In an attempt to bypass the majority-Democratic Fourth Circuit, Virginia Attorney General Ken Cuccinelli filed a petition today asking the Supreme Court to bypass this intermediate court and hear his challenge to the Affordable Care Act immediately. The petition, which is exceedingly unlikely to prevail, is vintage Cuccinelli. It warns of a “steady drumbeat of new lawsuits” that “punctuate the news.” It attacks the so-called “florid deal-making” that led to an act being “cobbled together in secret.” The ACA, Cuccinelli warns, “has roiled America.”

Yet, while the petition spares no adjectives in expressing Cuccinelli’s disdain for health reform, one thing is conspicuously absent from the petition — a key argument that formed the basis of Judge Roger Vinson’s erroneous decision that the ACA cannot be sustained under Congress’ taxing power.

Vinson’s opinion is absolutely awash with errors. One of his biggest mistakes is his claim that the provision of the ACA which requires most Americans to either carry insurance or pay slightly more income taxes somehow ceases to be a valid exercise of Congress’ power to “lay and collect taxes” because Congress did not use the word “tax.” Nothing in the Constitution requires Congress to use certain magic words to invoke its enumerated powers. And no precedent exists suggesting that a fully valid law somehow ceases to be constitutional because Congress gave it the wrong name.

Like Vinson, Cuccinelli also claims that the ACA did not validly invoke Congress’ taxing power:

On the tax issue, the threshold problem for the Secretary is that there is a justiciable difference between a tax and a penalty.  “ ‘A tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’ ” A penalty not supporting a tax is not a tax penalty but a naked penalty requiring an enumerated power other than the taxing power to support it. Furthermore, even if the penalty were a tax “there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of a regulation and punishment.” Because at this point the penalty requires a supporting enumerated power independent of the taxing power—and the only possible one would be the Commerce Clause—the tax argument collapses back into the Commerce Clause argument.

Much of this paragraph is gobbledygook, but none of it mentions Vinson’s absurd claim that a law magically becomes unconstitutional if Congress gives it a certain name.

It is very unusual for a litigant to ignore an argument that has already swayed a judge on a lower court. Perhaps this is a sign that even Ken Cuccinelli recognizes that Vinson reasoning was flawed.

MIT’s Jonathan Gruber has published a new paper modeling the proposed alternatives to the individual health insurance mandate. While that provision will expand coverage to 32 million Americans, the two most talked about substitutes — auto enrollment and late enrollment penalty — offer less coverage at a higher cost to the newly insured:

- AUTO ENROLLMENT – 24 MILLION GAIN COVERAGE : Under this option, an individual is automatically enrolled in insurance unless she or he opts out. Gruber writes that employers could have an incentive to lower their health care spending by actively discouraging workers to opt of insurance and that younger employees — whose participation is so crucial to balance the health risk pool — would be more prone to going without coverage. That would increase premiums in the non-group market by 11 percent, he estimates. What’s more, auto enrollment would reach a small percentage of the uninsured, since “only about one-third of the uninsured are actually offered employer-sponsored insurance in which they can be auto-enrolled.”

- LATE ENROLLMENT PENALTY – 21 MILLION GAIN COVERAGE: With this alternative, an individual can opt-in to insurance under the Affordable Care Act, but then pay a penalty for enrolling at a later date. The effectiveness of this approach will depend on the size of the penalty, but that poses its own set of politically challenging decisions. As Gruber notes, “It seems highly unlikely that the federal government would be willing to tell a 30-year-old individual with cancer that they can’t get insurance coverage because they didn’t sign up when they were 27 years old — or that they have to pay some very large amount of money in the same situation.” Moreover, if younger people stay out of the risk pool, “they will raise prices for those left behind, causing even further exit — and potentially unraveling the entire market.” Gruber estimates premiums in the exchange “would rise about 20 percent relative to the mandate case as the healthy exit the exchanges.”

Politically vulnerable senators like Sens. Claire McCaskill (D-MO), Bill Nelson (D-FL) and Ben Nelson (D-NE) are publicly considering offering more popular alternatives to the mandate, but in doing so they should be mindful of the fact that any new solution should not go back on the progress made in current law. Democrats also shouldn’t be buying into the GOP’s premise that there is something inherently wrong or terribly coercive about asking able individuals to take personal responsibility for their health care expenses. Instead of playing defense, they should be reminding the public of the long history of Republican support for the idea.