Walter Dellinger — listing 5 Obamacare "myths" — begins with "The 'individual mandate' forces everyone to buy health insurance."

Dellinger, a former acting Solicitor General, has filed a brief on behalf of the Senate and House Democratic leadership in the case that will be argued before the Supreme Court next week.

Let's look carefully at how he purports to debunk this "myth":

The law states that, beginning in 2014, individuals must ensure that they and their dependents are covered by health insurance. Taxpayers who do not meet this requirement will have to pay a penalty that the law calls a “shared responsibility payment.” It begins at $95 for the first year and never exceeds 2 1/2 percent of anyone’s annual taxable income.

A large majority of Americans, of course, have health insurance through their employers, Medicare or Medicaid and are already in compliance with this requirement. Given the relatively modest payment required of those who choose not to maintain insurance, no one is being forced to buy a product they don’t want.

The challengers argue that the mandate is a binding requirement that makes anyone who goes without insurance a lawbreaker. The government has determined, however, that those who pay the penalty, like those who are exempt from the penalty, are not lawbreakers. As a practical matter, the so-called mandate is just a relatively modest financial incentive to have health insurance.

First, the "myth" refers to whether people are forced to buy insurance, not whether people are "made" into "lawbreakers." It's odd that he's introducing this "lawbreaker" concept. Second, what exactly has "the government... determined"? Dellinger is making it sound as though getting labeled a "lawbreaker" is some problem that the government is saving us from, but I think he only means that the government has given people an out — that people who don't buy are not breaking the law as long as they pay the "penalty." But the term "penalty" implies that you've done something wrong.

Are people who care about being law-abiding supposed to feel free not to buy insurance and simply pay the penalty? Presumably, Dellinger is saying yes, as if people who feel the rules apply to them are just being silly. For example, do you feel "forced" to follow the speed limit? Would Dellinger say you're not forced, because you have the option of paying speeding tickets? I don't think he would, and I'm sure he wouldn't assert that you're not even breaking the law when you speed as long as you pay your speeding tickets!

But perhaps Dellinger would say that what's different about the Obamacare penalty is that it's such a small amount. By contrast, speeding tickets are much more painful than the benefit of speeding, and after a few of them, you lose your license entirely. The Obamacare penalty is an attractive option. It's a way of life. It's pretty much just a little tax to swallow. The option of actually buying insurance will be forgone. It would make more sense to say you're forced to pay a new tax than you're forced to buy insurance. And what a tiny little tax! "It begins at $95 for the first year and never exceeds 2 1/2 percent of anyone’s annual taxable income."

So Obamacare doesn't work to get the uninsured insured, it just gives the federal government a new source of revenue. Meanwhile, these uninsured folks can buy insurance at whatever point they want, right? Whenever they acquire a condition that makes them want to have insurance, they can take advantage of private insurance companies that never got the benefit of the "penalty" these people were paying to the federal government all these years. So this scheme will destroy private insurance companies and is really a way to leverage in, by steps, a completely government-controlled health-care system.  Or have I arrived at another "myth" that Dellinger can rescue me from?

Nope. The closest thing on his list is #4: "The law is socialist." But here, Dellinger says it's not "the New Deal approach of having a monolithic government agency be the single provider of a good or service." (Whoa! Did he just accidentally call the New Deal "socialist"?)

Instead, the law adopts a new approach, one conservatives have long supported, of using providers in the private market to deal with social and economic problems.

Initially, yes, but it's not going to work, and many people suspect we're simply entering Phase 1, which seems more acceptable, but it's built to fail — that's the plan — and when it does, at Phase 2, the American people will accept the "socialist" solution, which they would not have accepted at the outset, because there will be no way to restore the private insurance business destroyed in Phase 1. Now, I have heard this conspiracy theory stated many times — e.g., by Rush Limbaugh — and I am certain Dellinger knows it. And yet it does not appear on his lists of myths. The inference is clear:

It's not a myth!

"There's a misimpression out there that... federal agents arrive in black helicopters dressed in fully equipped armed ninja costumes, kick down your bedroom door and drag you off at the point of bayonets to an insurance agency."

... hyperbolized lawprof Walter Dellinger at yesterday's Senate Judiciary Committee hearing on the constitutionality of the Affordable Care Act. (Video here.)

In fact, what -- all that happens is that for those who are not otherwise exempted and -- when they're filling out their federal income tax return, if you're not maintaining minimum coverage, you have to pay an additional 2.5 percent, much less than Social Security. That's all that happened.

So in that sense, this great intrusion on liberty doesn't approach any slippery slopes or exceed any understood limits in our legal culture. 

I thought the point of worrying about approaching slippery slopes is that we would otherwise accept one incremental intrusion after another and never see fit to draw the line and, thus lulled, we would lose our liberty.

The Senate must seat Roland Burris.

Says Walter Dellinger, who was a Supreme Court law clerk (for Hugo Black) when the Supreme Court decided the Adam Clayton Powell Jr. case (Powell v. McCormack):

In Justice Black’s view, one of the worst abuses of power in England resulted from parliamentary majorities wrongly refusing to seat dissident legislators. That experience makes me very wary about the Senate’s barring a person from taking a seat unless its authority to do so is clear. Here it is not.

Dellinger notes that Blagojevich is the governor, he has the appointment power, and he has exercised it:

The charges that he sought bribes to appoint certain candidates to the Senate do not automatically render illegal other official acts of his office like signing laws or pardoning criminals. And because there is no evidence that a bribe was solicited from, or proffered by, Mr. Burris, his appointment is presumptively lawful.

Nor do the other arguments against Mr. Burris’s appointment hold up. The contention by the Democratic leadership that Mr. Burris can be denied a seat because the Illinois secretary of state refuses to sign his appointment papers is without merit — it would confer upon secretaries of state absolute veto power over governors’ appointments.

The idea of delaying and giving the Illinois legislature a chance to impeach Blagojevich makes no sense, because Burris has been validly appointed, so he's in until the term is up in 2010.

There is still a separate question whether Burris can get into court (as I noted last Thursday). Dellinger says:

The Supreme Court decision in the Powell case did leave open the possibility that a Congressional decision finding that a member was not properly elected — in this case, appointed — might be a “political question” immune from judicial review.

But that some reasons for denying Mr. Burris this seat might not be subject to review by the courts means that the Senate should take more care, not less.

Exactly. When the court finds a case nonjusticiable under the political question doctrine, it is because it reads the Constitution as committing a particular constitutional question to one of the political branches of government. It is decidedly different from rejecting a Constitution-based claim on the merits. It is saying that some other branch of government is the final authority on the meaning of a part of the Constitution, and that indeed means that the nonjudicial branch that has this responsibility must look at the Constitution and figure out what it means and then follow it.

It absolutely does not mean that the other branch can simply carry out its political will.... something you'd never guess from watching Harry Reid.