Joey Fishkin, an Obamacare supporter, wants to see the Supreme Court leave the entire thing in place except remove the “exhortation”, so that those who violate the mandate aren’t doing anything wrong, but still have to pay the same penalty. Basically, he wants to strike the word “mandate” but change nothing of consequence.
Fishkin is apparently a law professor (at least he’s writing on a law blog), but this is crazy. He seems to believe that the only issue here is whether the government is casting moral aspersions on people’s actions. I’m not a lawyer, but the oral arguments made clear that the Court was wrestling with weightier matters (such as limiting principles for government power) than whether the government thought well of people.
Moreover, this assumes that the mandate passes muster as a tax. Many are assuming that, but the Court didn’t even hear arguments on the subject. Some scholarship has suggested that it can’t stand as a tax either.
UPDATE (6/28): Well, I guess it’s not crazy after all.