The Mental Jujitsu of Switchin' His Hittin'

by Eric Martin

The individual mandate - the requirement that every adult individual has health insurance - is certainly the most controversial aspect of the current HCR legislation that is being finalized through reconciliation.  Republican leaders are attacking this provision as a fundamental violation of individual liberty, and have urged state attorneys general to join a lawsuit challenging its Constitutionality before the Supreme Court.

But the mandate, as such, has an interesting history - that is, it was originally a Republican proposal, put forth as an alternative to the Clinton health care reform program. 

The truth is this is a Republican idea," said Linda Quick, president of the South Florida Hospital and Healthcare Association. She said she first heard the concept of the "individual mandate" in a Miami speech in the early 1990s by Sen. John McCain, a conservative Republican from Arizona, to counter the "Hillarycare" the Clintons were proposing.

McCain did not embrace the concept during his 2008 election campaign, but other leading Republicans did, including Tommy Thompson, secretary of Health and Human Services under President George W. Bush.

Seeking to deradicalize the idea during a symposium in Orlando in September 2008, Thompson said, "Just like people are required to have car insurance, they could be required to have health insurance."

Among the other Republicans who had embraced the idea was Mitt Romney, who as governor of Massachusetts crafted a huge reform by requiring almost all citizens to have coverage.

"Some of my libertarian friends balk at what looks like an individual mandate," Romney wrote in The Wall Street Journal in 2006. "But remember, someone has to pay for the health care that must, by law, be provided: Either the individual pays or the taxpayers pay. A free ride on government is not libertarian."

Romney was referring to the federal law that requires everyone to be treated in emergency rooms, regardless of their ability to pay.

Steve Benen adds:

The reversals have occasionally been hard to believe. Sen. Chuck Grassley (R) told Fox News last summer, "I believe that there is a bipartisan consensus to have individual mandates.... There isn't anything wrong with it." He later said he would oppose the Democratic proposal because individual mandates are, as he put it, "non-constitutional."

Also note, Sens. Lamar Alexander (R-Tenn.), Bob Bennett (R-Utah), Mike Crapo (R-Idaho), Lindsey Graham (R-S.C.), and Judd Gregg (R-N.H.) all are on record co-sponsoring a reform measure that included an individual mandate. And then all of them voted for a measure to declare the individual mandate unconstitutional.

All the Democratic outreach and compromise options in the world can't overcome the fundamental lack of seriousness that comes with a party that opposes and supports the same ideas at the same time.

But then, Grassley is also busy touting the fact that he "authored" certain provisions of the current health care legislation - legislation that the GOP argues was crafted by shutting out GOP input altogether (the truth being that the Democrats preemptively included several items from the GOP wishlist in an unsuccessful attempt to attain a bipartisan imprimatur).

Jonathan Chait has more on GOP flip-floppery:

If Obama's claim about his plan's moderation were correct, would would we see? We'd see that Obama had modeled his plan after other proposals that had gained the support of Republicans. The lack of Republican support in Congress would not refute the claim of moderation -- we would explain this as evidence that the GOP had moved to the right and/or embraced a partisan strategy of opposition.

And indeed, this is exactly the case. Obama's plan closely mirrors three proposals that have attracted the support of Republicans who reside within their party's mainstream: The first is the 1993 Senate Republican health plan, which is compared with Obama's plan here, with the similarity endorsed by former Republican Senator Dave Durenberger here. The second is the Bipartisan Policy Center plan, endorsed by Bob Dole, Howard baker, George Mitchell and Tom Daschle, which is compared to Obama's plan here. And the third, of course, is Mitt Romney's Massachusetts plan, which was crafted by the same economist who helped create Obama's plan, and which is rhetorically indistinguishable from Obama's. (The main difference are that Obama's plan cuts Medicare and imposes numerous other cost-saving measures -- which is to say, attempting to craft a national version of Romney's plan would result in something substantially more liberal than Obama's proposal.)

All that being said, the mandate will be a bitter pill for some to swallow - but it could be made sweeter.  If only there were a more affordable insurance alternative, one made less expensive by the elimination of profit imperative, exorbitant executive compensation, dividend payouts, advertising cost and elaborate actuary analysis - one, say, offered by the government instead.  Let's call it a "public option."

Joking aside, the public option was kept out of this bill by the usual "centrist" Democrat suspects, plus Lieberman, whose votes became essential due to the fact that the GOP was committed to opposition at all costs, especially for something as liberal as a public option.  However, BooMan suggests that there may be a way to parlay GOP opposition to the mandate into a public option, via a bit of political jujitsu:

Next up, the Republicans will go to court to challenge the mandate. They'll lose, of course, but they'll score political points like crazy because no one wants to be compelled to buy insurance from a private corporation. The answer, which should be repeated like a mantra, is, "I agree with you, so let's create a publicly-administered alternative. If you don't want to pay for CEO bonuses, cut out the middle man and buy the public option."

The more unpopular the Republicans make the mandate, the more we can re-channel that unpopularity to support for a public alternative. It's a trap that we must set.

I like it.

Comments

[Ugh]

Uh, what? The GOP's argument isn't that people are being forced to buy health insurance from private corporations and their overpaid CEOs, it's that people are being forced to buy health insurance period.

BooMan seems to think that the people who are upset that they are being forced to buy health insurance from a private corporation will be oh so happy when they're being forced to buy health insurance from the federal government??? The Tea Party people who love Congress and current POTUS?

[Eric Martin]

Ugh,

I believe the theory is that since the government option will be cheaper, it will be an attractive alternative once the bill kicks in - or before it does. That is, people may not be happy exactly, but less mad by the more affordable option.

So, it's not a means to make people ecstatic and love the Dems or the law, but it is a way to get the public option some support - and the public option is better on policy grounds.

But, ironically, the GOP is actually railing about insurance company enrichment, CEO salaries, etc. (see, ie)

[cleek]

tee hee. malkmus.

[Ugh]

That makes a little more sense to me but I still don't think I buy it.

Huh, three straight posts where I pick out something I don't like. Maybe I need more sleep. ;-)

[Bernard Yomtov]

Eric,

The link to Benen is broken or something.

[hairshirthedonist]

But, ironically, the GOP is actually railing about insurance company enrichment, CEO salaries, etc.

Populist rage is a fickle beast. The madder people get at the insurance companies, the better the relative position of the public option. That's the crux of the political calculus, AFAICT. And what's needed is to sway some number of people to some degree. (I write this assuming it's not completely redundant in light of Eric's last comment.)

[Eric Martin]

Bernard: fixed. Thanks for the heads up.

Huh, three straight posts where I pick out something I don't like. Maybe I need more sleep. ;-)

No, it's just that I'm writing on domestic issues, and thus my positions are admittedly imperfect.

Foreign policy-wise, there is never anything to fairly criticize ;)

[Fair Economist]

The 1993 plan Obamacare is similar to (although somewhat more liberal than) is one by Senator Chafee, not the Republican Senate in general. So Obamacare isn't basically 1993 Republican idea, it's basically a compromise between 1993 Republican moderates and 1993 Democratic moderates.

[hairshirthedonist]

So Obamacare isn't basically 1993 Republican idea, it's basically a compromise between 1993 Republican moderates and 1993 Democratic moderates.

AHAH! So you admit it's not a radical socialist plan! ;)

[hairshirthedonist]

Does anyone know what "AHAH!" means? "AH HA!" is what I meant.

[Eric Martin]

Fair point Fair Economist, but as HSH jokes, it still undermines the suggestion that this is some radical, socialist reordering of society/armageddon.

[russell]

The 1993 plan Obamacare is similar to (although somewhat more liberal than) is one by Senator Chafee, not the Republican Senate in general.

That leaves the comments, and legislative histories, of McCain, Thompson, Romney, Grassley, Alexander, Bennett, Crapo, Graham, Gregg, Durenberger, Dole, and Baker.

And that's just who was named in the above cited pieces. I'm sure there are others.

The Constitutional question of whether the federal government can either require you to buy an insurance product, or penalize you through the tax code if you do not, is an interesting one. The policy isn't due to kick in for a couple of years, and I'm sure the question will spend that time working its way through the courts.

But the Republicans are, by and large, full of sh*t. The Constitutional question is the just the pony they're riding, today, to blow up whatever policy has "Democrat" stamped on it.

[AmberChi]

Something mentioned before (though I don't think here) that is an important point... there needs to be a mandate to buy insurance to implement all the other reforms. If you are going to get rid of caps, rescission and pre-existing conditions, you need to make buying insurance mandatory. Why? Well without one, what is to stop someone from not paying any premiums over the years and then only get insurance when they are diagnosed with let's say cancer (which is often a $1million+ treatment)? Now times that one person by thousands and then there will be major problems. If you like the other provisions in the bill, you need the mandate. I am a huge supporter of having a gov't option and I think that we will eventually get one...but even without a public option, there needs to be a mandate.

[Walt C]

Interestingly enough the Heritage's Foundation page post their current opinion about individual mandates.http://www.askheritage.org/Answer.aspx?ID=832. Yep, there is no doubt in their minds this is completely unprecedented and a massive overreach of federal power.

Yet in the Fall 1993 issue of Policy Review ,under an article "Is the Clinton Health Care Plan Making You Sick? Here's the Alternative," the Heritage Foundation plan explicitly calls for a mandate for every adult to purchase catastrophic healthcare coverage. Yep, there is no doubt in their minds back then that this proposal embodied personal responsibility on the part of people to pay their own way. Nothing about it's constitutionality is even thought about.(Sorry this article is not online anywhere.)

This individual mandate controversy sounds like more "political theater".

[Fair Economist]

That leaves the comments, and legislative histories, of McCain, Thompson, Romney, Grassley, Alexander, Bennett, Crapo, Graham, Gregg, Durenberger, Dole, and Baker.

Mandates do have broader historical support in the right-wing, but the 2010 HCR bill has a lot more than mandates. Additionally, that's a fairly moderate list of Republicans, especially back in 1993 (e.g. McCain used to be genuinely maverick before he got wingnuttized for his second run at the Presidency).

The Constitutional question of whether the federal government can either require you to buy an insurance product, or penalize you through the tax code if you do not, is an interesting one.

No, it's not interesting at all. George Washington signed a mandate for the militia back in 1792. Draft registration is a universal mandate for men right now. Targeted taxation is even more routine.

[McKinneyTexas]

Mandates can be constitutional or not depending on the terms. If the mandate is "purchase under the plan or tough luck when you get sick", then there isn't a constitutional problem because the citizen is free to elect or not. It might be a different issue if the mandate were to be "purchase under our plan and you can't purchase anything else. When the mandate is "purchase under the plan or pay a fine", the constitution is implicated. The commerce clause does not reach every individual's every economic choice. If it did, the government could mandate which cars we buy, how large a house we build ad nauseum. Anyone who says differently is invited to set forth the constitutional reasoning by which the feds are limited to mandating only health insurance.

Moreover, it doesn't matter that this Republican or that Republican used the word "mandate" in a sentence. What matters is the substance of the mandate, on whom it is imposed and what the consequences are of disobedience.

I tried to challenge Eric on this several times and got blown off. HSH posted to an article that, well, really didn't address the issue other than to reference two cases that are not on point and then blandly assert that an individual mandate would pass constitutional muster under the commerce clause. More to the point, the authors of that article are partisans. Partisanship goes both ways and substandard constitutional analyses run the political gamut. The point here is that a constitutional question, particularly one of this magnitude (surely we have a consensus that the government ordering its citizens to purchase something or else is a big deal), is not and should not be dismissed out of hand simply because it impedes a particular faction's pet policy. Again, this should be a consensus view. Left, center or right, we all agree to be bound and limited by the same organic document.

In any case in which a policy or law is proposed, the burden lies with the policy's proponents to establish that their position falls within the enumerated powers of the Constitution. That this or that is good policy or a good idea or is necessary is insufficient grounds for upsetting the rule of law.

This is no small thing we are talking about. It is time for Hilzoy and Publius to make a guest appearance.

[Eric Martin]

Moreover, it doesn't matter that this Republican or that Republican used the word "mandate" in a sentence. What matters is the substance of the mandate, on whom it is imposed and what the consequences are of disobedience.

Are you actually saying that the Republican use of mandate is different in practice?

Can you differentiate the Mass. model of mandates enacted by Romney based on prior GOP models from the current?

How?

I tried to challenge Eric on this several times and got blown off.

Here's Matt Y:

"...what people need to see about the mandate is that it’s just a form of tax. I could say “in addition to their other income taxes, everyone needs to pay a $X annual ‘health responsibility tax.’” Then I could also adopt a legal definition of adequate health insurance, and say “everyone who has adequate health insurance gets a $X tax credit.” Wham, bam, mandate."

Much ado about nothing.

It is time for Hilzoy and Publius to make a guest appearance.

Please. Find a way to stir them from their slumber.

[hairshirthedonist]

HSH posted to an article that, well, really didn't address the issue other than to reference two cases that are not on point and then blandly assert that an individual mandate would pass constitutional muster under the commerce clause.

Well, at least I didn't just blow you off like that lame-o Eric. (It's a good thing I'm here to pick up his slack.)

[Sean Hays]

McKinney,

First, it does make a difference who is saying what, as most of this is a game that Republicans and Democrats are playing to score political points for the midterm elections. Thus, hypocrisy matters.

Second, if it is true that the fed's commerce power doesn't extend to every individuals, every economic decision, then perhaps the federal government can simply mandate that the states mandate the purchase of health insurance? Mass. already does it, and the states already mandate the purchase of auto insurance.

Finally, Fair Economists' point above about the militia order is a good one. There is precedent for the federal government mandating individual economic transactions (i.e. you must purchase a gun, and other appropriate provisions, in order to be prepared for militia service). I think, ultimately, that many of the objections to the Republican legal challenges are not just about their viability before the courts (I happen to think they aren't viable, but I could be wrong), but, rather, are analogous the final point you made, when you wrote "That this or that is good policy or a good idea or is necessary is insufficient grounds for upsetting the rule of law." The law also requires that elections have consequences, and the behavior of the opposition has reached the point where we can no longer reasonably assume they are acting in good faith, and fulfilling their role as loyal opposition, rather than attempting to nullify election results by any means necessary, which is what they appear to be doing.

[McKinneyTexas]

Are you actually saying that the Republican use of mandate is different in practice?

Eric, you're a lawyer like me. One thing that lawyers do all the time is define terms because many, many different words are susceptible to more than one meaning. I have no idea what 'the Republican use of mandate' means. My point--and I am confident I made it clearly--is that you would have to look at the substance of any proposed mandate to determine whether it passes constitutional muster.

As for calling the premium a tax, that particular exercise in honesty was not the road taken by the Democrats for the obvious reason that HCR would never have gotten off the ground if its central core was a near universal tax. But even if HCR had passed with a tax rather than a mandate, I'd have to know more about how the statutory language of the 'tax' was structured before I could say whether it has constitutional problems or not. That said, as a general rule, taxes have a better shot at passing muster than mandates.

[Eric Martin]

My point--and I am confident I made it clearly--is that you would have to look at the substance of any proposed mandate to determine whether it passes constitutional muster.

Let's look at Mass then.

[McKinneyTexas]

HSH--and I meant to thank you for that.

Sean--the Constitution gives congress the right to raise an army, thus dealing with the militia issue. As for your point about elections having consequences, yes they do. The left thinks the right is going overboard these days, the right has thought the same thing about the left in days past. No change there nor do I expect to see any kind of comity in years to come, from either side. I am simply trying to address a constitutional issue. The motives of one side or the other do not drive constitutional interpretation. In fact, many constitutional decisions favor parties and interests whose motives are anything but desirable or admirable.

BTW, is anyone else having a problem with Typepad? I get an error note every time I try to preview and edit and instead I have to give name, email, URL and then type in a code at which point my rough draft posts. I tried signing out and back in, but no luck there.

[Eric Martin]

Typepad is definitely hinkey today. Same happened to me.

[Carleton Wu]

The commerce clause does not reach every individual's every economic choice.

But this is pretty clearly settled- Congress does have the power to regulate intra-state activities with strong ties to interstate commerce. It's even settled that Congress can act based on the failure to act or to engage in commerce (ie civil rights act).
And Congress has the power to tax.
I don't see any daylight on the powers side, given those two things.

Really, the only grounds that I could possibly see would be on individual rights, not on Constitiutional limits to federal activity. Some novel, Lochner-like right to not be compelled into a contract (absent violating someone else's rights in the process, again ie civil rights act).

Another thought experiment I've seen: individuals are compelled to participate in Medicare and Social Security. The only difference between those programs and this one is that the provider is a private corporation. Do you see other differences, or do you think that's a critical factor somehow? Or do you think Medicare and SS are also constitutional?

[Carleton Wu]

s/constitutional/unconstitutional/

[McKinneyTexas]

Eric, feel free to look at Mass, but doing so is beside the point. Here's the problem: the only parts of the US Constitution that apply to the states are those that either expressly limit state action, those that reserve powers to the state (or to the feds) or those that have been selectively incorporated to limit state power. A state can require things of its citizens, i.e. regulate marriage, mandatory school attendance, that the feds cannot. Mass can, under the US Constitution, mandate health insurance on its own citizens because neither Mass nor any other state is prevented from doing so by the US Constitution. That same constitution, however, does not authorize the feds to do individual, economic mandates. That's why we call it a federal system. Constitutionally, we are a federation of semi-sovereign states. Archaic perhaps, but its still the fundamental law of the land.

[McKinneyTexas]

Carleton--a superficially fair point re: medicare and SS, not so much on the other stuff. The commerce clause does not have unlimited reach. The power to tax is not the same as the power to compel purchases. And that is what medicare and SS are: taxes. However, receiving benefits from medicare or SS is not involuntary. A citizen can return the SS check or he/she can forgo medicare. It may be an unwise decision, but it can be made. You are conflating the power to tax for a particular purpose with the power to order economic activity, i.e. a purchase of goods or services. If funding HCR were converted to a straight up tax, we wouldn't be having this discussion. I would agree there is not constitutional impediment.

[Eric Martin]

McKTex:

I admit to being a bit befuddled by this song and dance. The GOP was in favor of "federal" mandates for individuals to purchase insurance.

They have been for some time.

This is no secret.

Romney used the GOP model in Mass - albeit on a statewide basis, but the model was for federal action, authored by senators as a federal legislative proposal.

Lawyer or not, what exactly would they have meant by individual mandate in the context of health insurance reform other than...an individual mandate?

There's just no plausible alternative.

[hairshirthedonist]

However, receiving benefits from medicare or SS is not involuntary. A citizen can return the SS check or he/she can forgo medicare. It may be an unwise decision, but it can be made.

I'm not sure I get this. Couldn't I also choose to pay for my own doctor's visits rather than using my insurance?

[Jacob Davies]

The thing is, you're not compelled to buy health insurance under the bill. You're compelled to pay a tax if you don't have health insurance, and I can't see how that's different from being compelled to pay a tax if you have income. The income tax also has a million carve-outs for the specifics of individual situations.

It's true that the Democrats didn't want to describe it as a near-universal new tax, but since roughly 90% of people would start off exempt (and most of the remaining people would wind up being exempt because of the bill's subsidies and expansion of Medicaid anyway) it's not actually a "near universal" tax at all.

I think the Democrats soft-peddled the "tax" angle for obvious reasons, but nobody who was paying attention can have been unclear on what they were talking about when they said "mandate". It's not a requirement that you do X; it's a requirement that you either do X or pay an extra tax.

[Marty]

While I believe that there is a reasonable discussion here, I am not sure the Democrats couldn't fix it easily by just admitting it is middle class tax. It would also behoove Republicans to just point that out and keep pointing it out.

After all the hoopla we implemented an across the board tax that pays for universal government health insurance. We just used a bunch of different words because an across t
He board tax would have been, and might turn out to be,the real Waterloo.

[Sapient]

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"

So it seems that taxes, which don't have to be uniform throughout the United States, can be used as a mandatory alternative to a private purchase in order the provide for the general welfare. I don't even think we need the Commerce Clause to institute a mandate, do we?

[Jacob Davies]

admitting it is middle class tax

... it's not a middle class tax, because most middle-class people have health insurance and don't have to pay anything. It's a tax on that very small subset of the middle class who make enough to be ineligible for subsidies and don't have health insurance now and won't buy it when the pre-existing-condition bars and community rating come into effect. In what sense is that extremely small group synonymous with "the middle class"?

[McKinneyTexas]

Eric, please go back to my first post. You can have a mandate that says "either you buy or you aren't covered"--the citizen has a choice--buy insurance or come out of pocket when illness strikes. You can also have a mandate that says "either you buy or you pay a fine"--the citizen has no choice, and the constitution is implicated. Same word, two different meanings. That is my plausible alternative; however, I was making the point in aid of a larger point.

It doesn't matter what a Republican said or meant or any other damn thing. Or a Democrat, for that matter. Even if Republicans and Democrats agreed, for example, that offering pictures of naked men and women in magazines for sale would no longer be allowed (citing the commerce clause as their authority), that agreement would not trump the constitution. If Republicans said the president is free to incarcerate any enemy of the state without trial and indefinitely, and if Democrats agreed or if they didn't (I can't figure out where the current administration is on this point), there would still be constitutional impediments.

Right now, what we have is an individual mandate, not a tax, and "regulating commerce among the several states" is not synonymous with "compelling each citizen in each state to purchase a service or a product". Your post raises a question of constitutional law, not political consensus, not "who said what then and now says something different."

The constitution is non-partisan. The left likes some parts, the right likes others. Who likes what is beside the point. We all live under the whole document.

P.S. Typepad appears to be fixed.

[McKinneyTexas]

Jacob--anytime a citizen is compelled to perform an act or pay a "tax", that mechanism is not a tax, it is a penalty. Courts look past words and form to substance. Your income tax analogy is off point because the constitution had to be amended to allow for an income tax.

[Marty]

JD, just to be clear, the only way to ensure compliance is to treat it the other way. "Everyone owes the tax but if you buy insurance you get a credit equal to the tax". Otherwise enforcement is reasonably impossible.

[Eric Martin]

You can have a mandate that says "either you buy or you aren't covered"

No you can't. Because that's no mandate at all. That's the absence of a mandate: it is a non-mandate. Either you do this, or you don't is not a mandate - to state a tautology. A mandate is only a mandate if you are required to do so or suffer a consequence.

No one has every used the word "mandate" in the way you describe in this context.

No, you're right that this doesn't count as a Constitutional argument, but it most certainly DOES count as an argument about the extreme hypocrisy of the GOP. And your determination to twist into a pretzel to avoid the implications is certainly telling.

As for the constitutional arguments themselves, I'm still digesting them from both sides, and am forming an opinion based on that argumentation.

[cleek]

i scoffed at them, at the time, but there were a bunch of people here claiming that the then-current HCR proposals in Congress were all secretly trying to set us up for universal coverage. i still don't think that's the case, but i am feeling like this individual mandate thing is a springboard to a public option. it's going to be very unpopular (though i don't dispute its necessity) - that creates a nice opening for Future Congress to propose that the govt simply ensure people who can't afford the premiums - cut out the middle man, the way they just did with student loans.

maybe not.

but i hope so.

[Jacob Davies]

Sure. But my question is, and not just to be argumentative, but what is the substantive difference between a penalty for not having health insurance, and the existing penalty for not owning a home and paying mortgage interest, or the penalty for not having dependents, or the penalty for not having medical expenses, or the penalty for not having employer-provided health insurance, or any number of elements in the tax code that give preferential treatment to one group based on their situation, commercial behavior, or events in their life?

I paid a "penalty" throughout my 20s for being single with no dependents - my tax bill is a hell of a lot lower now that I'm married with a baby. Was I "compelled" to get married and have a baby by those provisions?

[Eric Martin]

I paid a "penalty" throughout my 20s for being single with no dependents - my tax bill is a hell of a lot lower now that I'm married with a baby. Was I "compelled" to get married and have a baby by those provisions?

I know.

I got two deductions this year.

Joy.

PS: Saw a t-shirt for a newborn that said something to the effect of "Newest Tax Deduction."

[Carleton Wu]

The commerce clause does not have unlimited reach.

Im not arguing that. Im arguing that it's fairly settled that Congress can 1)regulate non-participation in economic activity as easily as participation and 2)regulate activity with a substantial impact on interstate commerce even if that activity itself is intrastate.
Seems like you ought to take issue with one of those points, rather than pretending that Ive said the Commerce Clause is unlimited.

The power to tax is not the same as the power to compel purchases.

And purchases aren't being compelled here. A tax is being levied. I would argue that taxes can be used in an unconstitutional manner (eg a 1,000,000% tax on firearms ammunition), but I think the burden of the case would be on those arguing that it is infringing on a right.

However, receiving benefits from medicare or SS is not involuntary. A citizen can return the SS check or he/she can forgo medicare. It may be an unwise decision, but it can be made.

A person could refuse a private insurer's check as well. Im not sure what point you're driving at here.
Under this law, a person can not purchasing healthcare and pay a tax. Then, they wouldn't be receiving anything from a private corporation either.

You are conflating the power to tax for a particular purpose with the power to order economic activity, i.e. a purchase of goods or services.

I understand why a constitutional argument against the bill requires Congress to be compelling an economic action. But they aren't.

You can also have a mandate that says "either you buy or you pay a fine"--the citizen has no choice, and the constitution is implicated.

I hate to say it this way, but you are not parsing the plain English here. Citizen has to do A or B. That is a choice. Saying that they have no choice is not correct.

[Eric Martin]

BTW, some more past conservative calls for the individual mandate - and it's pretty clear that they mean mandate to buy, or pay a fine.

From the heritage foundation

[McKinneyTexas]

but it most certainly DOES count as an argument about the extreme hypocrisy of the GOP.

Among the problems with hypocrisy are (1) it's usually in the eye of the beholder (Question: Who said, in the course of running for president, that he wouldn't impose a mandate?) and (2) it's usually a two way street (See earlier question).

You can take me at my word or not: I don't care what Republican or what Democrat said what about mandates. Further, your definition of what constitutes a mandate is just that, your definition. It may be the superior or more widely accepted meaning of the term, but it is not exclusive. Further, there being another famous Democrat who subscribed to multiple meanings of the word is, and from 30 years experience trying to nail down hostile expert witnesses, I can assure you that many people use words that may have a particular objective connotation yet the speaker has a different meaning in mind. My only point re: Republicans is that I don't know what the specifics of their intent was in their word choice. If their intent mirrors the current intent, then the speakers are both hypocrites and run afoul of the constitution. However, with Obama having changed so many positions since coming into office, were I a fan of his, I think I'd forgo damning others who do the same.

And purchases aren't being compelled here. A tax is being levied. I think I see the role of critical legal studies here. Sorry Carlton, but this is Orwellian. The mandate is simple: buy insurance or pay a fine. That is not a tax. It is a penalty. Words have meaning, as Eric has been trying to say to me all afternoon.

[Carleton Wu]

And purchases aren't being compelled here. A tax is being levied. I think I see the role of critical legal studies here. Sorry Carlton, but this is Orwellian. The mandate is simple: buy insurance or pay a fine. That is not a tax.

Buy a house with a mortgage, or pay more tax. Buy education, or pay more tax. Have kids, or pay more tax.
I don't know why you believe that the definition of "tax" includes not attempting to encourage or discourage behavior. I don't find any support for that position in the Constitution.

[Jacob Davies]

A "fine" carries connotations of lawbreaking, speaking of words having meaning. From what I have read there is no such connotation attached to the penalty tax. As for "not being a tax", if it is invoked by having to fill out a box on my tax form when paying my taxes, paid by enclosing a check for the extra tax, and enforced by the threat of tax-evasion penalties, in what way is it not a tax?

My tax form has a lot of questions about what I did or purchased in the last year with consequences for how much my tax bill will be. How is this new question asking whether I had health insurance different from the question about whether I paid mortgage interest? Is the extra tax I pay because we don't own our house and pay mortgage interest a "fine"? Am I being "compelled" to take out a mortgage by this extra payment?

These are not facetious questions. I am, in fact, being pressured by the tax code to buy a house, just like I was pressured by the tax code to get married and have a baby. So what's different about being pressured to get health insurance?

[Ugh]

Question for the Kitty Borg: if I have no income and also don't buy health insurance, what are the consequences to me under HCR?

Many thanks

PS: I'd look but it's time for Ugh Jr.'S bath

[russell]

A state can require things of its citizens, i.e. regulate marriage, mandatory school attendance, that the feds cannot.

That's my understanding as well, and I agree that the Constitutional question in this case is not as cut and dried as folks are presenting it. In my very humble layman's opinion.

There is also this, from the 14th Amendment:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

Is there a clear, settled line to tell us when a state can compel its citizens in ways the feds cannot, and when it cannot do so?

Does this apply in the case also?

[Carleton Wu]

Ugh,
Well, if you've no income, you're already eligible for Medicaid. So I don't think you're touched at all.
But there are people below the poverty line who aren't Medicaid-eligible. Credits should make insurance available to them, but some many not understand the situation & end up paying the tax.

[Eric Martin]

Is there a clear, settled line to tell us when a state can compel its citizens in ways the feds cannot, and when it cannot do so?

Does this apply in the case also?

This is a very good question. McTex?

[Sapient]

"I agree that the Constitutional question in this case is not as cut and dried as folks are presenting it. In my very humble layman's opinion."

No Constitutional question is cut and dried unless the exact same facts have been decided before. And even then, with a court that's willing to ignore precedent, not cut and dried. However, russell, your comment implies that you buy the argument that there's a constitutional issue with giving citizens a choice between doing something that requires a private investment, or paying a tax. Indeed, Jacob Davies has explained how this is done all the time. If someone can make a meaningful distinction between the examples he describes, and the choice offered to people deciding whether or not to buy health insurance, I'd like to know the reasoning.

That said, with this Supreme Court's majority actively working for the Republican Party, I wouldn't be surprised if they manufacture a distinction.

[Carleton Wu]

Is there a clear, settled line to tell us when a state can compel its citizens in ways the feds cannot, and when it cannot do so?

I think it's a question of what the Constitution enumerates as Federal powers. States have no more power to violate individual rights than the Federal government. At least, by most interpretations of the Constitution (some argue that not all Federal rights extend via the 14th to protect individuals from the states).

[Sebastian H]

For whatever it is worth, Obama doesn't think it is a tax increase cite

STEPHANOPOULOS: ...Under this mandate, the government is forcing people to spend money, fining you if you don’t. How is that not a tax?

OBAMA: Well, hold on a second, George. Here — here’s what’s happening. You and I are both paying $900, on average — our families — in higher premiums because of uncompensated care. Now what I’ve said is that if you can’t afford health insurance, you certainly shouldn’t be punished for that. That’s just piling on. If, on the other hand, we’re giving tax credits, we’ve set up an exchange, you are now part of a big pool, we’ve driven down the costs, we’ve done everything we can and you actually can afford health insurance, but you’ve just decided, you know what, I want to take my chances. And then you get hit by a bus and you and I have to pay for the emergency room care, that’s...

STEPHANOPOULOS: That may be, but it’s still a tax increase.

OBAMA: No. That’s not true, George. The — for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase. What it’s saying is, is that we’re not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase....

Does that have any weight with you Jacob or Carleton?

[Sebastian H]

"That said, with this Supreme Court's majority actively working for the Republican Party, I wouldn't be surprised if they manufacture a distinction."

Oh good heavens, I'll bet you $500 that they do no such thing? How unsurprised would you really be?

[McKinneyTexas]

The constitution expressly allows for taxing income. The apparent benefits that favor marriage, taking out a mortgage, etc. are not mandates in that no one is forced to marry or take out a mortgage. You simply don't get the benefit of the deduction. Under the HCR mandate, I cannot opt out and simply not have the benefit of opting in. Instead, I pay a penalty. If HCR said, "opt in, get a tax credit, opt out and not be covered", that would pass constitutional muster.

A state can require any number of things of its citizens that the feds cannot--it can limit who marries, at what age, mandate school attendance, tax property, allow or disallow claims in tort, define contractual capacity, define allowable contracts, regulate intestate and testate succession, etc. A state can mandate the purchase of insurance-probably-in a non-discriminatory manner.

However, the line is neither clear nor settled.

The 14th amendment does not reach intra-state activity unless the state action violates the equal protection or due process clauses (or other limits on state or federal power outside the 14th amendment).

[hairshirthedonist]

If HCR said, "opt in, get a tax credit, opt out and not be covered", that would pass constitutional muster.

You can opt out and not be covered, but you will be subject to an additional tax. It's a mirror image of getting a credit for opting in. It seems to me that you're saying it's the side of the ledger the difference shows up on that makes the mandate unconstitutional. I'm sure at least one of the framers was an accountant, so maybe you're right.

[hairshirthedonist]

Does that have any weight with you Jacob or Carleton?

Not Jacob or Carleton, but I'd say Obama is just being a dishonest politician trying to spin this away from the "T" word. And you don't know what Obama thinks. You only know what he said.

[Eric Martin]

I'd say Obama is just being a dishonest politician trying to spin this away from the "T" word. And you don't know what Obama thinks. You only know what he said.

Agreed.

The constitution expressly allows for taxing income. The apparent benefits that favor marriage, taking out a mortgage, etc. are not mandates in that no one is forced to marry or take out a mortgage. You simply don't get the benefit of the deduction. Under the HCR mandate, I cannot opt out and simply not have the benefit of opting in. Instead, I pay a penalty. If HCR said, "opt in, get a tax credit, opt out and not be covered", that would pass constitutional muster.

So, if I understand you correctly, if Obama said that everyone is henceforth assessed a $2,000 tax. You can get a credit if you have health insurance. Also, the there are offsets for lower income indivuduals - that would be perfectly Constitutional.

But doing it the other way (only assessing the tax penalty in certain circumstances, rather than tax then credit) - which leads to the exact same result - is not Constitutional?

[russell]

However, russell, your comment implies that you buy the argument that there's a constitutional issue with giving citizens a choice between doing something that requires a private investment, or paying a tax. Indeed, Jacob Davies has explained how this is done all the time.

No, my opinion here is not that strong in either direction.

Jacob's argument seems very persuasive to me, especially his 6:36.

I also think McKinney draws a useful distinction between opt-out and opt-in might actually be significant. Niggling as that might sound. A lot of law turns on niggling points of detail, it seems to me.

So, I just don't know. Basically, I don't have the legal chops to have a really strong opinion at this point, I'm looking forward to seeing the arguments pro and con.

I'm just not sure that it's quite as open and shut as it might appear to be. In either direction.

One thing I am aware of which folks haven't really brought here (I think) is that the mandate was something of a quid pro quo with the industry. They agreed to not dig in their heels on recission and pre-existing conditions, in return they got the mandate, which will be an incentive for healthy and/or younger people to buy insurance.

Not part of the Constitutional question, but an interesting dimension to the overall issue, maybe.

Carleton and McKinney, thanks for your comments on the 14th.

[Carleton Wu]

The apparent benefits that favor marriage, taking out a mortgage, etc. are not mandates in that no one is forced to marry or take out a mortgage.

And no one is forced to get insurance. Any more than they are forced to marry.
Ergo, by your definition, not a mandate. Thanks.

Does that have any weight with you Jacob or Carleton?

I don't think that the President defines legislation- he signs legislation.

[Michael Cain]

Im arguing that it's fairly settled that Congress can 1)regulate non-participation in economic activity as easily as participation and 2)regulate activity with a substantial impact on interstate commerce even if that activity itself is intrastate.

My one concern is that Congress has declared that failure to purchase health insurance has an impact on interstate commerce. In reality, failure to pay one's health care bills is what has the impact. Bill Gates's decision, if he made it, to not purchase health insurance has no impact on whether he will be able to pay his health care bills. In many states that require auto insurance, there is an opt-out allowed if you can post a bond or demonstrate that you could pay the minimum liability amount. Should there be similar opt-out language in this case?

[Phil]

A state can require any number of things of its citizens that the feds cannot--it can limit who marries

I am pretty sure that the feds have done exactly that, via the Defense of Marriage Act. A gay couple married legally in a state that recognizes same-sex marriages is not considered married by the Federal government.

[Jacob Davies]

I read Obama as trying to get across that this is not a tax increase unless you are currently uninsured and financially able to buy health insurance (by the standards of "able" defined in the law).

But what matters is what the effect of the law is, not what someone says about it, at least when the law itself is sufficiently clear. Eric's 10:13 says what I would have: how can two laws with different wording but the exact same effect be, in one case, constitutional, and in the other case, unconstitutional?

I mean, Everything I Know About Law I Learned Watching Law & Order (okay, and recreational reading of interesting rulings), but I thought judges didn't take too kindly to arguments based on the idea that differences in wording with the same effect should cause different outcomes? For instance, there is no way to write a legal contract selling yourself into slavery, no matter how you phrase it, and no matter how many times you say that isn't what you intend to do. If the effect is the same, the legal standing is the same.

In this case the effect of the law is plainly that everyone is liable to pay a certain tax on their income unless they fall into a particular class. Just like everyone is liable to pay a certain amount of tax unless they have mortgage interest expenses. In this case the class is broad enough that almost everyone falls into it and will be exempt, but so what? If 95% of people owned houses, would the mortgage interest deduction suddenly fail to pass muster?

It's not that I'm not sympathetic to the argument. I don't particularly like the numerous ways in which the tax code engages in social engineering. What I object to is the idea that this is any different from all of those.

(If I had my way everyone would pay the same progressive tax rates and we'd rebate out current deductions as a separate budget line item, at which point the enormous burden-shifting of the mortgage interest deduction and the employer health insurance exemption would become clear and renters and the self-employed would throw a fit.)

[JanieM]

(If I had my way everyone would pay the same progressive tax rates and we'd rebate out current deductions as a separate budget line item, at which point the enormous burden-shifting of the mortgage interest deduction and the employer health insurance exemption would become clear and renters and the self-employed would throw a fit.)

Amen to that.

[jonnybutter]

Because that's no mandate at all. That's the absence of a mandate: it is a non-mandate.

Why do I hear those lines in the voice of John Cleese?

[Carleton Wu]

I have to admit, Im very disappointed to see McKinney abandon this discussion. Particularly after claiming that he wanted it, but couldn't get anyone on the left to engage with him.

The substance of his argument appears to be pretending that the bill does not offer a choice, that citizens are compelled to purchase healthcare:
-a superficially fair point re: medicare and SS... However, receiving benefits from medicare or SS is not involuntary. A citizen can return the SS check or he/she can forgo medicare.
-The apparent benefits that favor marriage, taking out a mortgage, etc. are not mandates in that no one is forced to marry or take out a mortgage.
-...the citizen has no choice, and the constitution is implicated.

All of this "the citizen has no choice", "no one is forced to marry or take out a mortgage", "receiving benefits from medicare or SS is not involuntary"- all of these are either misstatements of fact, or attempts to draw contrasts where none exist between the "compulsion" of the health care bill and the "compulsion" of the mortgage deduction, or the "compulsion" to accept aid from private insurers where no such "compulsion" exists in Medicare.

[Jesurgislac]

I'm tempted to quote Monty Python, and McKinney scans well as a substitute for Sir Robin. But maybe I should just provide what conservatives against health care reform never can: a cite.

[Brandon R]

I just read through this discussion, and I just want to thank everybody here for having exactly that: a discussion. A civil and engaging debate that hasn't devovled into a left v. right screeching match.

So, on behalf of moderates out there whose heads are ready to explode from all the insanity, thank you all for relieving some of the inter-cranial pressure.

[Carleton Wu]

I recognize that it's argument from authority, but:
The University of Washington billed it as a debate among distinguished law faculty over whether the new federal health-care law is constitutional....
Moderator Hugh Spitzer noted the lack of a vigorous dissenting voice.
"I will say that we tried very hard to get a professor who could come and who thinks this is flat-out unconstitutional," he said. "But there are relatively few of them, and they are in great demand."
Spitzer, an expert in state constitutional law and a UW affiliate professor, said afterward that organizers even considered setting up some kind of video conference to provide the counter perspective. But in the end, he said, the lack of professors taking that position spoke to the merits of the arguments.
cite