The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today during oral argument in California v. Texas, former Solicitor General Don Verrilli used a phrase that I had never heard before: "moral suasion." I thought I misheard him, but then he repeated it three more times.
First, you'd have to accept that the 2017 Congress said we're going to eliminate any financial pressure to stay in the market, but the moral suasion is still so important that the entire law has to fall. And I just don't think that's a plausible account of what happened in 2017. . . .
Third, the --the contemporaneous history is quite clear. The President, the congressional leadership, the bill sponsors, the committee chairmen, they all were shouting from the rooftops that they were repealing the mandate and giving citizens complete flexibility about whether to purchase insurance. That is not what you would be saying to the world if you thought that moral suasion was essential to keep the system going.
And, finally, even if you thought that Congress really did have an interest in continuing moral suasion, that doesn't mean that they would have preferred to bring the whole ACA crashing down if 5000A were declared unconstitutional.
What does "moral suasion" mean? The Oxford reference book offers this definition:
"A regulatory body's use of argument and persuasion, rather than coercion or legislation, to influence the activities of those within its purview. The term is often applied to the efforts of the Federal Reserve Board (see Federal Reserve System) to persuade its members to comply with its policies."
This phrase does not appear in the House's brief. And I only found a single reference to the phrase "moral suasion" in the context of the ACA: a 2013 NBER Working Paper, titled "THE ARTICULATION EFFECT OF GOVERNMENT POLICY: HEALTH INSURANCE MANDATES VERSUS TAXES."
The mandate articulation might affect behavior through moral suasion (a perceived individual obligation to comply with the law), but might also affect behavior through social channels.
There you go. "Moral suasion."