Obamacare and Hobson’s Choice

by Ramesh Ponnuru

One persistent argument in the individual-mandate debate is that it’s not a mandate at all: The government isn’t forcing anyone to buy health insurance so much as it is offering them a choice: buy insurance or pay a higher tax bill (which proponents sometimes call a “fee” or “penalty”; they also sometimes say that this fee/penalty/whatever would be weakly enforced). Some follow-up questions for people who hold this view:

1) Would you characterize all laws this way? One could describe the laws against homicide the same way: The government isn’t saying you can’t kill people, it’s just offering you a choice of not killing people or going to prison. So would it therefore be reasonable to deny that the government forbids homicide?

2) If you don’t characterize all laws this way, does the difference lie in the severity of the consequence the government imposes?  If that’s what makes the constitutional difference, what if future Congresses slowly ramped up the penalty level? At some point would the mandate become an actual mandate? If so, at what point would the Court be justified in treating the mandate as a mandate?

Update: Forgot to add the bolded not in original.