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September 29, 2010

Comments

I think the Constitutional principle involved is the difference in the jurisprudence of privileges and the jurisprudence of rights. I think that's the point of the "driving a car is a privilege comments" above.

The answer, Eric, is simple. In one case most states have decided that if you want to have the right to drive a potentially dangerous weapon, then you should have at least the insurance to cover the other guy, or don't drive. You have a choice.

The Federal government has decided that, if you are born and of age, you have to buy health insurance, or kill yourself to avoid it. That is your only other option.

These two things are not the same. I know lots of people who don't drive, live in cities, work close to home, heck it is really not uncommon to make that choice.

In many states the only insurance you are required to buy is liability insurance, in case you damage someone or something that isn't you or your car.

Suppose we design health insurance that covers only communicable diseases; would mandating that be acceptable?

"Otherwise, it's ok for states to require you, but not the federal govt.?

I'm asking out of curiosity.

I want to understand the grave Constitutional principle that has been undermined here.

Is that it? "

The states could definitely require it but not the federal government. The Constitutional principles being undermined are the commerce clause and federalism. Our nation is designed a particular way, and just because some result or other seems desirable at the moment doesn't make it Constitutional. Since I've been sucked back into it again (by my own vice I'll admit), I'd say that the similarity between Obama's Health Care Reform and Obama's Assassination Policy both stem from the same vice--willingness to ignore underlying Constitutional processes in order to do what you feel is right and a further willingness to bend the Constitutional order without amendment in order to get your way.

[And I'm certainly not suggesting that this is a vice held exclusively by Obama or by Democrats. Bush and Republicans were frighteningly happy to do it to. But it is indeed a common thread between the two.] There are numerous ways that Obama could have had reform without running afoul of the Constitution--the most obvious one, which I supported since before he was elected, was making Medicare available at cost to anyone uninsured. The fact that a problem exists, that it should be addressed, that it could be addressed in a Constitutional fashion, and that a president addressed it does not mean that the method he used to address it is actually Constitutional.

A Constitution puts limits on power. That is what it does. This current president has chosen to try to evade those limits in the pursuit of assassination of citizens and mandating individual purchases. I'm sure he would couch it as "health care" and "security". The fact that health care and security are both excellent goals, doesn't mean that Obama has always acted Constitutionally in the furtherance of those goals. And part of having a Constitution is respecting that sometimes it may keep you from doing all the good you think you could do without it.

I'm just going to point out that not everyone agrees with you, Sebastian, on how to interpret the Constitution, and this is something that's been argued about for years, in words and in courts.

These cases hinge on things like the vague wording of the Constitution, where I (and others) think the best guide is the expressed purpose of the Constitution, at the beginning of the document, "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." That's a fairly clearly expressed purpose, and should therefore inform the spirit of interpretation. Assassination MAY be claimed to "provide for the common defense, but fails under Establishing Justice and Blessings of Liberty portions, IMHO. Health Care Reform, on the other hand, is clearly under General Welfare, and I don't think the arguments that it infringes on the Blessings of Liberty or Establishing Justice are very persuasive.

I'm not sure how Medicare for all is any more Constitutional in your interpretation than what actually passed.

The Federal government has decided that, if you are born and of age, you have to buy health insurance, or kill yourself to avoid it.

Why would anyone not want to have health insurance, Marty? I mean, that is the point, not 'the principle of the thing'. There is nothing analogous to the care of your health.

And, what's with the 'kill yourself' comment? Someone correct me if I'm wrong, but I believe the penalty for not buying some kind of health insurance is very small - much less than the cost of car insurance, less by far than the penalties for driving without insurance, and of course hugely less than health insurance itself. Don't want yourself or your kids to have health insurance? OK, pay a fine (for being a fool, IMO). You don't have to kill yourself. You may kill yourself, but I wouldn't advise it.

@Brett:

"Congressional laws are not possessed of the same legal stature as the Constitution. They may be the law of the land, but they're not perforce the supreme law of the land. "

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;"

I find that, unless you're quite familiar with the actual text of what you're quoting and/or replying to, it's a good idea to re-read these things before you hit "submit".

if you are born and of age, you have to buy health insurance, or kill yourself to avoid it.

I thought we were talking about a tax penalty, not seppuku.

Sebastian,

First of all, wrt to the post, a big "Yes, you are absolutely right."

Second, wrt HCR, I don't think so. It is really hard for me to see the difference between the government offering tax benefits - including credits - for activity X, and imposing penalties for failure to do Y.

The first is a commonplace of the tax code. The second, which is logically equivalent to the first, is now supposed to be unconstitutional?

'In the case of the insurance penalty (I have no problem calling it that), it's necessary for the prohibitions against exlusions for pre-existing conditions and rescission to work without ruining private insurance. How is it "bad" from a practical standpoint, leaving aside for the moment pure principle on the constitutionality of it?'

This illustrates the great flaw in liberal thought when Constitutional questions are at issue. Practical standpoint is much like 'do what works' and don't worry about process. It seems the only time liberals jump on process and whether or not it is constitutional is civil rights and criminal actions.

You are asking that the practicality of the mandate be considered when those who are concerned with constitutional issues can't even get to that point, because it's irrelevant.

"I'm just going to point out that not everyone agrees with you, Sebastian, on how to interpret the Constitution, and this is something that's been argued about for years, in words and in courts."

And certain lawyers, very smart people from Bush's administrative staff and Obama's administrative staff, are willing to argue that torture and administrative assassination without due process are both ok.

But at some point you're just wrong. Interstate commerce really doesn't mean all commerce. It just doesn't. Secret administrative assassinations really aren't functionally equivalent to the constitutional protections of a court trial and really aren't due process.

They just aren't. And if someone's Constitutional jurisprudence leads them to believe that they are, it is the jurisprudence that is at fault, not the Constitution. And just because a Obama might find it desirable to be able to assassinate citizens with no possible review doesn't make it Constitutional. Similarly just because the Congress might find it desirable to be able to regulate all commerce, or heck all of everything, doesn't make it Constitutional. If the Constitution only limited things that governments never wanted to do anyway, we wouldn't really need the Constitution.

Who said it was irrelevant? Leaving something aside for the moment doesn't make it irrelevant. I was asking about the social engineering aspect being "bad," which is a separate question from constitutionality.

I said it's irrelevant, because it's unconstitutional. And I'm not going to set that aside to consider whether or not it is effective in accomplishing the stated goal.

' It is really hard for me to see the difference between the government offering tax benefits - including credits - for activity X, and imposing penalties for failure to do Y.

The first is a commonplace of the tax code. The second, which is logically equivalent to the first, is now supposed to be unconstitutional? '

Have we ever done the second before? I'm not a logician, but I'm not convinced that these two are logically equivalent. Maybe practically equivalent. Maybe the first is unconstitutional, just never challenged.


GOB,

Have we ever done the second before? I'm not a logician, but I'm not convinced that these two are logically equivalent.

I don't know if we have or haven't. But how are they not equivalent? You figure your taxes, mostly. Then you come to a line that says, "if you are in category Z, subtract $500 from your taxes." OK so far?

What difference can it make, from a logical or Constitutional point of view, whether category Z is "someone who bought a house" or "someone who did R&D" or "someone who had health insurance?"

I'd say that the similarity between Obama's Health Care Reform and Obama's Assassination Policy both stem from the same vice--willingness to ignore underlying Constitutional processes in order to do what you feel is right and a further willingness to bend the Constitutional order without amendment in order to get your way.

Gosh. It's like we have no legislative or judiciary branches any more.

HCR had to get through both houses of Congress, and it will apparently face a judicial challenge as well. The administration's argument is that Assassination at Will requires no examination or approval from either of those branches. Are those really the same thing?

"And certain lawyers, very smart people from Bush's administrative staff and Obama's administrative staff, are willing to argue that torture and administrative assassination without due process are both ok."

And I listed why assassinations, abduction, and torture were different from health care reform. You did nothing to address that, and merely asserted, again, that health care reform is unconstitutional and somehow equivalent to assassination. Nor did you address my question about why Medicare buy-in is fundamentally Constitutionally different than what we got.

'What difference can it make, from a logical or Constitutional point of view, whether category Z is "someone who bought a house" or "someone who did R&D" or "someone who had health insurance?"'

These cannot be logically equivalent. I have a choice to buy the house or not without negative consequence, not with the health insurance. Am I losing my mind?

"These cannot be logically equivalent."

They are.

"I have a choice to buy the house or not without negative consequence"

The negative consequence is that when you rent you cannot deduct the interest cost that the landlord is imposing on you (with the full force of the law) AND deducting from their taxes.

".... not with the health insurance."

It's the same. If you chose to go uninsured you pay a penalty. Similarly, if you chose to rent, you effectively pay a penalty by not choosing to enter the subsidized class.

"Am I losing my mind?"

Post your return address. I'd be happy to mail it back.

envy,

Are there laws which are not pursuant to the Constitution other than those that are unconstitutional? I would have thought not.

Also, the ordering suggests that the Constitution trumps the law, which trumps treaties (and indeed, this is the case in practice, with Congress able to modify and nullify treaties even if the treaties explicitly lack a clause allowing them to do so).

However, on further consideration, the laws of war do not tolerate a war of aggression merely because it has been authorized by the government of the aggressor state, so the AUMF against Iraq and the treaty obligations are not in direct conflict. If the AUMF had authorized an aggressive war explicitly not withstanding existing laws and treaty obligations, then I could see that there would be a conflict making it basically legally impossible to try and convict Bush in the US for starting a war of aggression. As it stands, I'm not so sure.

I think there is also an argument that Bush knew that he was not acting in a manner necessary to protect the US national security from the (non-existant) threat of Iraq, so the war was not actually authorized, but I think that would be hard to win in court.

Easier just to extradite him and his administration and much of the 2002 senate to Spain to stand trail somewhere where the AUMF against Iraw is merely evidence of their guilt rather than a defense.

We segued from assassinations to HCR? That's kind of funny, actually.

I can't say much about the assassination policy. It's one of a piece with the other outrages the Obama Administration has committed against civil liberties, and is so utterly not what I expected from him (and believe me, my expectations weren't high to start with) that I sometimes wonder if a pod person took him over. Unlike Rumsfeld and Yoo, Obama was a godd*mn Constitutional scholar, and professor, and I just cannot make his turnaround make sense.

But HCR? We're still fighting over that? Good gawd.

Here are the principles HCR reform proponents were stuck having to deal with:

1. Healthcare costs were projected to rise 34% in the next decade without reform.
2. The number of uninsured was projected to rise to 70 million by 2020 without reform. Individual expenditures on healthcare were projected to comprise 25% of GDP by 2020.

Does anyone here dispute those numbers?

Does anyone here think doing nothing would make matters better?

2. American policy is constrained by corporate lobbyists. Nothing can be done that adversely affects their revenues and profits.

Does anyone here dispute that? Does anyone here think corporate interests are insufficiently represented in Congress, or that they don't have enough power to shape policy?

3. The only healthcare reform that would have been REAL healthcare reform would have been single payer. Single payer wasn't even discussed: Obama gave that away practically before the conversation started. One may speculate as to his reasons, but the fact is single payer was never going to happen.

Anyone here want to argue otherwise?

4. The next best thing would have been a public option. But there were never the votes for a public option. Not even for the horrible, useless, worse-than-none public option that was eventually floated as a model. There just weren't the votes to stop a filibuster and get a public option onto the floor for a general vote, and possibly not even enough votes to pass it if, by a miracle, a filibuster failed.

5. McCain's idea of a $5000 tax credit is an insult to anyone with the intelligence of a bowl of soup. $5000 barely gets you a personal policy worth having (i.e., high deductible, low yearly benefit caps). For a family, it's a complete non-starter. For families, the tax credit would have to be something like $15,000 or more. Also, a tax credit is also only as good as the amount of tax one pays; and the people who most need help buying insurance aren't the ones who'll owe enough in taxes to use the credit.

In short, families whose incomes are under $50K wouldn't be able to afford the out of pocket expense of health insurance, and tax credits would be of exactly zero use to them.

Does anyone dispute that?

Given these facts and constraints, the HCR we got was about all we were going to get. "Doing nothing" was simply not a sustainable alternative.

Waving one's hands and saying "the market will take care of it" is plain daft. The healthcare crisis has been building since the early 90s, and where has "the market" been? Were healthcare providers and insurance companies elbowing each other out of the way to offer low-income, high-risk people with insurance policies? I must've missed it. Please name the ones who were.

CaseyL, Not disputing that there is a problem doesn't ratify the Constitutionality of all possible solutions. I'm sure our crime problem could be improved by adopting the legal code of Singapore, but there would be some problems with it. And there were plenty of options that didn't force people to buy 3rd party products. I even suggested one--buy-in for Medicare.

Nate, I have no idea why you think offering buy-in for Medicare might be unconstitutional so I can't answer your question.

@Nate: I'm not sure there's much practical difference between being able to abduct and torture someone and hold them however long you want without any evidence or due processes, versus just outright killing them.

You might want to check with Nelson Mandela about that...

(Granted that both options are really bad for those on the receiving end. The existence of presidential term limits suggest that there's at least a reasonable chance that "as long as they want" may end within the prisoner's lifetime with the election of a more reasonable president. I am less confident of this in 2010 than I was in 2008, however).

" Unlike Rumsfeld and Yoo, Obama was a godd*mn Constitutional scholar, and professor, and I just cannot make his turnaround make sense."

It would help if you realized that, because practice has diverged so far from what the reasonably understood text of the Constitution authorizes, that the chief job of "Constitutional scholars" is rationalizing that the Constitution means what they find convenient.

IOW, Obama is a professional sophist, and that he'd "interpret" the Constitution to mean nothing that would stand in the way of his least whim was perfectly predictable.

We segued from assassinations to HCR? That's kind of funny, actually.

Yeah, in a kind of Pagliacci way.

Why does the HCR bill include the tax penalty for folks who don't buy coverage?

Because the health insurance companies wouldn't give up recission or the ability to deny coverage based on medical history without getting mandated universal coverage in return.

The idea of requiring people, by law, to buy something from a third party does have a bad constitutional smell, so we have the tax code carrot and stick instead.

Does it kind of suck? Yeah, it kind of does.

But the saner, less sucky proposals - single payer, public option, and yes Seb, even Medicare buy-in - were absolute non-starters, because the OMG SOCIALISM sacred tree of liberty free market zombie flying monkeys would not stand for them, and there were enough of them to bring the whole freaking thing to a halt.

*As is so often the case* in this country, government does not expand its scope and function because of some great institutional will to power. It does so because the wheels are coming off, and nobody else is stepping up to address the problem.

That, my friends, is the history of the expansion of federal power in the US.

Domestic, anyway.

And GOB, yes, you have the choice of buying a house or not, but unless you sleep on the beach every night you have to procure shelter for yourself in one form or another.

Some forms of "procuring shelter" get better tax treatment than others.

Buy a house, get a tax break. Rent, or for that matter live in a tent, no break.

Buy insurance, no penalty. Don't buy insurance, penalty.

I think it sucks, too. But in addition to all of the usual reasons folks think it sucks, I think it sucks because IMO it's stupid to use public policy to drive people to give their money to private insurance companies, who have demonstrated their complete willingness to literally kick people to the curb and let them die rather than take a loss on that person's coverage.

Why the hell we owe them any consideration is beyond me. But there you have it. They're people, too, these days.

And there, my friends, is some truly heinous mincing of Constitutional words.

If you think you're pissed, you have no idea how pissed other folks, frex me, are about this crap.

Buy insurance, no penalty. Don't buy insurance, penalty.

I think it sucks, too.

BTW, notwithstanding my earlier comment, I basically agree with Russell. I don't think it sucks SO badly that it merits either suicide or worries about a constitutional crisis, but it's certainly not great. But the real-world alternative was: do nothing. I'm fed up with the GOP (and all too many Dems) on this issue. No matter what's proposed to do about HC, the answer is always 'no'. Conservatives and libertarians claiming (now) that they might have supported a more comprehensive approach (Medicare for all) have as much credibility as does Rivkin above: none. At some point, you have to be in favor of something workable, and not 'for the sake of argument', which is pointless.

The conservative movement is between a vacuum and an airless place: it refuses to take responsibility for anything, but craves and seeks political power the way a drug addict craves and procures drugs. It's bad for everyone.

Buy insurance, no penalty. Don't buy insurance, penalty.

Actually, it would be more accurate to say:
- buy insurance, pay for it
- don't buy insurance, pay a penalty.

The penalty is smaller than the cost of the insurance. But you still have to pay for any medical care, so the economic trade-off will vary.

I said it's irrelevant, because it's unconstitutional. And I'm not going to set that aside to consider whether or not it is effective in accomplishing the stated goal.

I wasn't asking you to set anything aside, GOB. I was asking Sebastian. You think it's unconstitutional. Bully for you. It wasn't an argument I felt like having.

That aside, I agree with those who advocate single payer first and public option second. The public option would have become single payer, at least within its areas of coverage, and I'm perfectly happy to say that. It doesn't bother me that people think the public option is a back door to single payer, because they are admitting that insurance companies can't compete. And subsidy, shmubsidy. Cordon the public option off like SS with its own tax and its own budget, and see how it goes.

What was that about assassination, again?

I should have noted that I'm not necessarily disagreeing about the merits (or lack thereof) of the way insurance has been done in the past, nor about the Constitutionality of the latest action (nor MediCare or Medicaid, actually).

It's just another example of how, once we decide to give a power to the Federal government (whether it is power claimed by the executive, or power legislated by Congress), it keeps growing.

GOB,

These cannot be logically equivalent. I have a choice to buy the house or not without negative consequence, not with the health insurance. Am I losing my mind?

You do suffer a negative consequence when you don't buy a house. You lose the deduction for mortgage interest. Plus, the tax code is stuffed with credits for individuals and businesses for all sorts of things.

My point is that getting a credit (or deduction) for doing something specific is exactly the same, logically, as paying a penalty for not doing it.

There is, I note, an American Samoa Economic Development Credit. I assume this means that If your business does no economic development in American Samoa its taxes will be higher than if it does such development. Isn't that a penalty for not helping out the Samoans? Constitutional?

Bernard, the practicality of the penalty is irrelevant because the penalty is unconstitutional. So it must be unconstitutional, otherwise that wouldn't be true. It's clearly a settled issue, rendering all further discussions of constitutionality, and therefore practicality, moot.

These cannot be logically equivalent. I have a choice to buy the house or not without negative consequence, not with the health insurance. Am I losing my mind?

Yes, what Bernard said.

You're not losing your mind, you're just not paying attention to the fact that other people get big deductions, and you don't.

Also, Marty: I second russell et al's advice that paying the tax penalty is a better option than suicide, and that you should consider that as option "C."

"Also, Marty: I second russell et al's advice that paying the tax penalty is a better option than suicide, and that you should consider that as option "C.""

I'll just leave it at this, it is a long logical stretch to create the equivalancies you, hsh, russell et al are reaching for. It is a law that requires you to buy insurance and fines you if you don't. The mechanics are irrelevant.

It isn't an interest deduction or a tax credit or any other normal social engineering tax break. It is a fine for breaking the law now hidden in the tax code. It is ok with you because you are for requiring insurance. That's fine. I am not for requiring insurance (for adults) and I am not for the mechanism, either.

The mechanics are irrelevant.

I'd say they aren't.

The mechanics are the difference between "something government has the authority to do" and "something government does not have the authority to do".

Ponder it for ten minutes and you will realize there are about 1,000,000 things just like that in your everyday life.

The way things are done is quite often what makes them legitimate.

...the equivalancies you, hsh, russell et al are reaching for.

Not that I disagree about the equivalencies, but I haven't made any statements about them on this thread, Marty. I simply wanted to know Sebastian's thoughts on the practicality of the penalty as it relates to rescission and pre-existing conditions, and how it might constitue "bad" social engineering, without getting into the constitutionality of it.

That said, what exactly makes it such a "logical stretch" to equate monetary *benefits for doing* and *penalties for not doing*? I don't see the crazy there.

The mechanics are irrelevant.

Really? That seems to be what the whole argument revolves around.

(Looks like russell already got to it. Posting anyway.)

what exactly makes it such a "logical stretch" to equate monetary *benefits for doing* and *penalties for not doing*? I don't see the crazy there.

Agreed.

Again, if the law had said, henceforth, everyone's taxes are raised $5K, but everyone that has insurance gets a $5K credit, that would have been 100% OK procedurally.

But the inverse, totally a stretch, completely out of bounds, etc.

I just don't see it.

That's an interesting point. Are we rewarding people for having kids, or penalizing people for not having kids.

By way of analogy, I mean.

There may be things that make the analogy between a tax credit for having health insurance and the child tax credit a poor one. If so, I'd like to hear them.

"I simply wanted to know Sebastian's thoughts on the practicality of the penalty as it relates to rescission and pre-existing conditions, and how it might constitue "bad" social engineering, without getting into the constitutionality of it."

Sorry if I lumped you in inappropriately. I think this is a good point that should be addressed with numbers by proponents.

There is no such thing as recission for the 80% of Americans covered through their employer, you simply don't answer health questions when signing up for the group policy. The preexisting conditions limitations are also not a part of most employer policies. So we are talking about the impact on insurance companies of treating the twenty million privately insured like the 280 million already insured.

I would like to have numbers that tell me they would go out of business if that law was just passed, without the requirement.

As for the, "well no one would get insurance then"...Many young people take this route now. Older people and people with families would continue to get insurance because it pays for lots of stuff they do (checkups, prescriptions, emergency room visits, shots for the kids) all the time.

So without the waving of the arms and end of world stories, what is the actual impact of those two in dollars?

As for the, "well no one would get insurance then"...Many young people take this route now. Older people and people with families would continue to get insurance because it pays for lots of stuff they do (checkups, prescriptions, emergency room visits, shots for the kids) all the time.

So without the waving of the arms and end of world stories, what is the actual impact of those two in dollars?

The problem, Marty, is that employers themselves would stop offering health insurance because it would be superfluous, and an unnecessary expense.

Insurance would be available to all regardless of pre-existing conditions, so employees would not value it, and would prefer to take money instead and then get insurance when they need it. Either way, employers would simply stop it.

In terms of giving you numbers without arm waving, that's kind of hard to do because no country anywhere has been foolish enough to try this.

This much is true, however: there is a broad, overwhelming consensus on both right and left, insurance industry advocate and public advocates, that this would be a disaster of a move.

So we are talking about the impact on insurance companies of treating the twenty million privately insured like the 280 million already insured.

These numbers are also off, because the insurance companies would have to treat the presently uninsured too (not just the privately insured) who would come to the insurance companies when they get sick (and those that are already sick but can't get private insurance because of that fact).

"But the inverse, totally a stretch, completely out of bounds, etc.

I just don't see it."

Some means to an endpoint are allowed and others aren't. There are other methods of finding criminal liability outside a jury, but not allowing the check of a jury would be unconstitutional for a felony.

Letting prosecutors merely rule on guilt would probably have much of the same endpoint for those who trust government functionaries to try to act for the public good. For a huge majority of the cases you would get the same outcome as now. But evading the jury protection would be unconstitutional.

If they were EXACTLY equivalent, Democrats wouldn't have had to disguise the penalties as tax breaks. That was done for political misdirection purposes so they could claim that HCR would formally save lots of money.

You say that this was done to make it politically more palatable. But that is another way of saying that it was done to evade the political consequences of being straight-forward. The fact that the Constitution encourages a straight-forward understanding in this case, and disfavors political misdirection, strikes me as a mark in favor of the Constitution.

"Because the insurance companies would have to treat the presently uninsured too (not just the privately insured) who would come to the insurance companies when they get sick (and those that are already sick but can't get private insurance because of that fact)."

Except we, and the insurance companies, already pay for this in the health care costs, because it is what happens today. The fundamental cost savings justufucation is that those people already do this, and it makes everyones health care and insurance cost more. So you can't say it will save money to fix it, then say it will cost even more if they have to be covered. At worst those people become a financial wash, at best they get insurance and the cost of treating them goes down.

So,no, my numbers are accurate.

The cost savings justification is that if people have health insurance that provides for things like regular checkups, they won't wait until a chronic condition becomes serious, or wait until something minor turns into something major (and expensive) because they didn't have insurance to pay for the medical costs for the small stuff.

Except we, and the insurance companies, already pay for this in the health care costs, because it is what happens today.

No we don't. It is not what happens today. You're making an untrue assertion.

Well, Eric, they do bypass the insurance companies and just go get treated, very expensively. Same point.

Marty, see Nate at 12:27. Prevention ounces do not equal cure pounds (or unnecessary deaths and disabilities - costly things, those).

Well, Eric, they do bypass the insurance companies and just go get treated, very expensively. Same point.

I'm not sure what you're saying.

Currently, there are about 45-50 million Americans without insurance, and a lot more with. Of those with, most are employer based.

If we changed the rules of insurance, and made it so ins cos could not deny coverage for pre-existing conditions - or purge via rescission - then many employers would cease offering insurance because it would not be much of a benefit, and many employees would opt for cash instead (at present, many businesses offer employees cash instead (less than the cost of insurance, natch)).

That is a separate conversation than whether having a mandate saves money or not. To be honest, it might be a wash, although early care/detection and prevention do keep costs down.

There's a reason why other cost saving measures were instituted in the HCR signed into law.

More importantly, though, everyone has insurance.

"then many employers would cease offering insurance because it would not be much of a benefit, and many employees would opt for cash instead (at present, many businesses offer employees cash instead (less than the cost of insurance, natch"

This is the heart of your argument that I disagree with. As an employer, and an employee, I would not change my insurance preference based on that change, or perceive it to be less valuable to get the employer based group rate. I know for sure I can't replace my former employers insurance with private insurance without getting a lot less or paying a lot more.

This is the heart of your argument that I disagree with.

It's actually not the heart of my argument, but you can disagree with it as you wish.

While I appreciate your personal anecdote, again, a broad consensus across party lines, ideological lines, and industry lines agree that it would create a death spiral, and employer based coverage would wither and die.

I know for sure I can't replace my former employers insurance with private insurance without getting a lot less or paying a lot more.

But insurance itself would be unnecessary, until you needed expensive procedures/medication. Why pay in at all until then?

Say, at present, that insurance premiums through your employer or privately cost you $400 a month.

But if your med expenses only run you about $1,000 a year, which rational consumer wouldn't opt to keep the $3,800 each year rather than having insurance?

But, you say, what if they get sick or into an accident and have to get an expensive procedure, or need expensive medication?

Well, then, they could go get insurance at regulated rates and could not be denied coverage and begin paying for insurance then - when it makes economic sense for them.

That's the problem. Insurance companies would have to offer coverage to everyone, regardless.

"Marty, see Nate at 12:27. Prevention ounces do not equal cure pounds (or unnecessary deaths and disabilities - costly things, those)."

This should intuitively be true, but for the most part it turns out not to be that big of a cost saver.

I know for sure I can't replace my former employers insurance with private insurance without getting a lot less or paying a lot more.

But, Marty, what Eric is saying is that people wouldn't care if they didn't have insurance when they were healthy if they could simply go get it if and when the need arose. People would rather have cash, whether it comes from not spending their own income on insurance or from their employer in lieu of the employer providing insurance. Why pay for insurance when you don't need it if you can just go get it when you do? Insurance doesn't work that way. It's something you pay for when you don't need it in case you someday do.

Without a mandate and with prohibitions against denying coverage for pre-existing conditions, people will get insurance after they're sick, but not before. What that results in at a given time is a risk pool comprising only people who require care at that given time. That's not insurance. That's just paying for health care when you need it, because the premiums would have to be so high to cover the care costs that they would more or less equal the costs the insured would pay directly if they lacked insurance.

What would be the point of, say, insuring five people needing the same cancer treatments over the same period if they were the only people paying in, they were all using the coverage, and they all only paid for the coverage while in treatment? You would have to charge them exactly what their treatments would cost them to cover them. Actually, a bit more to cover your own overhead as an insurer. You need a bunch of people who don't need cancer treatment over the coverage period paying in to spread the costs to make it worthwhile.

I don't think I'm telling you something you don't know, but you don't seem to be connecting the dots here.

This should intuitively be true, but for the most part it turns out not to be that big of a cost saver.

It might not be that big, but it doesn't raise costs, even if it only lowers costs slightly, and everyone is either covered or paying something less than the premiums into the system, according to their choice. Seems like a net positive to me.

It might not be that big

It would be big if you take into account all the other benefits that would accrue. Malcolm Gladwell took a stab at describing some of them here

The leading cause of personal bankruptcy in the United States is unpaid medical bills. Half of the uninsured owe money to hospitals, and a third are being pursued by collection agencies. Children without health insurance are less likely to receive medical attention for serious injuries, for recurrent ear infections, or for asthma. Lung-cancer patients without insurance are less likely to receive surgery, chemotherapy, or radiation treatment. Heart-attack victims without health insurance are less likely to receive angioplasty. People with pneumonia who don’t have health insurance are less likely to receive X rays or consultations. The death rate in any given year for someone without health insurance is twenty-five per cent higher than for someone with insur-ance. Because the uninsured are sicker than the rest of us, they can’t get better jobs, and because they can’t get better jobs they can’t afford health insurance, and because they can’t afford health insurance they get even sicker.

Well you did add an extra caveat that I believe would be important to understand. Do we believe that the people who went to get insurance the day after they got cancer would be charged the same as the day before? If that is what you mean by regulated rates then the whole concept, both ways is silly.

If you mean insurance companies will be forced to cover those people at some level of rational regulated rates (something less than bankruptcy and significantly more than conscientious people who maintain regular insurance)then I think you are wrong.
It of course would never dawn on me that we would make the insurance the same price in those two instances.

Sebastian,

If they were EXACTLY equivalent, Democrats wouldn't have had to disguise the penalties as tax breaks. That was done for political misdirection purposes so they could claim that HCR would formally save lots of money.

You say that this was done to make it politically more palatable. But that is another way of saying that it was done to evade the political consequences of being straight-forward. The fact that the Constitution encourages a straight-forward understanding in this case, and disfavors political misdirection, strikes me as a mark in favor of the Constitution.

Oh please. Things are done for political misdirection constantly (see, e.g., Bush tax cuts, expiration of).

Are you really claiming that we can have two substantively identical pieces of legislation with one Constitutional and the other not, based simply on the choice of language used?

Well you did add an extra caveat that I believe would be important to understand. Do we believe that the people who went to get insurance the day after they got cancer would be charged the same as the day before? If that is what you mean by regulated rates then the whole concept, both ways is silly.

Marty, if an insurance company could charge someone with a pre-existing condition whatever they wanted, then what good would preventing denial based on pre-existing conditions be?

I mean, the insurance company could say, sure, we'll give you coverage...for a billion dollars a year!

That wouldn't really work in terms of helping people with pre-existing conditions, though, would it?

If you mean insurance companies will be forced to cover those people at some level of rational regulated rates (something less than bankruptcy and significantly more than conscientious people who maintain regular insurance)

How would you even calculate that? Even just a rough sketch of the formula? Take the case of the kid born with MS or the person who contracts HIV while uninsured, or something akin, how much would the insurance company be able to charge?

If that is what you mean by regulated rates then the whole concept, both ways is silly.

And I'm not sure what you mean by "both ways."

The problem America faces - as opposed to all other modern, industrial nations (and quite a few countries below that standard, much to our chagrin) - is that substantial numbers of people either don't have insurance, are underinsured or could lose their insurance if they get fired/retire/leave the work force for other reasons.

The best solution would probably be to move everyone to single payer govt provided insurance, with private insurers offering supplemental to those that could afford it.

By doing this, you increase the maximum pool size which spreads the costs, everyone pays into the system with their taxes so it has enough revenue, and (bonus) we cut down on myriad excess costs - from bookeeping with forms for 30 different carriers, to profit margins requiring higher premiums, to advertisingrequiring higher premiums, to lawsuits re: rescission requiring higher premiums, etc.

However, we decided that we wanted to preserve the private insurance industry's large presence in the market, so we attempted to create universal coverage via the private market instead (this was a mistake, but unfortunately NO ONE in the GOP would go along with single payer, and too many Dems were opposed. To much insurance industry money sloshing around the halls of DC).

But in order to do so, we have to guarantee that everyone gets coverage from someone, and, likewise, that insurers can't deny coverage (if insurers can deny coverage, then it's not universal, and we haven't solved anything!).

That's where the mandate comes in. The mandate creates the ideal pool size, and guarantees that everyone buys in, which will initially swell the revenue of the insurance companies.

That swollen revenue stream will be needed because insurance companies will now be offering coverage to people that it ordinarly wouldn't because they are so high cost, and because insurance companies will no longer be able to find loopholes to rescind other patients that get sick.

That's the tradeoff for insurance companies: take a hit on the medical payouts to sick customers, but get more money because now everyone has to buy in, thus increasing the customer base.

But you CAN'T have one without the other, unless we switch to single payer and leave private insurers to fill in the cracks of the national insurance offering.

Do we believe that the people who went to get insurance the day after they got cancer would be charged the same as the day before?

The point I was trying to make is that, without the mandate, the system is unworkable. It would fail. Even if you could get insurance cheaper pre-cancer than post-cancer, lots of people will take that risk. The ones who won't take that risk are the ones who already have cancer or have strong reason to believe they will get cancer.

Let's look at it from the standpoint of age. Young people will forego insurance if it will net them some cash. I know. I did it when I was young. I took an offered payout from one employer contingent upon my electing not to receive the health plan they offered when I was a contract engineer in my mid twenties. I took contract work that paid more in salary and per diem, but lacked insurance. I wanted money more than insurance, because I was young, healthy and didn't have a family to worry about.

When people do what I did, they are increasing the risk pool for insurers. For insurance companies to survive or make a given profit under such conditions, they have to charge more in premiums or find ways to deny coverage, be it before or after someone has obtained a policy.

You can say it's not fair to make healthy people pay into a system when they don't need it, but everyone who lives long enough gets old and will need care (in aggregate). I look at it as making your young, healthy self pay towards the care of your old, sick self rather than making today's healthy people pay for today's sick people (again, in aggregate).

At any rate, if you stop rescission and denial for pre-existing conditions, you have to have a mandate, or it just won't work. You might not believe that, but lots and lots of experts say you're wrong. I think common sense does, too, but that's more opinion than fact.

If they were EXACTLY equivalent, Democrats wouldn't have had to disguise the penalties as tax breaks.

That would be an excellent disguise, of course, but the "penalties" are actually "disguised" as tax *increases*, which isn't much of a disguise or misdirection.

But can you explain briefly the principle you're defending here? It can't be that everyone should pay the same taxes, because all those other tax credits already mean that everyone doesn't. Why is the differential permitted to move in only the downward direction? What's the ethical argument underlying that?

Without a mandate and with prohibitions against denying coverage for pre-existing conditions, people will get insurance after they're sick, but not before. What that results in at a given time is a risk pool comprising only people who require care at that given time. That's not insurance. That's just paying for health care when you need it, because the premiums would have to be so high to cover the care costs that they would more or less equal the costs the insured would pay directly if they lacked insurance.

Exactly--if people are allowed to act according to their own inclinations, free and clear of gov't supervision, they will act foolishly by not buying insurance until they need it. So, the gov't is thus justified in forcing its foolish and unwise citizens to buy insurance or else. Today it's a penalty, tomorrow, who knows?

Didn't start following this until just a minute ago. Seb's points are grounded in the constitution which limits what gov't can do and how it can do it. His post addresses assassinating US citizens without any due process whatsoever. This is a no brainer.

Can the gov't require each and every citizen, as a condition of citizenship, to buy one or more designated products or services because they, you know, really ought to have said product or service? Not under any provision of the Constitution I can find.

Why isn't HCR like car insurance? Because the right to drive on a public highway is not constitutional. It is not fundamental: it requires a license from the state gov't. The license--which means permission from the gov't in this case--is to use the public highways of the state. The gov't, as a condition of issuing the license, can require financial responsibility for any harm that the licensee might cause on the public roads.

A tax benefit for an act or omission is not the inverse equivalent of a penalty for the some other act or omission. One can act voluntarily and avail oneself of the tax benefit or one can decline to act, or can act differently, and forego the benefit. The individual's liberty to do or not as he/she pleases remains intact.

What's the ethical argument underlying that?

Hell, what's the Constitutional argument underlying that?

Congress can offer tax breaks to people that take X action (that's Constitutional because [FILL IN THIS BLANK PLEASE]), but cannot penalize people that take Y action which is UnConstitutional because [FILL IN THIS BLANK PLEASE].

Where in the Constitution does it say that one is allowed, and not the other?

Congress can offer tax breaks to people that take X action (that's Constitutional because [FILL IN THIS BLANK PLEASE]), but cannot penalize people that take Y action which is UnConstitutional because [FILL IN THIS BLANK PLEASE].

Eric, the penalty isn't for taking action, it's for refusing to take action, i.e. to buy a product. No one is required to qualify for a tax break. The gov't puts it out there and either one qualifies or doesn't. There is no constitutional authority that permits the gov't to force people to buy a product as a condition of existing. To use a public facility, such as roads, yes, the gov't can attach strings. But not for being born in the US.

There is no constitutional authority that permits the gov't to force people to buy a product as a condition of existing.

There that force word again.

Yeah, it's not "forcing" so much as offering a higher tax burden to those that forego the purchase thereof.

Again, what is the actual Constitutional argument?

"it's for refusing to take action, i.e. to buy a product."

Or parenting.

See my question, above. No one has taken a crack at it yet.

I'm not a fan of incentivizing or disincentivizing behaviors via tax credit, so the point is kind of moot with me. Still, if you're not kicking and screaming over child tax credits...

Maybe because they're less punitive? We have a threshold of pain issue, here?

There's a gazillion distorting credits, deductions, etc in the tax code; things that encourage borrowing, encourage home ownership, encourage having children, etc. All of those encourage certain kinds of behavior or, equivalently, penalize those who don't behave in those ways.

Eric, the penalty isn't for taking action, it's for refusing to take action, i.e. to buy a product.

Just as the lack of a mortgage interest deduction isn't for taking an action, it's for refusing to take an action, i.e. buy a house.

(And of course, if you choose not to decide, you still have made a choice. But only a Canadian would ever say that.)

just as the lack of a mortgage interest deduction isn't for taking an action, it's for refusing to take an action, i.e. buy a house.

If you don't buy house, the gov't expects nothing of you. If you don't buy insurance, you pay a fine. So far.

If you don't buy house, the gov't expects nothing of you. If you don't buy insurance, you pay a fine.

The government might "expect nothing of you" but it taxes you more than the people that do buy houses - they get a deduction, and you don't, hence your tax burden is higher.

Six of one, half a dozen of the other.

And from a Constitutional law perspective, what is the difference? In Con Law terms?

It'd be good to see how this works laid out in detail. Because just how awful (or not-) it is depends a lot on implementation.

Eric, let me (as a total non-lawyer) take a shot at this. The Constitution forbids the (federal) government from "taking" without due process. It does not forbid the government from giving, once it has acquired money (or other assets) from taxes; which are allowed. So it is Constitutional to set up tax breaks for those who do something, but not to set up penalties for failing to do it.

I agree that (assuming that the total net tax burden for the entire population is the same) from the economic perspective of the individual, it is a distinction without a difference. With incentives, the nominal tax rate before incentives is higher, to pay for the incentives; with a penalty, the tax rate is lower because the government income can be topped up with money from the penalties. But from a Constitutional law perspective the two approaches are quite different.

Its not "so much as"....I just like that.

So, if the government decided to subsidize the tobacco industry by requiring you to buy a carton of cigarettes every week, or fining you if you didn't then that would be constitutional?

I am betting that lots of people would think not.

This is a Constitutional question, but we really are split on the "I think HCR is important enough to argue for it" and "I think it's poorly conceived" lines.

It won't be the first Constitutional question argued that way.

"Are you really claiming that we can have two substantively identical pieces of legislation with one Constitutional and the other not, based simply on the choice of language used?"

Isn't that really your argument and Eric's? We all understand that it isn't Constitutional to create a criminal penalty, right? But call it a 'rebate' and you think we're fine?

Eric, "Where in the Constitution does it say that one is allowed, and not the other?"

Congress doesn't have police power coextensive with the states.

"Congress can offer tax breaks to people that take X action (that's Constitutional because [FILL IN THIS BLANK PLEASE]), but cannot penalize people that take Y action which is UnConstitutional because [FILL IN THIS BLANK PLEASE]."

your first blank can be [pursuant to promoting the general welfare] and the second [because it has limited police/criminal code powers--see section 8].

The idea that some processes to an end might be Constitutional while others might not be is so wholly uncontroversial that I can't believe you are asking me to defend it.

You understand that Congress can take via the power of eminent domain, but not without due process of law, right? So they could set up a plan to take your house for a freeway, but not just because they didn't like you. And if they didn't like you, and set up a freeway through your house, you'd probably lose your house even though the purpose was to punish you because you weren't liked by Reid or whomever.

Congress can punish people for felonies, but they have to make a jury trial available.

Congress can make people pay taxes, but they can't make people pay poll taxes. You could go through each section of the Constitution and find things like that. It is perfectly possible that Congress could be empowered to do something about health care reform, while the particular health care reform of forcing people to buy private insurance under threat of tax penalty is unconstitutional.

Say whatever you want about this particular case, but please stop being so shocked by the idea that sometimes one form of a means to an end might be unconstitutional while another one might not be. That just isn't abnormal at all.

Sebastian,

Suppose the law simply provided a subsidy - a refundable credit, say - for buying health insurance? Would that be Constitutional? If you don't think so, fine, but then please explain why the various credits I linked to above are constitutional.

Of course different means to an end may differ in their constitutionality. But here there is no difference. That's my point.

You calculate your taxes, and then there's a line on the form that says:

Do you have health insurance? Please check Yes or No.

If you checked "Yes" subtract $1000 from your almost-final tax to get your final tax."

Or there's a line that says:

Do you have health insurance? Please check Yes or No.

If you checked "No" add $1000 to your almost-final tax to get your final tax."

Is that the difference, in your mind, between constitutional and unconstitutional?

"(And of course, if you choose not to decide, you still have made a choice. But only a Canadian would ever say that.)"

@Hogan,

I see what you did there... :)

You must have not continued to read(or listen to) what Neil Peart wrote...

There was a decision for the choice, and the choice was "free will". :)

By the way Neil Peart was an Ayn Rand fan, and often referred to "John Galt-ism", so I am not sure if you are trying to enamor his philosophy to bolster your point of view, or not...

"Is that the difference, in your mind, between constitutional and unconstitutional?"

Yes, and no. Suppose the government levies a fine of $1000, without a trial, against everybody who reads a book in any given year. Calls it a fine, even. Violently unconstitutional, right? Violates the 1st amendment.

Now suppose the government levies a head tax of $1000 per person, and in a nominally separate piece of legislation issues a check to everyone who hasn't read a book. Call it the "Go out and buy yourself a library!" act, or some such. (No need to actually require the money be spent on books...) Likely to be upheld as constitutional.

So, yes, the government CAN do two different things, which end up with exactly the net result, and one will be upheld, the other struck down. Because whether something is constitutional or not is mostly about the precise means chosen, not the end. The courts don't much inquire into ends, and Congress often lies about them, anyway.

An actual illustration of this would be the National Firearms Act. It was implemented as a "tax", because it was well understood that a fine would have been unconstitutional. And it worked.

The idea that some processes to an end might be Constitutional while others might not be is so wholly uncontroversial that I can't believe you are asking me to defend it.

Ugh, Seb, I'm not asking you to defend the concept in the abstract, I'm asking about the present issue. That should be gobsmackingy clear from my question.

Say whatever you want about this particular case, but please stop being so shocked by the idea that sometimes one form of a means to an end might be unconstitutional while another one might not be. That just isn't abnormal at all.

Ugh, Seb, I'm not "shocked" at all. I'm asking about the present example, of a tax penalty or benefit and if it is a Con distinction. Nothing I've seen yet convinces me, and my guess is that the SCOTUS will agree with me.

Please, enough with the claims that I'm somehow mesmerized by the fact that the Constitution treats things differently in the abstract.

The Constitution forbids the (federal) government from "taking" without due process. It does not forbid the government from giving, once it has acquired money (or other assets) from taxes; which are allowed. So it is Constitutional to set up tax breaks for those who do something, but not to set up penalties for failing to do it.

But if taxes are allowed, and are not considered taking without due process, I'm not sure I see the problem here of assessing higher taxes on people that don't have health insurance. Just as I don't see the problem of assessing lower taxes on people that have kids, buy a house, buy a green automobile, etc.

Congress doesn't have police power coextensive with the states.

Not sure I'm convinced by that. Congress does have the power to tax people, and can increase and decrease taxes as it wishes, and the IRS can enforce that regime.

Not a winning Con Law argument.

So, yes, the government CAN do two different things, which end up with exactly the net result, and one will be upheld, the other struck down. Because whether something is constitutional or not is mostly about the precise means chosen, not the end. The courts don't much inquire into ends, and Congress often lies about them, anyway.

Yes, Congress can do this "in theory."

I am NOT arguing that it is impossible to concoct a scenario, as Brett did, by bringing in First Amendment violations.

However, the HCR legislation does not violate the First Amendment. So, again, what part of the Constitution does it violate?

That would be the Tenth amendment. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The federal government violates the Constitution, not just when it does things it is explicitly prohibited from doing, but also when it does things it is not explicitly authorized to do.

This is known as "enumerated powers doctrine", and while it's fallen out of favor with a Court, every member of which had to be confirmed by a Congress not fond of being limited to enumerated powers, it is still built right into the Constitution. Built in by virtue of the fact that the Constitution DOES enumerate powers, and the Tenth amendment DOES delegate to the states or the people those powers the Constitution doesn't delegate to the federal government.

The federal government acts unconstitutionally when it exercises powers it is not delegated.

But Brett, the power to tax is an enumerated power.

That's basic.

"Ugh, Seb, I'm not asking you to defend the concept in the abstract, I'm asking about the present issue. That should be gobsmackingy clear from my question."

Sorry, it really wasn't clear. I've been asked to defend "Are you really claiming that we can have two substantively identical pieces of legislation with one Constitutional and the other not, based simply on the choice of language used?" and the answer is so obviously YES that I'm having trouble.

Second, so far as I can tell, there is NOT a deduction for failing to have insurance, there is a tax penalty.

So we are still talking about Congress creating a penalty unless you specifically purchase a particular product. That is taking the Commerce Clause to complete new levels. Never before has Congress asserted the power to penalize individuals for failing to purchase a product. This is a new power, or at the very least a never-before exercised power. Would it be proper to have a tax penalty for failing to buy an American car? Yes. Would it be improper to subsidize American cars, or to create a tariff for foreign cars? No.

Further, despite assertions to the contrary there is a difference between deductions and tax penalties. For poor people, a deduction is worthless, but not painful. If you are at zero taxes the deduction doesn't help or hurt you. If you are at zero taxes (or under EITC negative taxes) a penalty will cause you to pay. This may not seem like a big deal at the $95 level for otherwise rich people like most of those here, but A) if you are on the margin it is going to hurt, and B) no one here should be naive enough to believe that the penalty stays so low if very many people catch on to the loophole that the penalty is supposed to guard against.

"But Brett, the power to tax is an enumerated power."

The penalty is quite probably an illegal head tax under Article I Section 9 (it clearly isn't an income tax nor an excise tax, nor a proportional capitation tax.) Head taxes have never been legal since the ratification of the Constitution.

Further, even the state highway funding cases (removing 5% of highway funding if the drinking age wasn't raised to 21) only authorize Congress meddling in things beyond its direct power if the threat is not 'too coercive' (See South Dakota v. Dole where the Court notes again and again that the 5% threat is fairly small). But HCR makes massive new changes in traditional state power areas through the threat of 100% Medicare defunding. That may or may not be a different Constitutional issue.

So we are still talking about Congress creating a penalty unless you specifically purchase a particular product. That is taking the Commerce Clause to complete new levels. Never before has Congress asserted the power to penalize individuals for failing to purchase a product.

No, but since Congress has the power to offer a tax deduction, why is a tax penalty such a stretch - in Constitutional terms? I don't see the Con Law argument.

Further, despite assertions to the contrary there is a difference between deductions and tax penalties. For poor people, a deduction is worthless, but not painful.

But poor people don't have to pay the penalty, either. That's written into the law.

The penalty is quite probably an illegal head tax under Article I Section 9 (it clearly isn't an income tax nor an excise tax, nor a proportional capitation tax.) Head taxes have never been legal since the ratification of the Constitution.

But it is a part of the income tax. It is an extra tax on income. If you don't have income, you don't pay this penalty. Even if you have income, but below a certain threshold, you don't pay this penalty.

Still not persuaded and, again, I bet the SCOTUS sides with my reading.

"We've never done it that way before" is not a constitutional argument, nor is "but it will affect poor people disproportionately, or it would if it were written differently that how it's written." Pursuit of social goals through the tax code is pretty well established, and I don't see anything in the Constitution that clearly disallows that, or that clearly disallows one particular way of structuring that pursuit.

And I still don't understand what ethical or ethico-political value is being defended here. My liberty to not buy health insurance is no more threatened by this than my liberty to rent a house is threatened by the disfavored treatment I would receive for that decision, unless we're working off of some extremely (and I would say untenably) literal notion of negative vs. positive liberty.

(I posted this earlier and it seems to have disappeared)

Sebastian,

I've been asked to defend "Are you really claiming that we can have two substantively identical pieces of legislation with one Constitutional and the other not, based simply on the choice of language used?" and the answer is so obviously YES that I'm having trouble.

And I think the answer is so obviously "NO" that I'm having trouble. When I say "substantively identical" I mean just that. The ends are the same not in a general sense, but exactly. It's not a case of both laws try to encourage people to have health insurance, it's a question of both laws making those with insurance pay $1000 less in taxes than those without. In other words, even the means are the same, just described in different words.

You object that a deduction is not comparable to a penalty. But a credit is - they are logically the same thing - and that issue you have not addressed.

Another point, unrelated to HCR, is this. You are arguing in effect that we may have two laws, which do exactly exactly the same thing in exactly the same way, and yet one can be constitutional and the other not. If so, we have a strange Constitution indeed - one which determines the acceptability of statutes based on the words chosen to write them, and ignores (sometimes) what they do.

By that sort of reasoning even things which are plainly unconstitutional might sneak by, if only a sufficiently clever wordsmith could be found.

"By that sort of reasoning even things which are plainly unconstitutional might sneak by, if only a sufficiently clever wordsmith could be found."

Aside from the fact that "clever" would be an exaggeration, ("If only the right boilerplate is tacked on." would be closer to the truth.) that sounds like a fair description of the current reality.

"You are arguing in effect that we may have two laws, which do exactly exactly the same thing in exactly the same way, and yet one can be constitutional and the other not. If so, we have a strange Constitution indeed - one which determines the acceptability of statutes based on the words chosen to write them, and ignores (sometimes) what they do."

Again, this isn't surprising. It happens all the time that putting something in one sense will cause Constitutional objections while doing it a slightly different way doesn't. But since Eric also seems to agree with me on that particular point, I'll let him take it further. Maybe it will make more sense to you defended from the left.

Maybe it will make more sense to you defended from the left.

What does this mean? I'm having a hard time parsing this and linking it to what Bernard has written in this thread.

It means that I've tried to explain it and I'm at a loss as how to explain it further. Since Eric agrees with me I'm willing to leave it to him to explain it further with the idea that maybe it will make more sense in some explanation or set of examples that come from him that I'm not able to come up with. The interaction between the Supreme Court and Congress is a funny thing. It seems to me non-surprising, and in fact completely normal that a point of law might end up turning on a mere wording difference from Congress. It could allow friendly justices to seize on something which lets them sign off on it, while other wording might not.

The head tax/excise tax distinction is a perfect example. Couch something as a per person, fixed amount tax, and you have a clearly unconstitutional head tax: "[n]o capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.". Raise everyone's tax by that amount and offer a rebate and suddenly you aren't because the entire income tax system has been couched as an excise tax by the Supreme Court. I'm not blaming Bernard for failing to agree with me, I just don't know what to say to make it clearer so I'd be happy to have Eric take a stab at it, since he apparently agrees with me in principle (that Constitutionality--in the sense of things that will pass muster from the Supreme Court--really can just turn on wording from Congress) though he disagrees that HCR is such a case.

What I don't understand is the 'defended from the left'. Bernard seems to be suggesting that Constitutionality doesn't hinge on simple wording but on a deeper sense of fairness and a way of deciding how resources are gathered and distributed. While I accept that at some point, you deal with the words Congress wrote, what the bill does is where constitutionality resides. Eric and Brett dealing with the question of HCR and how SCOTUS will deal with it and assume that as the law has already been written, the question is looking at the words and seeing how the SCOTUS will rule on them. And since the interaction between Congress and SCOTUS is nothing but words, it is trivially true that constitutionality depends on how those words are read. But Bernard's aside seemed to be a question of whether you believe that it is just in the words or there is some spirit of constitutionality involved. That's the phrase that I don't understand. Sorry for being so dense, but I don't see how that is a question from the left or the right, so I don't see how Bernard might 'defend it from the left'.

Sebastian,

I'm going to sign off of this because I'm going away for a week, and we are clearly not going to resolve our differences.

FWIW, I don't find Brett's example persuasive. Most important, he seems to me to be just repeating the fallacy. Secondarily I'm not sure I see the 1st Amendment violation here. Would an excise tax on books be OK? Here in MA we pay sales tax on books, among other things, but some common items, groceries, prescription drugs, inexpensive clothes, are exempt. Unconstitutional? But if one system he proposes is unconstitutional then so is the other, and vice versa.

To quote LJ,

what the bill does is where constitutionality resides.

If you have a case where two different wordings produce somewhat different results, that's a different story.

Otherwise you're saying the logical equivalent of:

"A $2000 import duty on Japanese cars is fine, but you can't charge buyers of Japanese cars a $2000 fee." (I'm not actually claiming the latter is unconstitutional, just pointing out where this sort of logic can lead).

It strikes me as dangerous nonsense, but I don't think I'm going to convince you.

If we're going to get into enforcing the spirit of the Constitution, then HCR is doomed: It was passed as a 'revenue' bill with the aim of doing something besides raising revenue. From the perspective of the Constitution's spirit, it's nothing but a colossal exercise in bad faith.

-promote the general Welfare
-insure domestic Tranquility
or maybe even
-establish Justice

that's the spirit I look to.

I certainly think it is dangerous nonsense, but it is also the state of Constitutional law. And appeals to 'the spirit of the Constitution' cannot possibly get less far toward this method of HCR rather than further. The spirit of the Constitution is highly federalized, respects the ability of states to regulate most of their own affairs, has limited commerce regulations, and definitely no head taxes.

I see a huge portion of Constitutional law as hair splitting, often not particularly rational.

Sheesh, speaking of unclear, how about I try for an intelligible sentence: appeals to 'the spirit of the Constitution' can't get us closer to HCR being Constitutional without ignoring huge portions of the Constitution.

What "huge portions of the Constitution", Sebastian? Brett at least claims the Tenth Amendment, as unconvincing as that may be.

Didn't particularly expect it to be convincing, I'm satisfied to have it be correct. The Tenth amendment was adopted for the specific purpose of limiting the federal government to enumerated powers, and the very fact that powers are listed makes no sense, if the list is not understood to be exhaustive.

This isn't the modern 'interpretation' of the constitution, but modern constitutional jurisprudence is nothing more than a colossal exercise in bad faith, the political class's means of defeating a constitution which granted them less power than they were willing to settle for.

Article 1 Section 9, where we find out about limited powers given to Congress, the rest being reserved to the states.

As they said in Ghostbusters, don't cross the streams. One stream is discussing how we ideally should envision the issue of constitutionality, the other is discussing a bill that has been passed and has had people threaten to take its wording up to the Supreme Court.

As far as enumerated powers, as Tom Lehrer sang 'We'll try to stay serene and calm, when Alabama gets the bomb...'

Signs are that Alabama has the bomb.

And that is why you're not convincing, Brett, because you don't actually engage in any of the issues, you just say "This is what it says, even though it's been a settled matter of not what I said it said for years, and I'm not going to defend that, just keep repeating myself so I can call everything I don't like unconstitutional." I would note, as others did before, that the Constitution makes no allowance for the Air Force's existence or funding.

Sebastian: Article 1, section 9 says things the Congress can't do. I think you're thinking of Article 1, Section 8. I note that taxes are specifically mentioned "to provide for the Common Defence and General Welfare" (also, the Post Office, which many "libretarians" seem to hate). Also, note the portion that talks about excise taxes, and imposts, in regards to the tax issues.

Also, I would point out the practical issue that state regulation of health insurance has pretty much not worked, nor has the "free market". Also, it sure looks like signle-payer health insurance would be perfectly Constitutional, under any interpretation.

"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;"

That is Section 8. But I did mean Section 9 "No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken." Which, even when modified by the 16th amendment, is still considered to be a Constitutional prohibition against head taxes (normally called poll taxes in every other English speaking country)--which is to say a prohibition against flat number taxes by the federal government (flat percentage taxes are of course allowed).

So, as currently formulated, HCR is either a direct fine for failing to get health insurance, and thus a huge new world under the commerce clause, or it is a head tax which is clearly unconstitutional. But if you make it a deduction, it avoids the head tax problem and sidesteps the commerce clause.

Now if you want to argue that we shouldn't be treating the Constitution so shabbily as to evade its restrictions by just playing word games with functionally equivalent things, I'm right there with you--on so many levels.

But if you want to argue that as a practical matter, given the way the Courts have actually interpreted the Constitution, that it can't possibly be the case that a mere working difference--with no practical outcome difference whatsoever--can change something from unconstitutional to constitutional, you're just wrong. It can and it does. Now I don't like that fact. I think that fact is ultimately very bad for the country. But as a descriptive matter, yes mere wording can make a big difference.

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