Emory law professor Robert Schapiro has an op ed arguing that the federal mandate requiring individuals to purchase health insurance included in the current health care bill is both constitutional and consistent with federalism [HT: Alison Schmauch]. I agree that the mandate would probably be upheld under current Supreme Court precedent. However, like many other defenders of the constitutionality of the individual mandate, Schapiro doesn’t even consider the possibility that that precedent is wrong. For reasons I describe here, the mandate is inconsistent with the text and original meaning of the Constitution. Even if the Supreme Court decides that the mandate is constitutional, members of Congress and the president have an independent duty to assess the constitutionality of the legislation they vote on and sign. They all have taken oaths to uphold the Constitution, not merely what the Supreme Court says the Constitution means. If the courts rule that a particular congressional or executive action is unconstitutional, the other branches of government should obey. Otherwise, the courts would be unable to serve as an effective check on legislative and executive power. But no constitutional principle prevents Congress and the president from interpreting their authority more narrowly than the Supreme Court does.
In fairness to the congressional Democrats who support the health insurance mandate, it must be pointed out that the Republicans didn’t exercise constitutional self-restraint back when they controlled Congress. Republican bills such as the ban on partial birth abortion, the No Child Left Behind Act, and others, also pushed federal power well beyond the limits established by the text of the Constitution. And the Republicans made little or no effort to seriously consider constitutional limits on their power beyond those set by court decisions. For the Democrats to live within constitutional constraints that the Republicans ignored might be seen as a kind of unilateral disarmament. I hope that the two parties would agree on mutual disarmament, but I’m not holding my breath that any such thing is likely to happen.
Schapiro also argues that the health care mandate is consistent with federalism in ways that go beyond merely respecting constitutional constraints:
Even if current law does permit a mandate, though, one might ask whether it should....
What the critics’ narrow arguments miss is the power of federalism illustrated by the health care reform efforts. Federalism promotes liberty and innovation by fostering a dialogue among local and national bodies, rather than by inviting courts to draw lines between them.
Massachusetts served as a laboratory with its own attempt to offer comprehensive health care, including an individual mandate. The federal government has learned from that experience. Moreover, the states will play an important role in implementing any national health care system.
What then should we make of state constitutional amendments purporting to bar a federal individual mandate? Such amendments show the value of federalism. State legislatures provide vital platforms for dissenting voices. Such amendments cannot block federal law. But the main point of federalism is to inform public debate, not to invite a court to terminate democratic dialogue.
The health care controversy demonstrates the continuing significance of federalism. Contrary to those impugning the constitutionality of mandates, though, it is a federalism of the people, by the people and for the people, not a federalism of the courts.
“Federalism” can mean many different things to different people. In my view, however, there are important beneficial aspects of federalism that go beyond merely “inform[ing] public debate.” Among these are policy diversity and competition between state governments, which enable people to “vote with their feet” for the policies they prefer. Preserving these benefits of diversity and competition requires enforcement of limits on the power of the central government. Otherwise, both will often be stifled through the imposition of one size fits all centralized solutions. If we want “a federalism of the people, by the people and for the people,” we need constitutional limits on the power of the central government.
If, as Schapiro assumes, the only important purposes of federalism are to facilitate “public debate” and promote experimentation, it’s not clear why we need federalism at all. Public debate can and does occur at the national level too. Indeed, the public and the media usually pay much more attention to proposed federal legislation than to state policies. And a unitary central government can still engage in policy experiments, including ones whose geographic scope is limited. For example, it could establish an experimental health care policy that is limited to one part of the country and then impose it on the rest of the nation if the results prove that the experiment “worked.”
UPDATE: I have eliminated a typo and some minor infelicities that were in the original version of this post.
David Welker says:
So Somin,
If voting with your feet is so important, how many times have you done it yourself? You need to get over it. This is a minor point.
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November 5, 2009, 5:57 pmPerseus says:
That sentence needs editing, Prof. Somin.
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November 5, 2009, 5:58 pmJames H says:
I would think an individual health mandate falls under the rubric of police power ... but IIRC, there is no federal police power.
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November 5, 2009, 6:03 pmDavid Welker says:
To what extent is there evidence that members of the Constitutional Convention were heavily focused on people “voting with their feet” when crafting federalism? Of course, the idea that one would move due to religious persecution was not totally foreign to, for example, the Pilgrims in 1607.
But this is a serious question. I would be interested in early records that show that “voting with your feet” is in fact a dominant rationale for federalism and that the idea wasn’t just mentioned in passing, if at all. Further, at the time, how common was migrating due to political disagreement (as opposed to a desire for new land or due to religious persecution) and was such migration celebrated?
I suspect that the dominant reasoning behind federalism was something other than voting with your feet due to political disagreement.
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November 5, 2009, 6:10 pmHouston Lawyer says:
The members of the constitutional convention likely would have shot anyone trying to enforce such a scheme on them. Their concept of liberty never contemplated a federal government that would be so intrusive.
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November 5, 2009, 6:16 pmMark N. says:
While I agree some of the Republican bills you mentioned are also questionable expansions of federal authority, a narrower comparison might be between health-care bills in particular. For example, Medicare Part D seems essentially to be a “public option” for health care, but with explicit subsidies so high that it crowds out private insurance even more than the currently proposed public option would.
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November 5, 2009, 6:17 pmModa says:
I’d really like to see the correct version, too, since it’s pretty vital to this whole idea. Assuming that Court precedent establishes that certain federal actions are permissible, and assuming the legislature and president decide that those actions are good policy, Somin is arguing that the legislature and executive should go ahead and second-guess the Court in order to not do something they think is good policy. It’s a bizarre argument.
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November 5, 2009, 6:19 pmModa says:
National Treasure 4: The Lost Federalist Papers?
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November 5, 2009, 6:21 pmSeamus says:
Couldn’t another constitutional issue be made of the fact that the statutory penalty for not buying insurance would be a direct tax, not apportioned according to population as required by Article I section 2, clause 3?
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November 5, 2009, 6:27 pmModa says:
It could always be an income tax of X dollars coupled with a tax rebate of X if you buy insurance.
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November 5, 2009, 6:33 pmPersonFromPorlock says:
Ha! Nobody expects the Interstate Commerce Clause!
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November 5, 2009, 6:43 pmNunzio says:
I’ve never liked the states serve as laboratories metaphor.
If New Jersey and California want to tax their citizens to the hilt while providing poor public services, that’s up to them. They are independent states, not lab rates for the federal government. I don’t think the federal government should have the power to abrogate those state’s choices any more than they should have the power to impose them on the rest of the U.S.
And Massachusetts foray into health insurance reform (like Tennesse’s) is a reason not to impose it nationally.
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November 5, 2009, 6:57 pmOren says:
I dunno. I live in MA and have not seen either a tax increase (not that it wasn’t high before, but it didn’t go up) or any changes to my private insurance (not that it was perfect before, but it didn’t get worse). So that’s my opinion on the two big boogeymen.
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November 5, 2009, 7:07 pmaf says:
For reasons I describe here, the mandate is inconsistent with the text and original meaning of the Constitution.
The linked argument only says that current Commerce Clause doctrine is wrong. It doesn’t say why an individual mandate violates the Constitution properly understood.
It’s hard for me to see how federal regulation of the health insurance industry is any less consistent with the commerce clause than other federal regulations of industry, such as the FDA Act or the NLRA or FLSA. That ship sailed long ago. If we’re going to roll back the Commerce authority, let’s start with the lower-hanging fruit — laws like the partial-birth abortion ban or much of federal criminal law, which are not really about the regulation of commerce of any sort.
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November 5, 2009, 7:12 pmOff Kilter says:
” If we’re going to roll back the Commerce authority, let’s start with the lower-hanging fruit — laws like the partial-birth abortion ban or much of federal criminal law, which are not really about the regulation of commerce of any sort.”
How can choosing NOT to buy something be commerce?! Seems like pretty low-lying fruit to me...
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November 5, 2009, 7:14 pmNickM says:
Actually, there was strong Constitutional authority for the Partial-Birth abortion bill, but it was never used. Congressional power under the Fourteenth Amendment, § 5 to implement the protections of the amendment would allow Congress to define who counts as born in the United States. A law defining those who have been partially delivered as born, and therefore persons under the Fourteenth Amendment, would therefore be within Congressional power. Further, Congressional findings that federal legislation was necessary to ensure due process and equal protection for this class of persons, and legislation to bar PBA, would be an exercise of their proper power.
Nick
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November 5, 2009, 7:16 pmBrett Bellmore says:
For the legal realist, precedent is right by definition, until it’s overturned, after which the new precedent is right by definition. Legal realism has no concept of the Supreme court actually getting something “wrong”.
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November 5, 2009, 7:43 pmaf says:
This is silly. Every mandate is a prohibition against not doing what is mandated, and every prohibition is a mandate to not do what is prohibited. What matters for commerce clause purposes is the type of activity mandated or prohibited. Otherwise you could just as easily argue that federal laws against carrying guns on airplanes violate the commerce clause, because they require people NOT to carry guns on airplanes, and how can NOT carrying a gun be commerce.
I agree — if you ignore Roe v. Wade, Congress has the power to ban abortion.
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November 5, 2009, 8:08 pmLeo Marvin says:
Cut him a little slack. Considering how fast his head must be spinning over the Yankees, I’m impressed he can write at all.
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November 5, 2009, 8:20 pmOff Kilter says:
“Otherwise you could just as easily argue that federal laws against carrying guns on airplanes violate the commerce clause, because they require people NOT to carry guns on airplanes, and how can NOT carrying a gun be commerce.”
IANAL. Are you telling me the justification for gun bans on airlines is the commerce clause, not some police power? Even on intrastate flights? Amazing. What contortions of language your guys put up with...
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November 5, 2009, 8:29 pmpmorem says:
David Welker wrote:
I left California over taxes. I voted with my feet.
Numerous waves have immigrated to this land, voting with their feet.
Where the hell am I supposed to run to now?
I will have nowhere to run. That means I have to stand and fight.
I might get over it when I’m dead. If I don’t, I’ll be sure to spend some time with you.
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November 5, 2009, 8:40 pmRob C says:
So I was just thinking about the individual mandate and the insurance boards and what not that are in the bill and I was wondering this: If congress exempts itself from the bill could an Equal Protection challenge be launched against it? (I realize that they exempt themselves from a lot of the bills they sign so maybe this is moot, just curious.)
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November 5, 2009, 8:45 pmBC says:
That’s a nice to-MAY-to/to-MAH-to argument that comes nowhere close to demonstrating that NOT purchasing some commodity (here, health insurance) is actually a commercial activity.
I don’t deny that courts will probably indulge in the same handwaving, as they have done ever since Wickard. But I see no reason to participate in the ongoing “the last half-century of Commerce Clause jurisprudence is intellectually respectable” charade.
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November 5, 2009, 8:47 pmaf says:
That’s a nice to-MAY-to/to-MAH-to argument that comes nowhere close to demonstrating that NOT purchasing some commodity (here, health insurance) is actually a commercial activity.
If we’re ignoring doctrine and looking at this from first principles, the question isn’t whether not purchasing something is a commercial activity. The question is whether health care reform is either (1) taxing to provide for the general welfare; (2) regulating interstate commerce, or (3) necessary and proper to carry out one of those things.
Providing enough subsidies so that everyone can afford health insurance is clearly taxing for the general welfare. Prohibiting health insurance companies from considering preexisting conditions is clearly regulating commerce. And an individual mandate is clearly necessary to carry out those things, because if insurance companies can’t consider preexisting conditions and people are not required to buy health insurance, rates will be unaffordable.
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November 5, 2009, 9:12 pmR. Richard Schweitzer says:
There is a small glitch in the “Commerce Clause” authority for this mandate.
Congress is authorized to regulate commerce among the several states.
That has been “expanded” to mean regulate activity “affecting” such commerce.
But, has it been “expanded” to cover inactivity “affecting” commerce; to require involuntary participation in particular commerce, or to create commercial activities of any kind Congress may decree?
If so, are there any limits to what individuals may be required to do so as to have an “affect” on commerce?
Are we looking at a question of moving the limits on “freedom to” and applying them to “freedom from” as well?
If so, the time has come for a Constitutional Convention, pronto.
Then next is the enforcement via taxation.
Will this be a tax by enumeration, proportionate, upon income, an excise levy (on what good or service), a levy on “not doing?”
Ilya dismays me here. As does Oren, who has not yet heard the word from MA insurers about upcoming premium hikes. Nothing like the Ivory Cloister.
R. Richard Schweitzer
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November 5, 2009, 9:16 pmIlya Somin says:
If voting with your feet is so important, how many times have you done it yourself? You need to get over it. This is a minor point.
I’ve done it at least three times in my life. But even if I hadn’t, so what? There are many important rights that I have never exercised.
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November 5, 2009, 9:23 pmDangerMouse says:
If the Federal Government has the power to tell you that you must spend your money on X, when X is not a payment for a tax, then there is no way in hell that this is a “free” country anymore. What next? That we all must by GM cars to bail out the unions?
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November 5, 2009, 9:32 pmA. Zarkov says:
Somin writes:
“I agree that the mandate would probably be upheld under current Supreme Court precedent.”
I take this to mean that you agree with the likes of Chemerinsky? I’m sorry to hear that because every argument I’ve heard so far relies on a Supreme Court decision where someone did something. Filburn grew wheat. Raich grew cannabis. Are we to believe that to merely exist is to engage in interstate commerce? That drains all meaning from the concept. Lopez did something too: he brought a gun onto school grounds yet SCOTUS held Congress did not have the power to regulate that kind of activity. Are we to believe that Congress can regulate the non-existence of activity? Come on now, close the books and starting thinking. While Congress can regulate interstate commerce it has no power I can see in the Constitution to require it. There is a big difference between regulating something and requiring it. No?
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November 5, 2009, 9:39 pmaf says:
There is a big difference between regulating something and requiring it. No?
What do you think of the requirement that air travelers show government-issued photo IDs?
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November 5, 2009, 9:49 pmA. Zarkov says:
Showing an ID is not an economic transaction. If you don’t want to show an ID then don’t fly. By entering the airport you agree to abide by the regulations which include showing an ID. I can’t make jokes either in an airport because I have agreed not to by entering the airport. All of the former involve an action on someone’s part unlike the mandate.
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November 5, 2009, 10:12 pmreadery says:
The ey difficulty with the argument is that a viable national health insurance plan can fit, in its entirety, into the taxation and spending clause of the Constitution alone, without having to address other clause. The Federal government’s powers to tax and spend are, as an original matter, far broader and far less restrained then is powers to regulate.
Congress has the enumerated original power to tax and spend to “provide for” the “general welfare of the United States.”
One may not like a national health insurance plan, but nobody can deny that it is a matter concerning the “general welfare”. It may not be a good welfare program, it may be a really lousy welfare program, but it is a welfare program. That’s all the Constitution requires.
Its wisdom and policy are therefore entirely Congress’ to decide.
In 1787 we agreed to a federal government powerful enough to enact broad national taxation-and-spending welfare programs. Congress may not have used the power in this manner before, maybe it ought not to have the power, but it does have it.
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November 5, 2009, 10:19 pmbyomtov says:
Will this be a tax by enumeration, proportionate, upon income, an excise levy (on what good or service), a levy on “not doing?”
How about a tax credit for doing, similar to lots of other credits in the tax code, past and present? If the government can give companies tax credits for investment, or R&D, why can’t it give individuals a tax credit for buying health insurance?
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November 5, 2009, 10:24 pmAnon says:
Then Obama will have to go back on his word and make it a tax.
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November 5, 2009, 10:24 pmSebastian Tombs says:
While I agree that the “individual mandate” is awful policy, and that it _should_ be unconstitutional, I’ve found the arguments that it _is_ unconvincing. Would not Congress have to power to enact a $2000 per person head tax? Would it not then have to power to grant a $2000 tax break to anyone who met certain conditions, such as purchasing health insurance? If so, how would this differ from an individual mandate with a fine for noncompliance?
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November 5, 2009, 10:28 pmSteve says:
If you think it’s unconstitutional for the government to make you buy into an insurance program, don’t you have to argue that Social Security is unconstitutional? Yet some folks are acting like it’s a slam dunk.
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November 5, 2009, 10:33 pmA. Zarkov says:
This is a possible route, but note it does not depend on the Commerce Clause. It would be a new tax on everyone. But not everyone pays income tax. I don’t think Obama and the Congress would support capitation. It would be their political doom.
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November 5, 2009, 10:43 pmA. Zarkov says:
The mandate is nothing like Social Security. You only have to pay FICA on earned income. One could live on investment income alone and never ever pay into SS. Many people covered by government pensions never paid a dime into SS. FICA is a tax on an activity (working) not your mere existence.
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November 5, 2009, 10:46 pmA. Zarkov says:
It could, but what about the people who pay no income tax which is about 45% of all people who file income tax returns?
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November 5, 2009, 10:49 pmreadery says:
Social security is an obvious example: its mandatory taxes and benefits apply only to wage earners and their employers. Does anyone seriously doubt that Congress could have chosen to limit its scope further and made its mandatory tax/mandatory benefit combination applicable only to wage earners and employers without private pensions?
Why in the world would there be any constitutional difference between such an approach and the one Congress chose?
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November 5, 2009, 10:49 pmaf says:
One could live on investment income alone and never ever pay into SS.
So it would be unconstitutional to impose SS taxes on investment income?
Many people covered by government pensions never paid a dime into SS. FICA is a tax on an activity (working) not your mere existence.
The vast majority of people who income is low enough not to pay FICA taxes will be covered by Medicaid and not subject to the individual mandate.
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November 5, 2009, 10:51 pmA. Zarkov says:
The “general welfare” has nothing to do with the modern concept of welfare. “Providing for the general welfare” is not in itself an enumerated power. If it was as general as you think, then the whole concept of enumerated powers wouldn’t make much sense because then Congress could do anything.
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November 5, 2009, 10:53 pmA. Zarkov says:
I don’t know if it would be constitutional to levy FICA on passive income. If we did, it would mean all retired people would be paying FICA on their pensions.
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November 5, 2009, 10:59 pmSteve says:
The mandate is nothing like Social Security. You only have to pay FICA on earned income. One could live on investment income alone and never ever pay into SS.
Ohhhhhhhh. So it’s constitutional if you have a mandate on every single American who works... but further than that ye shall not drag me! Forgive me if I can’t find the part of the Constitution straightaway that draws this distinction.
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November 5, 2009, 11:03 pmaf says:
Why in the world would there be any constitutional difference between such an approach and the one Congress chose?
To play the devil’s advocate — I agree with your ultimate conclusion — the difference is that the Constitution permits Congress to tax for any reason, but not to regulate for any reason. So if a mandate is a regulation rather than a tax, the constitutional standard is different — the regulation has to be of interstate commerce.
For the reasons explained above, I believe that a mandate is necessary and proper for the regulation of the national health care industry, and therefore of interstate commerce.
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November 5, 2009, 11:12 pmA. Zarkov says:
The income tax and the social security tax are taxes on the activity of work. If you don’t work you don’t pay any tax. As I understand it, you won’t be able to escape the mandate.
The distinction you seek in the Constitution is found in the 16th Amendment. The 16th does not cover the mandate because there is no income.
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November 5, 2009, 11:23 pmA. Zarkov says:
I don’t think that’s correct. Congress can levy duties and excise taxes, and by the 16th Amendment income taxes. That is the extent of its enumerated power to tax. I think it would require a Constitutional Amendment to have a national sales tax for instance.
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November 5, 2009, 11:32 pmaf says:
Arguably there are limits on the form of federal taxes. But there are essentially no limits on what Congress can use tax receipts for.
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November 5, 2009, 11:36 pmOren says:
Zarkov, that’s no longer true, at least in the context of airport searches — cf United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) with United States v. Davis, 482 F.2d 893 (9th Cir.1973). The former considers the airport search a matter of administrative necessity, the latter a search by (implied) consent.
I asked Orin about his opinion on the change in rationale in his thread on hijacking and screening but he didn’t care to share :-( .
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November 5, 2009, 11:37 pmA. Zarkov says:
Let’s be clear. The Democrats don’t want to levy any kind of tax to pay for the national health insurance plan. If they wanted to do that all they have to do is raise the income tax. They want to perform some kind of financial alchemy so it looks like the uninsured get insured without it costing anyone anything. The mandate is not a tax; it’s a forced purchase. They need this to prevent people from buying insurance after they get sick because Congress also wants medical insurance to cover pre-existing conditions. That’s why the defenders go for the commerce clause. They have to stay away from new taxes for political reasons. They want to say we are just forcing you to buy insurance for your own good, not to tax you.
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November 5, 2009, 11:39 pmDavid Welker says:
The point is that this is a highly impractical means of holding government accountable. This does, of course, allow people to choose their governance to some degree. And to some degree it has always been important for some people in some contexts. But I think you overemphasize the point.
If someone was against slavery before the Civil War, the fact that they could migrate to non-slave holding states was an advantage in some sense that one who had strong feelings about slavery at least wouldn’t have to see it practiced on a day to day basis. But it would also be a disadvantage, as it would tend to enable this great evil to persist within the South and hinder change within the South through the democratic process. Also, some amount of diversity among the regions of the United States is acceptable and even desirable. However, this is still one nation. It matters to me how citizens in Tennessee or Utah are treated by their governments, even though I am not a resident of those states. So, voting with your feet is definitely not an unqualified good.
Of course, the way I phrased the point was not very good. It is true that, for example, the 2nd Amendment is the source an important individual right, even if many individuals choose not to exercise that right. I think the fact that you have actually moved three times in part due to political disagreement makes you very unusual.
I still think you overemphasize voting with your feet in modern times, given its impracticality in many situations. I wonder when the last time you mentioned federalism without mentioning this point? Such behavior was even more impractical at the founding, when travel was both much more expensive and dangerous. I don’t think so-called voting with your feet is a dominant idea that the Founders had in mind when they devised federalism and the point obviously has no textual support within the Constitution. To that extent, when you are making an originalist argument, I do not think that the possibility of voting with your feet should be given much if any weight when discussing the powers of the federal government versus the states. Of course, if you want to switch to a living constitutionalist mode of analysis, the point would be somewhat more relevant.
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November 5, 2009, 11:45 pmA. Zarkov says:
Ok thank you for the information. Of course this is tangential to the thread because none of us really has to use airplanes. You can avoid the search by not going to the airport. You can’t avoid the mandate. Moreover showing an ID is not any kind of economic transaction that I can see. Or course we pay airport fees, but that’s for using the airport to travel.
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November 5, 2009, 11:45 pmDavid Welker says:
A. Zarkov,
Read Hylton v. United States, 3 U.S. 171 (1796).
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November 6, 2009, 12:02 amfreshlegacy says:
I think Zarkov has summed up the political issue, but I still think there might be a substantive issue I haven’t seen addressed.
A mandate to buy insurance is a forced economic transaction involving private parties (consumer and insurance company). A tax is a forced payment of money to the government. How does one reasonably recast the mandate into a tax when a tax is never something paid to a private entity?
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November 6, 2009, 12:06 amA. Zarkov says:
Well that’s a pretty good case for this discussion and does seem to indicate that Congress can levy every kind of uniform tax. I will need to read the whole thing carefully and I’m too tired to do that now. Thanks very much.
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November 6, 2009, 12:25 amMCM says:
sweden
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November 6, 2009, 1:24 amCornellian says:
I agree that the mandate would probably be upheld under current Supreme Court precedent. However, like many other defenders of the constitutionality of the individual mandate, Schapiro doesn’t even consider the possibility that that precedent is wrong.
These days it’s hard to imagine anything beyond the reach of federal jurisdiction via the Commerce Clause and there is very strong bipartisan support for that position, from the Democrats all the time and from the Republicans whenever they’re in power in Washington. Perhaps Professor Schapiro doesn’t want to waste time crying in the wilderness over a Commerce Clause interpretation that will never, ever return to favor.
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November 6, 2009, 1:34 amCornellian says:
Numerous waves have immigrated to this land, voting with their feet.
Where the hell am I supposed to run to now?
Waves don’t have feet.
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November 6, 2009, 1:34 amSteve says:
The distinction you seek in the Constitution is found in the 16th Amendment. The 16th does not cover the mandate because there is no income.
But you just said you didn’t know if it would be constitutional to tax passive income. Now you want to rely on the 16th amendment, which makes no distinction between active and passive income. You’re going to have to come up with a better constitutional theory than “I don’t like mandates, so they must be unconstitutional.”
A tax is a forced payment of money to the government. How does one reasonably recast the mandate into a tax when a tax is never something paid to a private entity?
One of the beauties of the public option is that it disposes of this “you’re forcing me to pay a private company” argument. But even in the simple case where, say, a town uses privatized garbage collection services, you’re being forced to pay that private company with your taxes. The fact that the government collects the tax and effectively acts as an intermediary doesn’t change the economic reality.
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November 6, 2009, 1:41 amreadery says:
Congress can’t do virtually anything. But it can tax and spend money on virtually anything. Spending money is one of the limited enumerated things Congress can do.
There’s a huge difference between spending and regulating. Regulating means telling other people what they can do and putting them in jail if they don’t do it. Spending money doesn’t involve that. Taxation is a broader power, because it permits Congress to enact a targeted ‘tax’ that behaves in a way very similarly to a fine for things it has no power to exact a fine for directly. But nonetheless Congress does have it. The early Supreme Court recognized the breadth of the taxation power: “The power to tax is the power to destroy.” True today as then.
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November 6, 2009, 1:44 amSammy Finkelman says:
A Zarkov:
AZ> I don’t think Obama and the Congress would support capitation. It would be their political doom.
Like it doomed Margaret Thatcher in 1990. In her case the capitation tax was to replace the property tax. It was first implemented in Scotland and Wales and then it wss going to take effect in england — when he Conservative party revolted and suddenly threw her out of office, because she would not back down.
Capitation would indeed be their political doom.
And that’s why it is postponed till 2013. A capitation tax is exactly what they are doing. It has subsidies to avoid making it impossible,
(and they had some exemptions for low income in the United Kingdom.)
The Senate wants much bigger subsidies than the House — because senate elections as a rule are much more competitive.
There are lots of problems with the mathematics. Giving subsidies and also not increasing the deficit and also not increasing taxes too much.
Medical costs need to be pushed down. But the only way to safely do that is for it to be consumer driven. It’s a real problem designing anything that doesn’t have obvious serious flaws but the democrats now aren’t even trying.
@freshlagacy:
F> A mandate to buy insurance is a forced economic transaction involving private parties (consumer and insurance company). A tax is a forced payment of money to the government. How does one reasonably recast the mandate into a tax when a tax is never something paid to a private entity?
The payment to the private entity isn’t the tax. The penalty for not having it is the tax. Having insurance avoids the tax. To enable people to actually buy it, some people are subsidized to some degree, (but almost certainly not enough) with all the problems that creates in terms of accuracy in filling out applications and the ability to react in real time and high marginal tax rates. Not to mention that it will increase wasteful medical spending and maybe not make insurance cheaper at all. while at the same time crowding doctor’s offices. Lots of people will be on Medicaid and thus subject to clawbacks if they receive a windfall.
If someone has a job, but does not get insurance, the employer is taxed the value of the subsidy. Unemployed people are hit really hard, since they may now be forced to buy insurance. Or pay a tax. If the tax is not too high, many people will prefer the tax.
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November 6, 2009, 3:11 amA. Zarkov says:
Why can’t Congress regulate abortion under the commerce clause? There is certainly commerce involved: the patient pays a doctor for a service. The commerce might even be interstate as when someone travels across state lines for a medical service. Certainly abortion is more of an interstate activity than growing wheat for one’s own consumption. The modern answer of course is that there is a right to privacy in the constitution. But why would this so-called privacy right, that’s nowhere to be found in the Constitution, trump an enumerated power that is in the Constitution? Then again is an abortion really private; especially if it were covered by the federal health insurance where the doctor can second guessed by a federal bureaucrat? Now it’s no longer a matter between a woman and her doctor.
If the mandate should be upheld as constitutional by the Supreme Court, then a future anti-abortion Congress might just decide it can regulate abortion under its new found powers under the commerce clause.
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November 6, 2009, 6:52 amanon says:
As this bill boils down we see that government power will be the legacy of this bill. It won’t accomplish any of the presidents objectives of creating affordable health care or significantly expanding coverage or deploying the entire plan without raising taxes. If the president is a man of his word he will veto the bill.
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November 6, 2009, 7:04 amA. Zarkov says:
That’s hardly my argument. The whole issue of taxation is tangential because the Democrats don’t want increase taxes to fund their health plan. As I said before, they could just raise the income tax to pay for it. My objection to the mandate has to do with the power of Congress to force someone to buy something just because they exist.
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November 6, 2009, 7:05 amRicardo says:
““Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.” — Antonin Scalia in the Raich decision
This seems to settle the matter as far as the law is concerned. We can argue semantics over whether failing to buy health insurance is a “noneconomic local activity” or not but the broader principle is there. Congress seems to have the authority to regulate the health insurance industry under the interstate commerce clause: ERISA, HIPAA and COBRA are three examples of federal regulations concerning employer-provided health insurance. None of these, as far as I know, require the employer or insurance provider to have some kind of interstate presence.
Given that Congress has the power to regulate health insurance with the policy objective of ensuring that as many people as possible are covered by health insurance, an individual mandate fits within that regulatory framework. The court has never addressed the activity/inactivity distinction but I doubt it would find it all that convincing.
Note that in other contexts, individuals can be mandated to do things under other powers of the federal government. Witnesses can be compelled to testify and provide physical evidence to federal courts, any adult citizen can be summoned for jury duty in federal court, and all men between 18–25 have to register for Selective Service and are liable to be drafted during wartime. The justification for all these is that these mandates are necessary for the government to fully exercise its powers. Now, you can go ahead and argue that HIPAA, COBRA, ERISA and a whole bunch of other regulations ought to be ruled unconstitutional also. But if you don’t argue that, the logic for the constitutionality of the individual mandate comes from the existing regulatory framework which you’ve already conceded is constitutional.
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November 6, 2009, 7:23 amA. Zarkov says:
The individual mandate does not fit within a “regulatory framework.” What activity is being regulated? The power to regulate commerce does not imply to the power to require commerce. Someone who has done nothing and does not wish to participate in the commerce of insurance buying cannot be forced to do so under the commerce clause without draining all meaning from that clause. We would we have such an enumerated power if everything is interstate commerce– even doing nothing?
As for those other compelled activities, they are not commerce. Testifying in court or being drafted have nothing to do with the commerce clause. If you think that the power of Congress to draft people or make them register for the selective service also gives Congress the power to force people to buy medical insurance then we can debate that. But I don’t think you want to go there.
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November 6, 2009, 8:03 amInstapundit » Blog Archive » ILYA SOMIN on health care mandates and federalism…. says:
[...] ILYA SOMIN on health care mandates and federalism. [...]
Ricardo says:
Yes, it does. As I already pointed out, Congress already extensively regulates the health insurance industry with the stated goal of ensuring that as many people as possible are covered by health insurance. Basic economic theory suggests that if insurance is voluntary and if individuals have more information about their own risk factors or behaviors than insurers, this leads to adverse selection and moral hazard. The economic consequence is that in a competitive market insurance is more expensive when it is voluntary than when it is mandatory — we arrive at a “separating” rather than “pooling” equilibrium. All this is textbook economics. And it provides the economic justification for mandatory insurance. As for the legal justification:
That is your supposition. It is not supported by the law or by any precedent. 99.99% of all the laws Congress passes prohibit rather than require activity of someone: not surprisingly, all the Commerce Clause cases that have come before the Supreme Court have involved cases where there is some kind of activity that is prohibited. But focusing on this ignores the logic of these decisions. None of these decisions depended on the idea that someone was engaging in an activity. They were based on the idea that a person’s decisions impacted interstate commerce in a substantial manner [according to Congress, anyway]. Under the law, all that is needed. And as I pointed out, the decision to not purchase health insurance has a substantial impact on interstate commerce through higher insurance premiums among other negative consequences.
That’s my reading anyway. I realize no one is going to convince you that Congress can regulate decisions rather than merely activities but I think that’s the only way to make sense of these decisions. Local, noneconomic activities can be regulated, according to Scalia, if they are “necessary” or have a substantial impact on interstate commerce. Decisions that do not qualify as “activities” can have every bit an impact on interstate commerce. In the case of health insurance, the impact on interstate commerce is huge and arguably greater than in many of the other cases that have come before the court.
Of course, that is not what I said. I said the power of Congress to mandate certain activities is well-established if it is necessary to carry out one of Congress’ powers. One of Congress’ powers — if you accept modern Commerce Clause jurisprudence — is to regulate the health insurance industry in a manner that leads to more people being covered by health insurance at a price they can afford. If mandating health insurance helps accomplish that goal, it is neither a radical departure from the traditions of the U.S. nor is it unconstitutional since the mandate is arguably “a necessary part of a more general regulation of interstate commerce” in the words of Scalia.
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November 6, 2009, 8:34 amSG says:
David Welker:
I think you’re being too literal in your interpretation of “voting with your feet”. While it’s likely true that people migrating from state to state directly due to political concerns may be rare, it’s very common for people to move from state to state to seek economic opportunity and that differential in economic opportunity is often strongly influenced by policy differences between the state. See the recent thread about Texas & California.
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November 6, 2009, 8:35 amSG says:
If mandating health insurance helps accomplish that goal, it is neither a radical departure from the traditions of the U.S. nor is it unconstitutional since the mandate is arguably “a necessary part of a more general regulation of interstate commerce” in the words of Scalia.
I agree the goal is not a radical departure from tradition, but the means of accomplishing it are. Can you point to any precedent for the government (at any level: federal, state or municipal) requiring everyone to purchase a product or service from a private party? I honestly can’t think of anything even remotely similar.
Which doesn’t mean it won’t be upheld by the SC — only that it strikes me as something without precedent.
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November 6, 2009, 8:43 ambyomtov says:
It could, but what about the people who pay no income tax which is about 45% of all people who file income tax returns?
Make the credit refundable.
I don’t know if it would be constitutional to levy FICA on passive income.
Why wouldn’t it be?
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November 6, 2009, 9:29 amShelbyC says:
Hell, we can even argue over whether or not it’s an “activity”
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November 6, 2009, 9:51 amMark Field says:
Sure: drivers must purchase minimum insurance.
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November 6, 2009, 9:54 amA. Zarkov says:
You are trying to create a theory by substituting “decisions” for “activities.” But how would you square that with Lopez? Lopez obviously decided to bring a gun to school and acted on the decision. Yet the Supreme Court ruled that Congress did not have the power to regulate that activity or decision under the commerce clause. Lopez tells us that the reach of the Commerce Clause is not infinite. You are trying to make it infinite through semantics. You present a perfect example of government that operates under the theory that the ends justifies the means.
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November 6, 2009, 9:56 amA. Zarkov says:
Actually one can post a bond in lieu of buying liability insurance. But mandatory auto insurance still depends on an activity– registering a car and operating it on pubic roads. If you drive your car exclusively on your own property you don’t need to do anything. Where on the local or state level do you have to purchase something just because you exist?
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November 6, 2009, 10:01 amShelbyC says:
The commerce clause undoubtably gives Congress the power to regulate prostitution, correct?
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November 6, 2009, 10:05 ambyomtov says:
Where on the local or state level do you have to purchase something just because you exist?
Massachusetts.
Also, corporations are required by the federal government to expand their R&D activities. They face a tax penalty for failing to do so.
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November 6, 2009, 10:07 amSeamus says:
Regulation of the insurance industry is one thing. Regulation of YOU to require you to become a customer of the insurance industry is quite another. Ever since 1887, the federal government has regulated railroads, but I think it would be laughable if someone suggested that Congress would pass a law requiring everyone to take at least one 100-mile trip on Amtrak each year. (Sure, everyone gets taxed to support Amtrak, but that’s not the same thing as a mandate to patronize Amtrak, which is the analog with what’s being proposed regarding health insurance.)
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November 6, 2009, 10:20 amSeamus says:
Absolutely. Those hookers use condoms, which move in interstate commerce. Or else they *don’t* use condoms, and that non-use affects the interstate market in condoms. So either way, federal regulation is fine.
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November 6, 2009, 10:22 amSeamus says:
In fact, every individual in the country should be *required* to buy 100 condoms a year, in order to support the condom industry. It will create jobs, and help keep STDs down. AIDS is a national problem. How could any law aimed at fighting it *not* be within the power of Congress? (If you suggest that there are some people who don’t get laid as much as 100 times a year, and that the law would be excessive as applied to them, I respond that this is no different from requiring young, healthy people to buy health insurance, or requiring people to buy insurance with a lower deductible than on the policy they might otherwise want to buy.)
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November 6, 2009, 10:26 amA. Zarkov says:
What does Massachusetts force you to buy? Health insurance? Being a corporation is different that just being a person. Corporations exist to engage in some kind of business, profit making or not. I doubt whether every kind of corporation is forced to pay a penalty for not expanding their R/D. I think you mean they get a credit for expanding R/D, which is different than getting fined for not doing it.
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November 6, 2009, 10:29 amA. Zarkov says:
Many of the arguments presented here show the sorry state of Commerce Clause jurisprudence. Almost every argument supporting the mandate flies in the face of the whole concept of a federal government of enumerated powers. If Congress can force me to buy something just because I exist, then they can do virtually anything except outlaw abortions and sodomy I guess.
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November 6, 2009, 10:36 amAllan Walstad says:
A. Zharkov: I appreciate your attempt to find wiggle room for the supremes to draw a line against patently unconstitutional federal activity without overturning decades of previous unconstitutional activity. Good luck with that. In my opinion, if it were Comstitutional for the feds to impose a universal socialized retirement plan, then it would be Constitutional for them to do damn near anything they please. Only the hoped-for common sense of a majority of justices stands between us and virtually unlimited federal imposition.
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November 6, 2009, 10:50 amShelbyC says:
That’s different. Outlawing abortions involves Congress meddeling in individuals’ personal medical business.
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November 6, 2009, 10:59 amJoe says:
I agree — if you ignore Roe v. Wade, Congress has the power to ban abortion.
I can ignore Roe too and still think banning a health procedure necessary to protect my health (an argument Eugene Volokh has cited, iirc) is not within Congress’ power. Or, am I supposed to sacrifice myself for others here?
Anyway, some of these arguments are not very realistic in the real world. For instance, there is this theory that you might not be taxed via SS if you lived on investment income or if you don’t drive, you won’t need car insurance. In the real world, most people don’t live on investment income and they need to drive (or some member of their household does) to live comfortably.
Likewise, I think AF summarizes nicely why this is constitutional. I don’t think — particularly under modern day constitutional law (hate it or not, it’s not going anywhere) — the unconstitutional arguments are really credible. The stuff about being forced to buy stuff particularly.
[Ironically, this might in theory justify a broad public option, but anyway, what we are really talking about here is a tax. You are not forced to go to the doctors provided by the insurance companies. You just need to pay the fees. The rhetoric therefore at times comes off as lame.]
The government forces you to buy stuff from private sources in many cases. This goes back rather far — the first militia act, e.g., required members to bring their own weapons. Most people didn’t smith their own guns. They bought them from private sources.
You also are required to care for your children, including providing minimum education and food/health services. Even if you grow your own food and home school (and, not realistic for many), you are going to have to buy something to do this. Some might not like forced immunization, but that was upheld back in the early 20th Century during the Lochner Era.
I’d say stick with the pragmatic complaints. I would say maybe federalism was a sound argument, but then we are dealing with a national health care system here. That ship has sailed too.
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November 6, 2009, 10:59 amPubliusFL says:
Congress has an enumerated power to provide for arming the militia.
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November 6, 2009, 11:32 amA. Zarkov says:
The issue at hand is whether the mandate is constitutional, and in particular under the Commerce Clause. Now you want to go beyond legal issues and introduce practical considerations. Ok if you want to do that, then I submit the the mandate is completely unnecessary. If it’s so important to insure the 47 million uninsured (is this number even accurate?) including some 17 million illegal aliens, then Congress can simply raise the income tax to provide the uninsured with medical care just as it provides food stamps and other benefits. The whole reason for the mandate is to create the illusion that the new medical plan won’t cost anything. In that way the Democrats can say say they passed a bill that does not raise taxes. The mandate is simply a red herring besides being unconstitutional.
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November 6, 2009, 11:52 amMark Field says:
That’s not the point. The question was asked whether Congress (or the states) has ever forced individuals to buy something. We’re not concerned about whether it did so rightfully at this point, just whether it did so at all. Joe has given several good examples.
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November 6, 2009, 11:55 amRich Rostrom says:
I don’t see how “No Child Left Behind” can be considered a “Republican” bill when it was co-authored by Sen. Edward Kennedy, and voted for by 197 of 210 House Democrats, and by 48 of 51 Democrat Senators. (It was also co-authored by Sen. Judd Gregg and voted for by nearly all Republicans.)
Also, the “teeth” in NCLB are based (AIUI) on Federal funding. No state is required to participate under threat of any penalty other than loss of Federal funding. That to me is Constitutional; though the authority to spend Federal funds on local education may lack.
The “mandate” in “Obamacare” is a Federal imposition on an indivdual regardless of that individual’s prior or on-going acceptance of any Federal benefit. Indeed, the point of the mandate is to compel participation among individuals who have chosen not to participate and may never do so, if they don’t get sick.
Providing health care to the uninsured as a class requires has to be paid for; either by appropriations from general tax revenue and ad hoc cross-subsidies by providers; by post-care collection from the individuals receiving it, which is difficult and often impossible; or by making all otherwise uninsured persons pay in advance of any of them receiving care.
The “mandate” is the last option, and it certainly looks like an unconstitutional tax to me.
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November 6, 2009, 12:03 pmHarry Schell says:
It would be nice if one wrong would not promote or excuse another in this healthcare mandate. Indeed, it wouldn’t bother me a bit to see No Child repealed with other mistakes of that nature by Bush.
The Marxists have the bit between their teeth now, and see time running out. Boxer’s handling of Crap and Tax in committee is a desperate ploy that would have her barking mad crazy if it was done to her.
Actually, that’s a pleasing thought, to see her that frustrated.
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November 6, 2009, 12:43 pmDangerMouse says:
If Congress can force me to buy something just because I exist, then they can do virtually anything except outlaw abortions and sodomy I guess.
Precisely. Next year: the buy GM to bail out the unions mandate.
People who think that this is constitutional are nuts. I’m sorry, but it’s plain nuts. This is basically enslavement. Doing NOTHING but existing requires you to pay a 3rd party? That’s nuts. I can understand taxes, I can understand that you can be taxed on basically any income or activity, but how can you be required to pay 3rd parties for doing nothing but merely existing?
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November 6, 2009, 12:48 pmraoul says:
As a liberal I do not see individual mandates to private companies as constitutional; and yes, the precedents, like granting 14th amendment protection to corporations, are wrong. This is one area where I wish textualists would spend more time. And Ilya, this is the second time I agree with you in a month, I do not see this happening again for a while.
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November 6, 2009, 12:50 pmbiff says:
Companies and people do this all the time. Compare NJ with NC, CA with NV, etc. This is not a minor point.
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November 6, 2009, 12:54 pmFat Man says:
1. A sales tax is an excise tax, and as such, is within Congresses General power under Art. I sec. 8 1st.
2. Capitations are not forbidden by Art I Sec. 9, but they must be allocated in Proportion to the Census. Since slaves counted as 3/5ths of a person for the Census, they would not have be taxed at full rate.
3. The “necessary and proper clause” at the end of A.I-S.8. is subject to words of limitation: “... for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof” It is not a free ranging grant of power.
4. Wickard was an act of political cowardice, Raisch was just plain overreaching. Extending them to sanction an individual mandate would be an act of lawlessness. You may argue for the extension without violating Rule 11, but the justices cannot grant it without violating their oaths of office, and losing whatever respect the public still holds them in.
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November 6, 2009, 12:58 pmDangerMouse says:
Anyone considering whether Congress can mandate the purchase of insurance should ask a similar question:
Could Congress require you to buy a GM car? Yes or no?
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November 6, 2009, 1:04 pmbyomtov says:
Zarkov,
What does Massachusetts force you to buy? Health insurance?
Yes.
I think you mean they get a credit for expanding R/D, which is different than getting fined for not doing it.
No. There’s no difference whatsoever except for the choice of terminology.
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November 6, 2009, 1:06 pmOren says:
(1) Your taxes can go to support Amtrak.
(2) You can be taxed an extra $100.
(3) You can be given a $100 tax credit if you take a trip on Amtrak.
These sounds like exactly the same thing.
You seem to confuse a tax credit for doing something with a hard requirement to do so.
The power to levy an income tax necessarily includes the power to increase it across the board. It also includes the power to selectively not levy it.
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November 6, 2009, 1:28 pmDangerMouse says:
Oren,
Does Congress have the power to require you to buy a GM car?
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November 6, 2009, 1:32 pmMCM says:
Yes, but one of the “foregoing powers” is to “provide for the general welfare”. That sounds like a pretty free ranging grant of power to me.
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November 6, 2009, 1:35 pmbyomtov says:
Does Congress have the power to require you to buy a GM car?
Does Congress have the power to give people who buy GM cars a tax credit?
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November 6, 2009, 1:43 pmDangerMouse says:
Provide for the general welfare, by forcing you to buy GM cars? Right, MCM? You’d be forced to buy a GM car. Even if you have one already, even if you can’t drive. Even if you’re 98 years old and have no use for one. Does Congress have the power to require everyone to buy GM cars?
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November 6, 2009, 1:44 pmDangerMouse says:
Does Congress have the power to give people who buy GM cars a tax credit?
For a person who does not work, and hence pays no taxes — what’s your answer? Are they still required to buy a GM car?
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November 6, 2009, 1:46 pmbyomtov says:
For a person who does not work, and hence pays no taxes — what’s your answer?
A refundable tax credit.
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November 6, 2009, 2:06 pmaf says:
For a person who does not work, and hence pays no taxes — what’s your answer? Are they still required to buy a GM car?
They don’t have to buy health insurance either.
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November 6, 2009, 2:08 pmPubliusFL says:
There can be a big difference for a corporation with no net taxable income. Lack of a credit just means the company stays at break-even. A fine means the company has been pushed into the read.
Not as much as you seem to think. At the most, it’s a power to spend on the general welfare. Madison argued that it was nothing more than an explanation of why Congress was granted the power to tax — that “provide for the common defense and general welfare” was essentially a shorthand summary of the enumerated powers following the power of taxation. This makes sense to me, as any other interpretation makes “provide for the common defense” senselessly redundant with the powers to raise and support armies, provide and maintain a navy, and provide for organizing, arming, and disciplining the militia.
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November 6, 2009, 2:14 pmDangerMouse says:
A refundable tax credit.
Nice dodge. Your answer is plainly: yes, people can be forced to buy GM cars even if they pay no taxes. But don’t worry, we’ll pay them back!
You are a totalitarian.
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November 6, 2009, 2:41 pmOren says:
They have the power to tax my income at any rate between 0% and 100%. They have the power to offer me a tax refund for engaging in various activities like donating to a church or buying a car.
The combination of these powers leads me to believe they can make me buy a car, although I doubt that an attempt to restrict it to GM would pass rational basis.
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November 6, 2009, 2:46 pmOren says:
You know, if you don’t like the 16th amendment, just say so and be done with it. I would have been great if it was written a little more carefully.
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November 6, 2009, 2:47 pmDangerMouse says:
They have the power to tax my income at any rate between 0% and 100%. They have the power to offer me a tax refund for engaging in various activities like donating to a church or buying a car.
The combination of these powers leads me to believe they can make me buy a car, although I doubt that an attempt to restrict it to GM would pass rational basis.
At what point does forcing someone, who pays no taxes, to buy a car become a violation of the 13th amendment? Again, we’re talking about someone who pays no taxes at all. Obviously, government can provide tax incentives for things.
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November 6, 2009, 2:55 pmMCM says:
Yes.
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November 6, 2009, 3:04 pmMCM says:
I guess at the moment you rewrite the dictionary so the word “slavery” or “servitude” means “forcing people to exchange money for goods” as opposed to “owning people as chattels and/or forcing them to work for you without giving them anything in return.”
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November 6, 2009, 3:08 pmR. Richard Schweitzer says:
Given the general level of learning indicated on the comments, it is surprising to see any interpretation of the “general welfare” phrase of Art 1; Sec 8 as implying an absolute power of Congress.
As Madison (who wrote the section) wrote many years ago, all the other words in the Constitution would not be needed if there were such power.
That said, the several states as “sovereign” in their relationships with their electorates have “Police Powers” which are generally classified as affecting Health, Safety (and again) General or Public Welfare. This can be differentiated from the Federal or central government being further removed form the local social interactions that determine political actions.
Regrettably, Massachusetts can probably make a case (however tenuous) that its mandates to act (like inoculation) fall within its police powers.
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November 6, 2009, 3:09 pmDangerMouse says:
MCM,
Where in the Constitution can a person be compelled to purchase a car? Under what clause? And if based on the power to tax, how does that apply to a person who pays no taxes? And if it’s the commerce clause, please find me a case that requires a person to buy something if otherwise he would do nothing and is just standing there breathing.
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November 6, 2009, 3:13 pmMCM says:
Not really seeing your point here. Your qualifications seem to be perfectly compatible with federally mandated universal health care.
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November 6, 2009, 3:14 pmDangerMouse says:
I guess at the moment you rewrite the dictionary so the word “slavery” or “servitude” means “forcing people to exchange money for goods” as opposed to “owning people as chattels and/or forcing them to work for you without giving them anything in return.”
A person who pays no taxes and is forced to buy a car is being forced to work without giving them anything in return. Even if you give them a tax credit later, they’re still being forced to work. People should have the freedom to not buy cars.
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November 6, 2009, 3:16 pmMCM says:
I guess you didn’t read the article that engendered this entire discussion. The existing case law supports allowing mandate for health insurance. Somin agrees, given the existing case law. There’s nothing special about health insurance; you could have a mandate for cars, too, then.
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November 6, 2009, 3:21 pmDangerMouse says:
I guess at the moment you rewrite the dictionary so the word “slavery” or “servitude” means “forcing people to exchange money for goods” as opposed to “owning people as chattels and/or forcing them to work for you without giving them anything in return.”
Kinda how like homosexual groups are re-writing the word “marriage”?
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November 6, 2009, 3:22 pmMCM says:
Except for the car... ???
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November 6, 2009, 3:22 pmMCM says:
This tactic is a clear sign you are winning this argument.
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November 6, 2009, 3:24 pmDangerMouse says:
I guess you didn’t read the article that engendered this entire discussion. The existing case law supports allowing mandate for health insurance. Somin agrees, given the existing case law. There’s nothing special about health insurance; you could have a mandate for cars, too, then.
Heh. You know, it’s things like this that make people hate lawyers. The Supreme Court’s decision was bunk, the analysis is bunk, Somin is right to note that if that is the state of the law then the law is bunk, and that this is not what the Founders signed on to when they created a government of limited powers. I’ll be perfectly honest that if you tell someone that he has to buy a car, even if he pays no taxes, or go to jail, there will be violence in this country on a massive scale.
I guess A. Zarkov was right: the government can tell you to do ANYTHING, unless it involves abortion or sodomy. Behind every lib is another Stalinist forcing people to do things that they don’t want to do. You guys really hate freedom, don’t you?
This tactic is a clear sign you are winning this argument.
My aim is not to convince you. It’s more about mockery than argument, at this point. You don’t have arguments with statists, you mock them for being statists.
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November 6, 2009, 3:39 pmMCM says:
your mom’s a statist
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November 6, 2009, 3:50 pmMCM says:
Am I doing it right?
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November 6, 2009, 3:54 pmDangerMouse says:
Are you denying it then? Wear it proudly, if that’s what you are. There’s no reason to take it as an insult. You’re the one suggesting that people can be forced to buy a car, after all. Just because people like me laugh at your folly doesn’t mean you should change your mind. After all, being a lib is all about never having to say sorry.
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November 6, 2009, 4:10 pmShelbyC says:
Or rewriting the word fag to refer to Harley riders?
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November 6, 2009, 4:36 pmloki13 says:
Shorter DangerMouse:
1. You’re a statist.
2. “My aim is not to convince you. It’s more about mockery than argument.”
3. Abortion. Sodomy. Abortion. Sodomy. Abortion. Sodomy.
4. When in doubt, point out teh gayz and their “marriage”. Because that’s just like health care.
Did I miss anything? Oh, yeah. Gratuitous insults of “libs”.
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November 6, 2009, 4:37 pmPubliusFL says:
I guess I’m not seeing your point either. My qualifications pointed out that in my view, Madison was right, and “provide for the . . . general welfare” is not an independent grant of power to Congress at all. If Madison and I are correct, anything Congress wants to spend its tax revenues on has to be justified under one of the other enumerated powers of Congress. How this amounts to a “free-ranging grant of power,” as you described it, is beyond me.
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November 6, 2009, 4:43 pmA. Zarkov says:
I don’t think so. Commerce clause jurisprudence, flawed as it is, does not support Congress having the power to require commerce. It’s true that Congress could create a constructive end run through its power to tax, but that’s not the Commerce Clause. But if you think so ok, give us the case, and point out where Congress has required someone to purchase something with no connection to any activity. I don’t think you will be able, but knows miracles happen.
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November 6, 2009, 4:59 pmPubliusFL says:
Wickard is about as close as you can come, probably. The gov’t didn’t say “you must buy grain,” but it did basically say “if you want to use more grain, you must buy it rather than growing it yourself.” I suppose if you analogize that to health care, perhaps the gov’t could say “if you want any health care, you must have health insurance.”
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November 6, 2009, 5:14 pmA. Zarkov says:
Why did the framers put in the Commerce Clause? They did it because they were worried that the states would erect tariff barriers against each other, and that would be bad for commerce and the economic development of the new nation. This is a far cry from saying that Congress can regulate (but not require) anything that might possibly affect interstate commerce no matter how small, and includes passive activities as well. It’s a little like Kelo, where property can be condemned for a supposed and even speculative public benefit as oppose to public use.
I don’t know why anyone who is not a socialist should be hostile to the idea of a federal government of enumerated powers. But this is evidently what we have. I have my own theories as to why there is such hostility to American institutions, but that’s for another thread.
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November 6, 2009, 5:16 pmA. Zarkov says:
Suppose you don’t want health care? There are people who don’t want anything to do with doctors such as Christian Scientists. Some people might prefer to pay out of pocket as they need medical services and want to part of any plan. I can tell you that the best doctors opt out of Medicare, some people want these doctors.
Let’s remember farmer Filburn did something– he grew wheat. The mandate applies to everyone regardless of what they do or don’t do. That’s a far cry from the circumstances in Wickard.
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November 6, 2009, 5:23 pmModa says:
But even Madison didn’t think Madison was correct. The gap between what he did as president and what he said before and after his tenure is enormous. We have basically ended up with Hamilton’s vision of the “general welfare” except we pretend it’s from the commerce clause. So which school of thought really prevailed there?
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November 6, 2009, 5:43 pmModa says:
On the contrary, it seems most cons think being a lib is about always having to say sorry.
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November 6, 2009, 5:46 pmbyomtov says:
Nice dodge. Your answer is plainly: yes, people can be forced to buy GM cars even if they pay no taxes. But don’t worry, we’ll pay them back!
You are a totalitarian.
Well, if you earn no income and pay no taxes there’s no penalty for not buying a GM car. I don’t see how the credit forces you to do anything. It’s an incentive, not coercion.
Totalitarian? I think you have no clue what that word means.
Still, I admit I don’t like GM cars either.
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November 6, 2009, 7:05 pmModa says:
I think it was pretty well-established that he has no idea what “slavery” means, either.
Probably just two words out of a very, very long list.
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November 6, 2009, 7:06 pmSG says:
The government forces you to buy stuff from private sources in many cases. This goes back rather far — the first militia act
You’re right — I had forgotten about this. I don’t agree with your other examples, but this one applies.
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November 6, 2009, 10:33 pmRicardo says:
Have you read the Lopez decision? I suspect you have not. The Supreme Court ruled that the law was unconstitutional because the government never specified a plausible theory under which possessing a gun in a school zone impacts interstate commerce in the legislation. In the Harrison decision, I believe the Supreme Court said that something has to have more than an “attenuated” impact on interstate commerce to fall under federal jurisdiction. As I argued above, the collective failure of many people to purchase health insurance likely has a substantial impact on the health insurance market and that market, by your own concession and by existing precedent, is subject to regulation under the commerce clause.
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November 6, 2009, 11:40 pmRicardo says:
I just caught this comment. You don’t seem particularly interesting in trying to understand the arguments of people who disagree with you. Your claim that it is completely unnecessary is unsubstantiated. The work of economists like Stiglitz, Arrow, Akerlof and many others points to the problem of adverse selection in health insurance markets. Now, you can disagree with that — the empirical evidence on health insurance and the existence or non-existence is thin. On the other hand, the fact that many of the uninsured are young (and therefore probably healthy) and the anecdotal problems of many relatively health people in attempting to buy health insurance on the private market point toward adverse selection as a problem.
Aside from the adverse selection consideration, why not just subsidize health care for the uninsured directly? Well, first, government already does this in one form or another to the tune of about $40 billion per year to help hospitals cover the cost of caring for the non-Medicaid indigent. Second, hospitals are notorious for overcharging people who are uninsured. I got to see this price difference first hand when I went to the hospital one time: the hospital wanted to charge me $1300 for a procedure but my insurance company settled it for $700. If government starts paying hospital bills directly, hospitals will be able to take this price discrimination to new and outrageous levels — who’s going to stop them? Patients will stop complaining about being overcharged because it isn’t their money. Do you want government to impose price controls for a significant chunk of the U.S. population who are uninsured? That’s a terribly slippery slope toward NHS or CanadaCare, now isn’t it? Sounds more socialist to me than mandatory health insurance.
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November 7, 2009, 12:05 amcubanbob says:
Ricardo hospitals and doctors who accept medicare already are subject to price controls, they have to accept the government reimbursement and can’t balance bill. As for the overcharging that is the result of being forced to lose money relative to insurance patients when accepting medicare and medicaid; the overcharge is an attempt to cover the medicare/medicaid underpayment.
Forced requirement of purchasing medical insurance is nothing more than a form of indentured servitude. Adverse selection is a stupid diversion. That can apply to any insurance, yet what other insurance is mandatory in of itself? If your home is fully paid for, no one is required to by home owners insurance. Yet those who own their homes outright can go naked and some do therefore under adverse selection they would make homeowners insurance more expensive than it might otherwise be. Same for disability. Same for auto insurance. Not everyone who lives in San Francisco or Manhattan owns a car
but under adverse selection those individuals who could drive but don’t cause insurance to be more expensive than it might otherwise be. Blending in policies that in theory can never result in a claim certainly would result in an overall lower risk rate and cost for those who do need the coverage.
What the communist democrats are playing with is fire, sooner or later there will be a backlash and when it comes it may well rollback a great deal of the FDR/LBJ and Obama entitlement state.
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November 7, 2009, 4:19 amJoe says:
Congress has an enumerated power to provide for arming the militia.
It also [as some argue here] has enumerated powers that can apply in the regulation of health care that is discussed here. Per this power, they can require you to buy things from private individuals.
Now you want to go beyond legal issues and introduce practical considerations.
I want to do both. Partially, this is a matter that they are interrelated. We live in the real world, so setting up cute hypos about how things might work in theory without keeping in mind how the real world works robs constitutional principles of real value for most of us. So, it is useful to remember that most people don’t live on investment income. etc.
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November 7, 2009, 9:32 amJoe says:
The whole reason for the mandate is to create the illusion that the new medical plan won’t cost anything.
The mandate deals with a free rider problem. It is clear that health care costs money. Budget experts suggest in the long run the whole program will save money. But, the mandate isn’t set forth to further some sort of “illusion” in this regard. If nothing else it is not the “whole” reason. Put aside if free rider or some other reasons are sound. It simply is not the “whole” reason.
This talk of “illusions” like it is some big conspiracy is troubling. People who have different views than you can be quite wrong. Trying to convince us they are sneaky tricksters is a bit harder.
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November 7, 2009, 9:43 amPubliusFL says:
Right. So Wickard probably doesn’t justify a flat “you must buy health insurance” requirement. But what I was saying is that it may justify a requirement like “if you want to purchase medical care, you must buy health insurance.” In other words, if you break your leg and want to let it heal on its own, fine. But if you want to see a doctor, you’re doing something (choosing to participate in the health care market), and must do so according to Congress’s regulatory scheme for the health care market: you have to buy insurance. I think Wickard was a horrible decision, but there you go.
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November 7, 2009, 11:12 ambyomtov says:
I can tell you that the best doctors opt out of Medicare
I believe all that means is that they do not accept Medicare’s payment schedule. They charge more, and bill patients directly. The patients in turn obtain reimbursement from Medicare at Medicare rates.
What the relevance of this is to the discussion, or how you know the best doctors do this, is another matter.
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November 7, 2009, 8:05 pmR. Richard Schweitzer says:
PubliusFL
I have been reading the proposed wordings, looking for exactly the thing you charge. However, so far, I have found no language that states one must be “insured” as a condition for seeking or receiving medical care.
Could you give a citation, please.
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November 7, 2009, 11:08 pmPubliusFL says:
Sure: “may justify a requirement like” describes a hypothetical that I came up with to get closer to the scenario of Wickard than the actual proposed bills.
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November 8, 2009, 10:04 am