In their campaign to manufacture false attacks on health care reform, the right-wing media has seized on a new, obscure, and absurd argument: that, in oral arguments debating the merit of a legal challenge to the Patient Protection and Affordable Care Act's (PPAC) individual mandate provision, Neal Katyal, the acting solicitor general of the United States, recommended that individuals who do not want to be subject to the mandate could choose to "make less money." Cue the right wing freakout.
The usual right-wing blogs led the charge, with Doug Powers writing: "Don't like the individual mandate in Obamacare and can't get a waiver? No problem -- just be poor." Perpetual misinformer Jim Hoft claimed: "Obama's solicitor general, Neal Kumar Katyal, told a federal appeals court that Americans who didn't like the individual mandate could always avoid it by choosing to earn less money," and concluded, "So there you have it. This is the Obama administration philosophy. Don't work so hard. Make less money and let other people pick up the tab. That should do wonders for the economy." A Red State blogger wrote (emphasis in the original): "That's Katyal advice to all of us that don't like the mandate or consider it unconstitutional...make less money."
Not to be outdone, the morning crew at Fox & Friends predictably ran with the story. After listening to the audio, co-host Steve Doocy referenced the upcoming legal challenge in Florida and asked "is that the best they can do? If you don't like it, make less money?" while co-host Brian Kilmeade called Katyal's supposed argument, "anti-American." Gretchen Carlson asked: "Do you think this guy misspoke or is telling the truth?" Watch:
In the oral arguments debating the merits of the case (the relevant portion begins just before the 50-minute mark), Katyal responds to a question by Circuit Court Judge Jeffrey Sutton regarding whether or not the Supreme Court has ever heard a case similar to this by referencing the 1964 case Heart of Atlanta Motel v. United States. In this case, the motel in question wished to continue to refuse to provide rooms to African Americans. The motel argued that Title II of the Civil Rights Act which prevents discrimination in places of public accommodation, was not a valid exercise of Congress' power under the Commerce Clause.
Katyal argued that the case demonstrated Congress' constitutional ability to "forc[e] people to do something that they wouldn't otherwise do" if it pertained to interstate commerce. Sutton claimed the cases weren't similar because the motel could "exit the business" as an alternative to complying, but that individuals have no similar ability. As a counter-example, Katyal said that if Sutton wanted "to play that game," than it was equally true that under the Affordable Care Act, an individual could chose to make less money as an alternative to complying with the individual mandate, as the hardship exemption in the health care reform bill means that individuals under a specific income threshold are exempt from penalties associated with the individual mandate.
Katyal wasn't advising people to make less money, he was simply pointing out that if one made the argument that the motel owner in Heart of Atlanta Motel had the option to leave the motel business to avoid the Civil Rights Act's non-discrimination mandate, one would also have to accept the argument that a person has the option of making less money to avoid the health insurance mandate under the Affordable Care Act.
But in a section of the transcript not included by any of the right-wing media, Katyal made crystal clear that he didn't think that in the real world people have the option of making less money. Katyal specifically stated that it was "kind of fanciful" to assume that either group would make that decision (full transcript below). In other words, Katyal was saying motel owners don't really have any option but to comply with the Civil Rights Act of 1964 just like individuals don't have any choice but to comply with the Affordable Care Act.
Here is the transcript in case you're interested in what was actually said:
KATYAL: This is quintessentially economic in a way that other things weren't --
SUTTON: The other side says Congress has never used this particular type of tool to solve a commerce clause issue or commerce issue, interstate commerce issue. Do you agree with that, or do you think there's some cases that show that's not quite true? There actually are cases where congress as part of a broader regulatory scheme has "forced action?"
KATYAL: Oh sure, I mean I think indeed even this court's decision in United States v. Fosse itself characterized it as regulating inaction but I think -
SUTTON: Let's focus on the second most important court here, US Supreme Court, how would it go there?
KATYAL: Well, I - I think the United States Supreme Court has never confronted directly with that although there have been any number of cases which you could characterize that way such as Heart of Atlanta Motel. You're forcing individuals to serve.
SUTTON: No, no, they're in that business already though.
KATYAL: Well, but they're in that business but they're forcing people to serve - they're forcing people to do something that they wouldn't otherwise do.
SUTTON: They're in the business, 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.'
KATYAL: Sure -
SUTTON: Individuals don't have that option.
KATYAL: Judge Sutton, if we're going to play that game, I think that game could be played here as well because after all, the minimum coverage provision only kicks in if people have earned a certain amount of income. So it's a penalty on earning a certain amount of income and self-insuring. It's not just on self-insuring on their own. So I guess one could say, just like 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 the -
SUTTON: That wasn't one of - in any, a single speech given in Congress about this law.
KATYAL: Well, I think that -
SUTTON: The idea that the solution if you don't like it is make a little less money?
KATYAL: No because the solution -- in justice, it wasn't of course in Heart of Atlanta Motel that people said 'you don't have to be restaurant owners' and the like, and I think what congress was reacting to was a world in which there are 50 million people who are uninsured and who are increasing the premiums, across state lines, to the tune of $1,000 per family.