out by all the networks – and all the major newspapers and wire services. Get a load of this: "President Obama's solicitor general, defending the national health care law on Wednesday, told a federal appeals court that Americans who didn't like the individual mandate could always avoid it by choosing to earn less money."

What? Would the president really like to tell a press conference that one can exercise their God-given liberty to avoid the individual mandate by putting oneself in the poorhouse and claiming a "hardship exemption"? Here’s how Klein reported the argument unfolded:

During the Sixth Circuit arguments, Judge Jeffrey Sutton, who was nominated by President George W. Bush, asked Katyal if he could name one Supreme Court case which considered the same question as the one posed by the mandate, in which Congress used the Commerce Clause of the U.S. Constitution as a tool to compel action.

Katyal conceded that the Supreme Court had "never been confronted directly" with the question, but cited the Heart of Atlanta Motel case as a relevant example. In that landmark 1964 civil rights case, the Court ruled that Congress could use its Commerce Clause power to bar discrimination by private businesses such as hotels and restaurants.

"They're in the business," Sutton pushed back. "They're told if you're going to be in the business, this is what you have to do. In response to that law, they could have said, `We now exit the business.' Individuals don't have that option."

Katyal responded by noting that there's a provision in the health care law that allows people to avoid the mandate.

"If we're going to play that game, I think that game can be played here as well, because after all, the minimum coverage provision only kicks in after people have earned a minimum amount of income," Katyal said. "So it's a penalty on earning a certain amount of income and self insuring. It's not just on self insuring on its own. 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. I think both are kind of fanciful and I think get at."

Sutton interjected, "That wasn't in a single speech given in Congress about this...the idea that the solution if you don't like it is make a little less money."

Klein added that this "neat idea" from Team Obama may not actually work out: "The so-called 'hardship exemption' in the health care law is limited, and only applies to people who cannot obtain insurance for less than 8 percent of their income. So earning less isn't necessarily a solution, because it could then qualify the person for government-subsidized insurance which could make their contribution to premiums fall below the 8 percent threshold."

Tim Graham's picture

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