Naomi Schoenbaum has an interesting piece in The Atlantic about how the individual mandate should be characterized–as a tax or as a penalty. No, she isn’t referring to the statute itself, or the Constitution, or even to Chief Justice Robert’s saving construction.

Rather, she looks at the issue in terms of framing–which characterization will make more people comply.

In particular, the way we frame the options we have influences which option we choose. For instance, people will tend to spend money more if they think the money they are receiving is a $1,000 “bonus” payment rather than a thousand dollar “rebate” payment. The dollar amount might be the same, but the framing of it is different.

In other words, what we call things matters. And labels matter when it comes to the health care law as well. Much discussion was devoted to the political costs of framing the mandate a tax as opposed to a penalty, but much less discussion was given to the policy costs of this label. (Solicitor General Donald Verrilli raised this issue briefly during oral arguments before the Supreme Court.) With the mandate not due to go into effect until 2014, it is too early for us to have direct empirical data about how framing will matter for the health care law in particular, except the data showing that Americans still have “confusion” about what the law is. But there is extensive experience and research suggesting that framing it as a tax might reduce the number of people who comply.

Oh it is a tax. Except its not a tax. But it is a tax. And if it is a tax, it must originate in the House, not the Senate. But it is not that kind of tax. Sorry, legalese getting in the way. Back to the argument at hand.

I wonder if this makes any sense to CJ Roberts:

First of all, it may be that the threat of moral judgment makes the command to buy health insurance sound more like a true mandate. Before the Court’s decision, President Obama told ABC News that calling the mandate a penalty was purposeful, an attempt to communicate to people that they have a “responsibility”and that failing to live up to it would not be considered “fair.” Massachusetts Governor Deval Patrick kept pushing the penalty framing even after the Court’s decision because he felt that only the penalty language signaled an aggressive attempt to deal with problematic “freeloaders.” Penalties suggest that you have to do something, and that failing to do it is wrong. Calling something a tax, on other hand, makes the matter appear more of a choice: buy health insurance or pay the government for failing to do so–we don’t care.

It is precisely the type of moral judgment the penalty label brings that can be effective at getting people to do something we want them to do–even more than making them pay for not doing it. A study at several Israeli day care centers found that people were more likely to show up late for their kids after a lateness fine was instituted than when latecomers suffered only shame. It turns out that moral judgment was better at generating compliance than a fine.

On the flip side, tax labels are problematic because we dislike a government charge more when we slap a tax label on it. For example, calling a carbon offset program a carbon tax in one study led far fewer people inclined to pay the charge.

FYI, the word Constitution appears nowhere in that article.