One source of the impending constitutional challenge to the Obamacare mandate is that exceeds the enumerated powers granted to Congress under Article I, section 8. For example, that the people’s grant to power to Congress to regulate commerce among the several states does not include the power to compel people to engage in commerce. Jack Balkin, writing in the New England Journal of Medicine, has two responses: 1. Yes it does, because of Wickard and Raich, since people without insurance will eventually get sick and then buy health services; and allowing these people to buy health services outside the congressional system would undermine the congressional regulation. 2. The mandate is structured as a tax.
For the moment, let’s put aside the question of whether the Obamacare tax is an Article I tax, or a 16th Amendment income tax. Does Congress have the infinite power to control people’s behavior (such as by ordering them to engage in commercial transactions) via the tax power? I suggest not. When the Bill of Rights was being debated in front of Congress, the skeptical Rep. Theodore Sedgwick of Massachusetts asked if there should also be an enumeration that “declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper.” 1 Annals of Congress 759-60 (Aug. 15, 1789). Sedgewick’s point was that national laws about bedtimes and hat-wearing were self-evidently beyond the authority of Congress.
However, if the tax power means that Congress can order citizens to buy something they don’t want to buy, why does Congress not have the power to assess taxes on people who get too little sleep, or too much sleep, and thereby harm their own health and the public fisc? Or who wear hats so little that they increase their risk of skin cancer? Or who wear hats so often that they dangerously reduce their levels of vitamin D? In Sonzinsky v. United States (1937), the Supreme Court declared that it would not inquire into hidden regulatory motives that might have motivated a tax. But in Sonzinsky, the underlying activity (running a for-profit commercial business selling machine guns) was unquestionably within the scope of commercial activities that might be subject to an excise tax.
In contrast, not buying health insurance is not in its nature a commercial taxable activity. Neither is wearing a hat, or getting up when you please, or going to bed when you think it proper.
Sonzinsky is deferential to congressional motives, but it does nothing to support the claim that non-commercial activity may be taxed. Construing the tax power as less than infinite–as not encompassing the power to tax bedtimes or the decision not purchase a product–is strongly supported by the Ninth Amendment. This is so whether one agrees with Randy Barnett’s view of the Ninth Amendment (as an enforceable guarantee of natural rights) or with Kurt Lash’s (as a rule that enumerated powers should be narrowly construed so as not to violate natural rights, including the right of self-government in the states).
Finally, as Jack Balkin has ably argued, “Constitutional change occurs because Americans persuade each other about the best meaning of constitutional text and principle in their own time. These debates and political struggles help generate Americans’ investment in the Constitution as their Constitution and they create a platform for the possibility but not the certainty of its redemption in history.”
Americans today are not bound to meekly accept the most far-ranging assertions of congressional power based on large extrapolations from Supreme Court cases that themselves come from a short period (the late 1930s and early 1940s) when the Court was more supine and submissive to claims about centralized power than was any other Supreme Court before or after in our history. American citizens, in the political process and in their personal lives, will ultimately have the final word on the Constitution.
A large and permanent majority of the American people immediately accepted Social Security as a constitutional solution to poverty among the elderly and to massive unemployment (since Social Security would open up jobs by encouraging people to retire sooner). The American people have not accepted Obamacare as a constitutional solution to health insurance problems. If the American believe that there is a “crisis” about the high cost of health insurance, then the American people can also believe that the solution is not to punish people for refusing to buy overpriced insurance that they don’t want. The American people can reject the notion that our Constitution should be contorted and distorted to accommodate such a destructive and intrusive scheme.
It is eminently within the authority of We the People to act politically on our constitutional beliefs that the congressional power to regulate interstate commerce does not extend to forcing people to buy a product which Congress has forbidden to be sold across state lines; that the power to regulate interstate commerce is not the power to compel a person to participate in instrastate commerce; and the that power to levy income or excise taxes does not include the power to impose punishment in the form of punitive taxes on persons who choose not to buy something–or who choose whether to wear hats and when to sleep.
p.s. PENNumbra had a good debate on the topic last fall, featuring Jack Balkin vs. Lee Casey & David Rivkin.
Steve says:
Is it unconstitutional to tax everyone, and then to give a tax credit to everyone who wears hats?
March 22, 2010, 8:16 pmNunzio says:
As dubious as Wickard and Raich are, the individual mandate is three steps over the cliff from them.
I’m sort of astounded how people who rightfully decried the executive power assertions of the previous administrations have no problem letting Congress assert legislative authority over areas in which it has no power.
March 22, 2010, 8:17 pmSteve says:
As dubious as Wickard and Raich are, the individual mandate is three steps over the cliff from them.
Is single-payer unconstitutional? Is Medicare unconstitutional? I don’t recall ordering a war in Iraq.
March 22, 2010, 8:21 pmPreston Hill says:
In practice my federal constitutional experience was mostly in the area of land use regulation, takings, elections and various forms of local interference with First Amendment rights. And at that I was by no means a specialist. Yet I always wondered when there would be a SCOTUS case under the commerce clause, holding in practical effect that the Federal Government could do absolutely anything. This may be that case.
March 22, 2010, 8:22 pmNunzio says:
Steve,
We don’t have single payer. Medicare is not unconstitutional (and no one has to sign up for Medicare if they don’t want to). Congress authorized the Iraq War in November 2002.
March 22, 2010, 8:26 pmJ. Aldridge says:
March 22, 2010, 8:32 pmMark Field says:
If you’re really interested in a debate on these issues, you should not phrase your post in such a partisan fashion. All it does it convince your opponents that they don’t need to take you seriously.
That said, yes, the taxing power is infinite in the amount of money the government might take and was intended to be. Here’s Hamilton in Federalist 34:
“In pursuing this inquiry [whether the federal government should be limited in its sources of revenue], we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity.”
What I assume you’re really arguing is that the purpose of the tax is illegitimate. Frankly I think this issue has been argued to death at this point; Jack Balkin has made the argument and you may as well cite him on this as for any other point.
March 22, 2010, 8:33 pmAllan Walstad says:
If this means people can persuade each other that up is down, left is right, and red is green, and it thereby becomes Constitutional, then there is no Constitution. There’s just raw, arbitrary political power.
Utterly irrelevant. If it’s so strongly supported, there’s no problem amending the Constitution first.
March 22, 2010, 8:42 pmMike S. says:
If you are a libertarian, be careful what you wish for. Unless there is a constitutional difference between taxing people to provide health care for those over 65 and doing so to to provide health care for younger folk, there is no question that the government can impose a tax and pay the insurers or health care providers directly. Making you buy insurance is different only in name; you can be sure if a mandate is replaced by a tax the total levy will go up.
March 22, 2010, 8:43 pmyankev says:
Why not criminalize the anti-social behavior and be done? After all, if you rise to early or retire too late, you will use more artificial light, contributing to the planet’s warming and thereby endangering us all. And if you fail to wear a hat, you may be tempted to raise the temperature on your thermostat, with similar results.
March 22, 2010, 8:46 pmAnon21 says:
So what you’re saying is that voters have the authority to vote out representatives who, in their opinion, have acted unconstitutionally. Has anyone ever questioned that, or is this just meaningless rhetorical posturing?
March 22, 2010, 8:46 pmAllan Walstad says:
Mark, Hamilton left the convention. Why should anyone accept his propaganda as an authority on the Constitution’s meaning? Aside from promoting ratification, he was also trying to insinuate his unlimited national government view after it had been rejected by his convention colleagues.
March 22, 2010, 8:47 pmLawGuy5000 says:
You and Prof. Somin both make a false dichotomy between striking down Health Care legislation or as, you phrase it, upholding the “infinite power” of Congress (Prof. Somin called it “Let[ting] Congress do whatever it wants.”) There are many principled arguments for upholding the health care legislation and still believing the Constitution limits the power of the Federal Government.
If this comes to the Supreme Court, they will uphold it, and they will still affirm a principle that does not allow Congress to do whatever it wants. You are overestimating the scope of the bill and, what seems to be in your view, the unprecedented radicalism of the mandate. Frankly, you sound a bit hysterical. Of course the Supreme Court could narrow the Commerce Clause based on a tide of political belief. It wouldn’t be very good for the modern political economy, the integrity of the court, or any claims that originalism has the benefit of increasing predictability. This paragraph is a paradigm of legal Machiavellianism–and is pretty weak legal reasoning for an academic. Also, the tide of popular discontent with this bill, I predict, will never be there.
March 22, 2010, 8:49 pmAllan Walstad says:
Neither is remotely Constitutional, notwithstanding the sophistry of black-robed enablers of the pols who appoint them.
March 22, 2010, 8:53 pmKevin says:
Added to this is the fact that my right to seek medical services predates the Constitution, and is part and parcel with my rights to Life and probably Liberty, which are enumerated. I won’t even touch on Privacy, which is also sacrosanct.
Unlike some other activities, such as driving, where I might be required to purchase insurance — given that I chose to drive — breathing in and out is not a mere privilege. Nor is seeking medical help should that be threatened. That my doing so interferes with your regulatory scheme is an indictment of your scheme, not my breathing.
March 22, 2010, 8:54 pmAnon21 says:
Ok, let’s grant that. Now tell me what you find in this bill, and not in your paranoid fantasies about this bill, which interfere with your liberty to seek whatever type or quality of medical services that you desire.
March 22, 2010, 8:59 pmKevin says:
The point is well taken that they could just go for single-payer and be done with all this mandate crap. They might well do so.
But the point should also be well taken that IF they can get away with this mandate, what principled argument does one have against them taxing you for not buying a Chevy this month? Or for not tattooing your social security number someplace? Or dyeing/not dyeing your hair orange?
Fifty years ago, there was a long argument about Public Accommodations, where some libertarians said that forcing someone to sell to all members of the public interfered with their right to conduct business as they wished. Obviously this was a hard argument to sell, given the evil of Jim Crow, but since then then government has gotten itself into NEARLY EVERY aspect of business decision.
Precedents matter.
March 22, 2010, 9:04 pmKevin says:
You intentionally miss the point. The bill is taxing me because the State doesn’t like how I go about my Right. Kinda like the Right of Reasonable Speech.
March 22, 2010, 9:06 pmAnon21 says:
Many principled arguments. But as to the Chevy-buying example, I think few of those principled arguments would be constitutional in nature.
March 22, 2010, 9:07 pmorca says:
How can the government prosecute religios who refuse to get medical care for their kids?
And isn’t requiring people to seek medical attention more onerous than requiring people to buy medical insurance?
March 22, 2010, 9:13 pmXenocles says:
Just as the old argument went that the Constitution only guarantees the right to choose which god to worship – not the right to worship none.
As to tax credits, one could make a serious argument that the very idea is unconstitutional, as Congress only has the power to “lay and collect” taxes. Giving the money out preferentially doesn’t seem to be an option.
March 22, 2010, 9:17 pmSteve says:
Congress authorized the Iraq War in November 2002.
Congress authorized Obamacare in March 2010, so there you have it. Obviously it’s okay to take your money for something you don’t want to spend it on as long as Congress authorizes it.
Medicare is not unconstitutional (and no one has to sign up for Medicare if they don’t want to).
Why is Medicare constitutional? Because you can opt out of paying for it by choosing not to earn any wages? Sure, you don’t have to sign up for treatment, but you’re getting taxed your whole life to pay for the insurance either way.
Most people accept that the government can tax you to pay for trash-removal services. If the government chooses to privatize trash removal and turns over your taxes to a private company, is that constitutional? How about if the government just directs you to pay a monthly fee to that company for trash removal? You might like the feeling less and less as we proceed down the slippery slope, but there’s nothing in the Constitution that says utilizing the government as a pass-through is a constitutional safe harbor.
March 22, 2010, 9:18 pmAnon21 says:
The First Amendment issue you appear to be raising is distinct from the question of whether Congress has the affirmative power to make regulations of this sort. (And note that under Employment Division v. Smith, the idea is that religious people and religious practices do not get exemptions from neutral, generally applicable laws.)
March 22, 2010, 9:19 pmAnon21 says:
What the state is objecting to and targeting here isn’t any aspect of the right you argue is somehow inherent in the structure of American liberty, the right to seek such medical care as you may decide is right for you, but rather the “right” to free load on a comprehensive system of universal insurance coverage. I don’t think that’s really something the Framers meant to reserve to the people, or even an issue they considered at all.
March 22, 2010, 9:34 pmMark Field says:
Public acceptance of a law is not irrelevant, it’s evidence — evidence that the public at large understands the Constitution differently than you or I might.
That’s not to say that those of us who oppose a given law, even one well-established, need to give up on the issue. But it does suggest a little humility in making the argument.
There are 2 problems with this. First, Hamilton was not alone in his view of the extent of the tax power; opponents of ratification agreed that it would do so and used that very argument as a reason why the Constitution should not be ratified.
Second, from an originalist point of view, it’s illegitimate to pick and choose among those who ratified the Constitution. Hamilton was certainly one of those: not only did Federalist 34 influence others, but Hamilton himself voted for ratification in the NY convention.
It’s fair, of course, to say that Hamilton’s view on an issue did not represent the majority of that time. That’s certainly the case on some issues (as it probably is for all the Founders; none of them represented a majority every time). But AFAIK there’s no reason to doubt that in this case Hamilton was right (again, about the extent of taxation; he agreed that its purposes were limited by the Constitution).
March 22, 2010, 9:34 pmDel says:
I think you forget, that the law does not require very many people to do anything. Perhaps 10% will be either required to sign up for mostly subsidized insurance, or get a job with subsidized insurance, or pay a tax.
March 22, 2010, 9:40 pmSteve says:
Second, from an originalist point of view, it’s illegitimate to pick and choose among those who ratified the Constitution.
But then what’s the point of being an originalist?!
March 22, 2010, 9:47 pmDavo says:
The Second Militia Act of 1792 required every “free able-bodied white male citizen” to arm themselves at their own expense with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack.
Mandate?
[DK: Yes, under the congressional militia powers granted under Article I. The militia power by its very nature presumes that most militiamen will be bring to duty arms supplied by themselves and of the kind in common use at the time. I deny that the interstate commerce power or the tax power include the authority to imprison people for choosing not to engage in intrastate commerce.]
March 22, 2010, 9:59 pmAllan Walstad says:
Or, it’s evidence that the public by & large has no idea what’s in the Constitution, or has been bamboozled by government schooling, or doesn’t care. The point is, the Constitution is the rules. The rules don’t change just because a lot of people want a result and aren’t willing to change the rules first to make it legal. Nor does red become green just because pols who say so get re-elected.
As for Hamilton, if you’re quoting him because his is what you take to be an eloquent statement of a position with which you agree, then fair enough. But his desire for an unlimited national government lost out in the convention, which is why he left, and which raises the likelihood that his arguments are attempts to insinuate his view after the fact. Madison’s would be the more authoritative voice, and Madison later diverged from the unlimited nationalists on the extent of federal power.
March 22, 2010, 10:27 pmMark Field says:
Heh. You’ll get no argument from me on this.
I have a stronger view of republican government than that. Or a less bleak view of human nature (call me Candide, I suppose).
At this point, using SS as an example, we’ve had 28 presidential elections and 56 Congressional elections since it was first enacted (by overwhelming majorities: 372-33 in the House and 77-6 in the Senate). During that entire time, the people have never voted to repeal it, and there has never been any serious attempt to repeal it, though there have been modifications made and others suggested. The Court has held it constitutional and I doubt you’d find any Justice since, other than Thomas, who would find otherwise.
In light of this, to argue that it’s not Constitutional strikes me as arguing that the tide should not come in. Maybe you’re right, but maybe this is an example of Madison’s argument regarding the Bank:
“It was in conformity with the view here taken of the respect due to deliberate and reiterated precedent, that the Bank of the United States, though on the original question held [by Madison] to be unconstitutional, received [Madison’s presidential] signature in the year 1817. The act originally establishing a bank had undergone ample discussions in its passage through the several branches of the government. It had been carried into execution through a period of twenty years, with annual legislative recognition … and with the entire acquiescence of all the local authorities, as well as of the nation at large; to all of which may be added a decreasing prospect of any change in the public opinion adverse to the constitutionality of such an institution. A veto [by Madison], under these circumstances, [especially after having admitted both] the expediency and … necessity of the measure, would have been a defiance of all the obligations derived from a course of precedents amounting to the requisite evidence of the national judgment and intentions.”
I do agree with Hamilton on this point (it’s a narrow one, remember); the example of war alone is enough to convince me that the federal government must have unlimited access to resources in order to fulfill its indisputable duty to defend the US.
Again, I think that Hamilton was stating the generally accepted view of the tax power. Some thought that a good thing, others a bad thing, but it was the generally held view of the time.
March 22, 2010, 10:46 pmChris I says:
David Kopel’s primary argument is rather lightweight, but there is absolutely no excuse for a law professor to be peddling the vicious lie that people will be jailed or given “prison sentences” for violating the individual mandate. As page 336 of the Senate’s health care bill provides, “In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.” This language is maintained by the reconciliation bill and will soon be the law of the land.
Professor Kopel – Please fix your post.
[DK: Will do. Thanks for the correction. The House and Baucus bills had criminal penalties, but you're right about the Senate bill. Details here: http://fixhealthcarepolicy.com/in-the-news/nothing-voluntary-about-obamacares-mandate/ ]
And thanks for linking to the debate between Balkin and Rivkin/Casey. It warms my heart to read such a smackdown on conservative legal “scholars.” Balkin’s addendum is here.
March 22, 2010, 11:01 pmAlyssa says:
What ever happened to the national sales tax movement? We should do that.
March 22, 2010, 11:12 pmAnonsters says:
You and your damned “facts” are getting in the way of the rhetoric around here!
March 22, 2010, 11:12 pmProf. S. says:
No, it requires everyone to purchase insurance. It’s just that 90% of people are doing that already.
March 22, 2010, 11:13 pmDerHahn says:
15.Kevin says:
….
Unlike some other activities, such as driving, where I might be required to purchase insurance — given that I chose to drive …
Can we please retire this line of argument either for or against the HCR bill? Your choice to drive has nothing to do with the ability of your state government to require you to purchase liability insurance to compensate someone who is injured through your negligence. Check your state laws, I’ll practially guarantee you aren’t required to carry insurance on yourself or your own auto. A State has a general police power to protect the health and welfare of it’s citizens (such as providing compenstation if they are injured in a car crash), something the Federal Government has generally not been held to have.
March 22, 2010, 11:20 pmDunstan says:
“A State has a general police power to protect the health and welfare of it’s citizens (such as providing compenstation if they are injured in a car crash), something the Federal Government has generally not been held to have.”
But that distinction is irrelevant to the argument being made by some here that HCR constitutes “tyranny” that puts citizens “in chains.” I doubt that the people making that argument are willing to stipulate that state governments are allowed to be tyrannical.
March 22, 2010, 11:24 pmDesiderius says:
Chris I,
“It warms my heart to read such a smackdown on conservative legal ‘scholars.’”
What is denoted by the scare quotes? Is your view that conservatives views are overrepresented in the academy, or just that those who represent them are poor at their job?
March 22, 2010, 11:28 pmSteve says:
Check your state laws, I’ll practially guarantee you aren’t required to carry insurance on yourself or your own auto. A State has a general police power to protect the health and welfare of it’s citizens (such as providing compenstation if they are injured in a car crash), something the Federal Government has generally not been held to have.
So wait, the government can require everyone else to carry insurance in order to make sure you get compensated if you’re injured in an accident, but if they require you to carry insurance to the same end, it’s illegitimate? Are we back to arguing about the constitutionality of seatbelt laws?
March 22, 2010, 11:57 pmAmerican Psikhushka says:
Threadjack:
Of course the Federal Reserve and our fiat money system is already a pretty infinite de facto tax power – just print the money and that’s that.
Had to mention it. You may now return to your regularly scheduled thread.
March 23, 2010, 12:05 amHudson Hornet says:
This post is an exercise in self-parody.
March 23, 2010, 12:19 amAnachronym says:
Steve already hit this point in the first comment, but it bears some expansion –
Prof Kopel,
What would be the practical and constitutional difference if, instead of a $700 ‘fine’ (tax) levied only against people who fail to obtain health insurance coverage, the bill had implemented it as an across-the-board tax increase of $700, and then established a $700 tax credit for anyone who has health insurance? I understand that libertarians and conservatives oppose taxes in general, but I don’t believe that you would contest that a generally-applied tax increase is constitutional? Nor are tax exemptions or credits, even when designed to incentivize a particular policy choice? If such a tax credit WERE to be unconstitutional, wouldn’t that invalidate similar tax credits for children, or for education?
Does the Child Tax Credit represent government mandating that everyone procreate?
Does the Education Tax Credit represent government mandating that everyone spend their lives in university?
And if these are OK, is the only problem with the Individual Mandate the fact that it was structured as a fine rather than as a general tax increase plus a matching, universally available tax credit for those who qualify?
I suggest that in practical effect there is no difference between the two methods of implementation, but perhaps you can point out some significant differences that render the former unconstitutional but not the latter.
March 23, 2010, 2:29 amDel says:
No. They aren’t. Someone else is purchasing their insurance and determining what their benefits are (usually their employer, who is subsidized in doing so by the Federal government).
March 23, 2010, 4:59 amBuddy Hinton says:
Somehow this post reminds me of the [i]Eldred[/i] copyright case where the Supreme Court said that a copyright term was “limited” within the meaning of the Constitution as long it was less than infinite in duration.
March 23, 2010, 6:32 ammattski says:
Mark, thanks for that informative comment. You can learn a lot around here sometimes.
March 23, 2010, 7:33 amJoe T. Guest says:
Only one thing is certain in this debate: that any serious questions will immediately be answered by snarky off-point comments about The Hated Bush.
Sneering at Bush: is there nothing it can’t do?
March 23, 2010, 8:19 amSuperSkeptic says:
Ah, the best healthcare in the best of all possible worlds!
How sanguine are you that republican government can control (long-term) its natural inclinations toward denigration of property rights and financial profligacy? That is, with unlimited tax powers and unlimited commerce powers and unlimited…well, everything powers. Like rats in a cage pushing the morphine button…
March 23, 2010, 10:07 amInstapundit » Blog Archive » DAVE KOPEL: Is the tax power infinite? “Americans today are not bound to meekly accept the most fa… says:
[...] KOPEL: Is the tax power infinite? “Americans today are not bound to meekly accept the most far-ranging assertions of [...]
March 23, 2010, 10:28 amMark Field says:
As a practical matter, this is true. It’s also true that Congress could use its indisputable power over the military to tax us infinitely to pay for an ever-expanding military.
Properly structured, a republican government can, I think, do that for a very long time indeed. In general, I think the best way to assure the “permanent and aggregate interests” (Madison’s phrase) of the nation is to rely on the long term rule of the majority. That doesn’t mean every short term whim ought to be enacted, but it does mean that if the people show, over a long period of time, that they want something, I’m generally of the view that their answer is likely to be right.
There are, of course, caveats to this, but this is a blog comment not a dissertation.
March 23, 2010, 11:15 amyankev says:
Many people are sure that the rules of Monopoly provide for putting $500 in the center of the board and adding to it any fines that are collected, then awarding it to any player who lands on Free Parking, replacing it with another $500, and repeating the process. That common understanding doesn’t alter the fact that the rules of Monoply say that there is neither reward nor penalty for landing on Free Parking.
March 23, 2010, 11:18 amyankev says:
I believe it is called reductio ad absurdem. But it can be a useful tool for pointing out flaws in a principle.
March 23, 2010, 11:25 ammariner says:
It’s even worse. A convincing majority of Americans, both Democrats and Republicans, understands that up is not down, that left is not right, and red is not green. Nonetheless a bare majority of the Democrat-controlled House votes that they are.
THAT is raw arbitrary political power.
March 23, 2010, 11:37 amSacrastro says:
I’m a liberal and I disagree! Up is down, and left is right! Red is indeed not green, though, it’s more bluish. Lavender, really.
And anyone who disagrees is arguing against the clear facts, and being arbitrarily raw on the internets!
March 23, 2010, 11:51 amBecky says:
What if I make enough income that I do not qualify for a subsidy, but am a very poor money manager and spend everything I make for self indulgences; a new car, furniture, clothes, lessons for the kids, and come time to pay my health insurance (on top of property tax, liscensing fees, car insurance, the things I really want), I don’t have any money left to pay for either insurance or the fine. In this scenerio, I am basically bankrupt, my credit cards are maxed from the last few years of spending on health insurance, and I cannot get a loan, I’m upside down in my house and car, my two largest assets. Do I go to jail for failing to pay a debt? Will we have to create debtor’s prisions?
I can see that happening, being a high income earner with poor money skills, maybe not with myself, but with others I know.
This law relies and acts like the refusal to pay is deliberate, when in fact, it may be lack of ability to manage finances. And this discussion seems to negate the government use of force called jail time. When I don’t pay my property taxes, or income taxes, the government takes my assets. If I don’t pay car insurance, get in an accident and get sued, I lose my assets. If I don’t pay my health insurance, the collateral interest is my body, I guess.
March 23, 2010, 12:14 pmWhat are the limits of government? « The Javelineer says:
[...] a comment » David Kopel asks, is the tax power infinite? Americans today are not bound to meekly accept the most far-ranging assertions of congressional [...]
March 23, 2010, 12:17 pmAllan Leedy says:
Thanks for using the term “Obamacare” early in your post. It helps with the evaluation of your post as a whole.
March 23, 2010, 12:25 pmfda says:
“A large and permanent majority of the American people immediately accepted Social Security as a constitutional solution to poverty among the elderly and to massive unemployment (since Social Security would open up jobs by encouraging people to retire sooner).”
I believe that this is incorrect. Male life expectancy when SS was enacted was 62 or 63, SS was supposed to provide a supplement if your savings ran out. (The age of 65 appears to have been selected based on the German/Bismarck model.)
March 23, 2010, 12:39 pmS says:
Opponents think it’s a good idea to put the words Obama and care, together. That’s, really, sweet of them. I notice the representatives largely avoided it on Sunday. There were only one or two mentions and one mention of Pelosicare.
March 23, 2010, 1:35 pmhahaha says:
Jack Balkin is out of his bloody mind if he thinks that reasoning will fly with the public at large. People’s lives are already being destroyed or derailed – there is no patience for this sort of nonsense.
March 23, 2010, 1:46 pmDoug in San Diego says:
The question I have is this: Even if we assume an elastic reading of the Commerce Clause, how can the Federal Government pretend to regulate Interstate Commerce in this case, when the law deals with intrastate health markets (no national market for healthcare). If the health insurance industry is still regulated on state by state basis, doctors are licensed on a state by state basis, and this law builds upon that, how can it pretend to override the powers of each state without constructing a national healthcare market in the process? Since it isn’t doing so, how can it claim to be regulating interstate commerce? Instead, it seems to regulate non-interstate non-commerce.
March 23, 2010, 2:21 pmFat Man says:
All hail to our savior Obama. He is the Won, the Light and the way. If he tells Robert Gibbs to say that Obamacare is constitutional, then it must be true, because His will is the only reality.
March 23, 2010, 4:22 pmbyomtov says:
However, if the tax power means that Congress can order citizens to buy something they don’t want to buy, why does Congress not have the power to assess taxes on people who get too little sleep, or too much sleep, and thereby harm their own health and the public fisc? Or who wear hats so little that they increase their risk of skin cancer?
I don’t know. One thing I do know is that conservatives are fond of pointing out that not every bad law is unconstitutional.
March 23, 2010, 4:26 pmDesiderius says:
“The age of 65 appears to have been selected based on the German/Bismarck model.”
It wasn’t the only ding.
March 23, 2010, 4:34 pmIndy says:
The issue is easy, “Is the government omnipotent or limited?” What possibly coherent limiting principle exists to contain the power of the sovereign if its powers reach to such an extent as to incorporate this mandate?
March 23, 2010, 5:07 pmWolfgang Puck Bistro 900 Watt Food Processor – Item: 923-056 | Food Processor Mixer says:
[...] The Volokh Conspiracy » Blog Archive » Is the tax power infinite? [...]
March 23, 2010, 5:41 pmAmerican Psikhushka says:
Mark Field-
As a practical matter, this is true. It’s also true that Congress could use its indisputable power over the military to tax us infinitely to pay for an ever-expanding military.
True, but if you’re talking regular legislatively passed taxation there would tend to be outrage and repurcussions. Most people aren’t informed about inflation (And Keynesians/mainstream economists think there are necessary and acceptable levels.) so they can bleed the private economy all they want until they cause hyperinflation.
March 23, 2010, 7:39 pmuberVU - social comments says:
Social comments and analytics for this post…
This post was mentioned on Twitter by ndtnpaul: Worth considering in a non-hysterical and non-ignorant fashion: http://tinyurl.com/yjcehjp...
March 23, 2010, 9:11 pmDougger says:
Tax credits for children and education are also unconstitutional.
March 23, 2010, 9:18 pmperplexed says:
“Sonzinsky is deferential to congressional motives, but it does nothing to support the claim that non-commercial activity may be taxed.”
Many tax credits are de-facto taxes on non-commercial activity. Not having children, for example. Since tax credits are used as an incentive for persons to engage in some preferred non-commercial behavior, the failure to engage in the preferred behavior is in fact a tax.
Having said that, the individual mandate goes beyond a mere tax or an inducement to engage in preferred behavior, but instead prescribes that behavior, and penalizing noncompliance. Also, although realizing that the article was introduced as ignoring the question of whether the mandate was an article 1 tax or a sixteenth amendment tax, if it is a tax it has to be an article 1 tax, and thus is unconstitutional because the amount imposed varies from person to person.
March 23, 2010, 9:22 pmperplexed says:
A little off-topic, but the idea that health care regulation is permitted under the commerce clause of Article 1 section 8 is scary BECAUSE Congressional power under that provision is so sweeping. Once you get in that door, then there is little, if anything, that Congress cannot do. There was quite the argument a while back about whether or not the legislation established “death panels.” If health care is within the penumbra of federal commerce authority, then I have little doubt that Congress has the authority to set them up, whether or not it elects to do so.
For example, under established precedent, Congress can dictate that X operation to cure X disease is either banned or limited to certain individuals who meet a quality of life year test like what was suggested in Britain. Congress can ban outright private insurance (or insurance not conforming to a qualified plan), or can prohibit people from spending their own money to pay for an operation (the Wickard decision). If health care is capable of regulation under the Commerce clause, regulation is plenary. That should scare the bejeebers out of any thinking person.
Conversely, if health care legislation is only an entitlement that merely redistributes taxes under the General Welfare provision, then Congress cannot do any of the foregoing things, but at best can prevent tax dolllars from being spent for certain operations, etc.
March 23, 2010, 9:36 pmRob Clark says:
I’ not buying his arguement. The Commerce Clause was bastardized in the late 30′s and 40″ primarily by FDR. I still believe that the Founders interpreted the Commerce Clause to made trade between the States a “Free Trade” Zone period because some States were charging duties on goods crossing State lines to some States and not to others.
March 23, 2010, 10:50 pmTherefore 90% of the Federal Government spending is unConstitutional as well as being illegal and immoral.
Berkeley Z says:
Steve – Has Obama gotten your permission to stay in Iraq?
The point here is that the authority to tax may be broad, but should it be unlimited? If this goes through, there IS NO LIMIT to what the government can make you do. All the government has to do is have the IRS enforce it and structure it as a tax. It is really a fundamental argument on what kind of society we want moving forward. Do we want a government with unlimited powers to regulate and dictate actions and non-actions in our day-to-day lives? This is not a slippery slope. The American people have rejected Single Payer at every point and time. It took tyrants namely the Obama-Pelosi-Reid Axis to IGNORE the will of the people in order to setup a system where government-run health care will be inevitable.
There needs to be a limit to federal power. Precedent has not stopped the ACLU so it should not stop people who still love, desire and want to preserve freedom. This is why I don’t care for the technical legal precedent. The Constitution is clear on what this separation should be regardless of an activist court from the late 30′s interpreted.
March 23, 2010, 11:49 pmreadery says:
Sonzinsky v. United States was hardly an isolated case. There’s a long line of such cases holding that a tax on A is simply a tax, and its tendency to discourage A simply doesn’t change matters.
The “a tax is just a tax” doctrine in which the Court expressly recognizes and permits Congress’ power to use taxation to shape behavior substantially predates Wickard. It’s more than a century old and was well established long before the more expansive interpretation of Congressional powers that occurred in the New Deal. See McCray v. United States, 195 U.S. 27 (1904)). Particularly given the Court’s relunctance to interfere with established Congressional powers expressed in Raich, it is extremely unlikely that even four members of the Court will be interested in revisiting, let alone overturning, this even longer-settled doctrine.
March 23, 2010, 11:53 pmNaSa says:
However, if the tax power means that Congress can order citizens to buy something they don’t want to buy, why does Congress not have the power to assess taxes on people who get too little sleep, or too much sleep, and thereby harm their own health and the public fisc? Or who wear hats so little that they increase their risk of skin cancer?
I don’t know. One thing I do know is that conservatives are fond of pointing out that not every bad law is unconstitutional.
@byomtov,
That was a weak and rather lame response from you. I wont blame you as you dont really have ANY counter arguments here. After all, you just placed yourself prostrate at the benovolence of the Federal Government not to do excersize its out sized powers -powers which the framers worked hard to make sure that the Federal Government never had. powers which you are now more than willing to admit that the Federal Government has. It is downright scary to see the number of people here who say that the Government has infinite powers of taxation just because Alexander Hamilton loved that idea.
As A.G.Gardiner states, there are rules and then there is the rationale/spirit behind these rules – if you dont understand that your constitution is an exercise in restraint of a strong central authority, it does not matter how many Articles you can quote from the top of your head and how many SCOTUS decisions /precedents have been created.
No one here has been able to illustrate how exactly “InterState Commerce” clause can be applied to regulate what is intra-state activity – and given the fact that insurance CANNOT be sold across state lines, you have to have a lot of chutzpah to even justify this with the InterState commerce shenanigan of an excuse.
Why dont you people admit that all that you are doing is rationalizing about this monstrosity.? You might as well come out honestly for single payer system but honesty is not much of a virtue with you legal beagles, is it ?
There are 14 states who are now suing this legislation – they are broke with already existing Medicaid “systems” in their states and now they are mandated to cover even more people. I am sure the bright legal scholars who labor hard to prove the Constitutionality of this Craptacle have some even brighter solutions – hey why not let each of the States print more money ? That should fix it.
No prizes for guessing that the largest state in the Union is one among the 14 states.
This country has gone to the socialists. May be , i did return home at the right time. At the very least I dont have to worry about the Government of India asking me to pay a fine since i dont have health insurance.
No joke – India is much less of a welfare state than the US- who would have thunk that ?
March 24, 2010, 4:02 amTweets that mention The Volokh Conspiracy » Blog Archive » Is the tax power infinite? -- Topsy.com says:
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March 24, 2010, 6:46 amGuy Helvering says:
No, the Supreme Court long ago held that the uniformity clause in in Article I, Section 8 means geographical uniformity, not inherent uniformity.
I found it astonishing that Rivkin and Casey would argue that a a non-income tax on individuals is a direct tax. Such an absurd claim smacks of the rhetoric of tax protesters and ignores how the Supreme Court has come to define what an excise is. Having said that, however, I’m not fully convinced that one can stretch the rationale of the Bromley case cited by Balkin to support a tax on a decision not to use property in a certain way.
March 24, 2010, 3:02 pmManekiNeko says:
The individual mandate is either an indirect (excise) tax or a direct tax. If the latter, it is either an income tax or not. If it is a direct tax (and it does seem like a capitation) and not an income tax, then it must be apportioned, which it is not. If it is supposed to be an income tax, then it is very odd one in that it doesn’t tax income at all. It only imposes a penalty via the mechanism of the IRS for failure to participate in a third party commercial transaction. If it is an excise tax, those are normally triggered by events, but this seems to be triggered by a non-event, which is also odd.
IMHO, the particular facts seem unique enough that this should be a matter of first impression for the courts.
March 24, 2010, 3:10 pmKyle says:
All wage earners are required to pay into the Medicare system via payroll taxes, a system that, because of the nature of the benefits formula, amounts to (among other things) a redistributive transfer from the relatively healthy to the relatively unhealthy in the system. Of course, all health insurance pools are to some extent redistributive in this way, as there is inevitably some cross-subsidization within insurance. Which leads me to this conclusion: If a tax imposed on an individual who declines to purchase private health insurance (and thereby contribute the the natural cross-subsidization within insurance pools) is considered unconstitutional coercion by the federal government, then wouldn’t compulsory Medicare taxes be likewise unconstitutional?
March 24, 2010, 8:38 pmNaSa says:
If a tax imposed on an individual who declines to purchase private health insurance (and thereby contribute the the natural cross-subsidization within insurance pools) is considered unconstitutional coercion by the federal government, then wouldn’t compulsory Medicare taxes be likewise unconstitutional?
It is not the mandatory and obligatory duty of citizens to keep private insurance companies in business – if their insurance pools do not have the requisite number of healthy people, too bad – they can either increase the premiums of those who are already their customers and if this idea doesnt work out, they will go out of business IN THAT STATE.
Can you imagine insurance companies complaining to the Government that enough people are not enrolled in their insurance pools so that they could do a profitable business ? Yes YOU CAN ! Insurance companies are the ones who demanded MANDATES to begin with…
In a sane and a welfare-free world, of course Medicare taxes are unconstitutional. Just like Social Security taxes are unconstitutional. But the SC in FDR’s time and LBJ’s time did not have the balls to do what should have been done.
You may be interested in finding out how FDR played ruthless hard ball with SCOTUS to get his Social Security program legalized – when LBJ had super majorities in the 60′s I am pretty sure that SC justices who are conservative must have thought about 1935 for a little bit.
March 25, 2010, 10:22 amVladtheimp says:
Apparently many here believe it is within the Constitutional powers of the Congress to force individuals to purchase a product from a private entity, or pay a tax if they don’t, in furtherance of a public good (to paraphrase John Conyers, Chairman of the House Judiciary Committee). I guess they would agree that it would be within the powers of the Congress to require individuals to purchase solar collectors to fight global warming, or pay a fine if they refused, even if they are Inuit fishermen in Nome, Alaska. I would like them to explain the proposition, as expounded by the contemptible Steny Hoyer, that it is fair to tax everyone to purchase health insurance for the public good, but not fair to force individuals to pay taxes for all other government funded activities for the public good (federal courts, EPA, HUD, HHS, IRS, Congressional salaries, etc.) in view of the fact that approximately 50% of the population pays no income taxes whatsoever, and with some even getting a rebate for not sharing in the cost of such federally funded activities for the public “good.”
March 25, 2010, 3:57 pmThomas Jackson says:
Where in the constitution is there a limit to what the progressives can tax in order to achieve social justice?
Silly fool.
March 25, 2010, 10:30 pmruralcounsel says:
And where does the Constitution say that the government can’t just annihilate us all and march us to the mass graves, make us lie down, and have the bulldozers cover us over? Especially if it were for some greater “social good”? After all, there have been plenty of radical advocates for the environment saying as much…mankind is a cancer, we have to depopulate the Plains and the Rockies, humans are causing global warming, etc..
If the Constitution can be interpreted as not having these limits, then it is all sophistry. I can virtually guarantee that the 3%er’s will respond with a shooting war as soon as the government tries to act that way.
See ya’ll on the Lexington Green!
April 1, 2010, 11:58 amArmada Media Blog News Flash » The Individual Health Insurance Mandate and Taxes says:
[...] and made it illegal to require anyone to buy health insurance. I won’t get into the constitutional issues (they are way beyond my pay grade), but the economics is worthy of note. And my crude grocery [...]
April 1, 2010, 7:11 pm» The Left Claims They Can’t Find Anyone Who Says Obamacare is Illegal - Big Government says:
[...] and several months ago authored a piece explaining why in the Wall Street Journal. There are plenty [...]
April 2, 2010, 10:14 pmLefties Claim They Can’t Find Anyone To Argue That Obamacare Is Unconstitutional : Conservative Compendium says:
[...] and several months ago authored a piece explaining why in the Wall Street Journal. There are plenty [...]
April 2, 2010, 10:58 pmLarry says:
For those of you who seem to have trouble distinguishing between taxation and regulation, I would suggest that there is a BIG qualitative difference between the two when it comes to deciding whether the individual mandate is really a “tax” rather than a regulation. Many states have case law distinguishing between the two in terms of the general term “forced exaction for government purposes.” A straight $700 tax imposed upon a person to pay for health care would qualify in that regard and if it were not authorized by a state legislature, would fail under the case law of most states. A provision that requires you to carry health insurance, or else you pay $700, indeed is penal in character and has a much more “regulatory” aspect, in that it regulates and requires a specific behavior (as distinct from the above-mentioned tax, which simply requires the payment of money – money which in fact Congress can spend in any way it chooses). It is fairly clear to me that Congress is “regulating” non-activity regardless of how they characterize it. Arguments to the contrary in this thread are disingenuous.
April 6, 2010, 3:11 pmIndependence Institute: Jon Caldara » Is the Power to Tax Infinite? says:
[...] health care takeover is the fact that we citizens will be punished – a.k.a. taxed – for NOT engaging in commerce: …the people’s grant to power to Congress to regulate commerce among the several states does [...]
April 7, 2010, 8:23 amWestmiller says:
“In contrast, not buying health insurance is not in its nature a commercial taxable activity.”
Wow. You’re absolutely right. Just like not buying a retirement program or elderly health coverage.
I’m absolutely certain that the Supremes will overturn ObamaCare, Social Security, and MediCare as soon as it’s pointed out that none of them are tasks listed in the Constitution.
I’m also confident that the courts will eliminate the ability of Congress to bribe states to implement federal policies and programs, which I’m certain every state would turn down anyway, since its a violation of their sovereignty.
Seriously, anyone who pins their hopes of overturning ObamaCare on these grounds is seriously delusional.
April 9, 2010, 5:43 pmWestmiller says:
Wow. You’re absolutely right. Just like not buying a retirement program or elderly health coverage.I’m absolutely certain that the Supremes will overturn ObamaCare, Social Security, and MediCare as soon as it’s pointed out that none of them are tasks listed in the Constitution.
I’m also confident that the courts will eliminate the ability of Congress to bribe states to implement federal policies and programs, which I’m certain every state would turn down anyway, since its a violation of their sovereignty.
April 9, 2010, 5:49 pmSeriously, anyone who pins their hopes of overturning ObamaCare on these grounds is seriously delusional.
NoWay says:
Help!
President Obama’s demonization of the private insurance industry had such a profound affect upon me, I recently joined an organized boycott of the health insurance industry.
Now it seems my free speech right and my choice to exercise it by speaking with my wallet is threatened by the very man who inspired my consumer outrage.
For you legal and Constitutional scholars out there, exactly how do I exercise my free speech and consumer prerogative to boycott businesses or industries if there is a government mandate placed upon me that I must patronize them?
I realize I could pay the fine, but wouldn’t that amount to a toll for free speech?
April 10, 2010, 4:49 amGroup Asks: Is the Power to Tax Infinite? « OSPRI BLOG says:
[...] health care takeover is the fact that we citizens will be punished – a.k.a. taxed – for NOT engaging in commerce: …the people’s grant to power to Congress to regulate commerce among the several states [...]
April 12, 2010, 1:55 pmolivia says:
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April 16, 2010, 4:30 amirs notice of levy says:
Great information. Thanks for posting this.
April 20, 2010, 9:37 pmQwirk says:
What I want to know is how the Federal Government is going to enforce the tax penalty to those denizens who sleep under the Sixth Street bridge next to the Justice Center. Oh, they can’t afford to buy health insurance the majority of our good community will say. Continuing with their emotions, they belive we should pay for their helthcare nontheless. But wait, they clearly have income from the begging on the Pearl Street Mall as indicated by the bottles surrounding them. They havn’t filed income tax returns on this income. So, they are not filing and not paying income taxes (one must file, even if one does not owe a tax) but they are still receiving a benefit grom the govenment in futher free health care. Others may have similar income and be forced to buy. This is clearly a violation of equal protection.
April 22, 2010, 10:17 amAl says:
Arguments say well, it’s ok because it doesn’t affect everyone, and it’s not a mandate, just a tax. Don’t buy the gov package and you have to pay a tax, every month. If you agree to do as we say, we’ll stop slapping you in the face. If you don’t pay for protection you may suffer an unfortunate event, every month, until you realize the error of your ways.
Look at all the searching for references in previous cases. This bill is an attempt to set precedence with the real target being obscured. What needs more awareness about the insurance mandate is beyond the taxation; it’s that you will be required to use it:
The Constitution vs the health care bill at http://read-and-consider.blogspot.com
(You’ll have to scroll down past the post on what the media doesn’t want the people to know about the tea party.)
April 26, 2010, 1:06 amMore Reasons Why ObamaCare Is Unconstitutional « OSPRI BLOG says:
[...] of the health care mandate. His reasoning is similar to what Dave Kopel wrote in this previous Volokh post, where Dave asked, “Is the power to tax infinite?” Randy and Dave both discuss the [...]
April 29, 2010, 11:19 pmNerkBuckeye says:
In reply to Mark Field, who uses the trick of picking quotations out of context to skew the argument in his direction, I respond:
If you read further into #34 you see that Hamilton’s argument for taxes states that the protection of the Union through a strong military is essential and that the government’s hands should not be tied while attempting to execute its responsibilty (as one of its ENUMERATED powers)to defend the states from all enemies.
From #34–
“What are the chief sources of expense in every government? What has occasioned that enormous accumulation of debts with which several of the European nations are oppressed? The answers plainly is, wars and rebellions; the support of those institutions which are necessary to guard the body politic against these two most mortal diseases of society. The expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defense.
In the kingdom of Great Britain, where all the ostentatious apparatus of monarchy is to be provided for, not above a fifteenth part of the annual income of the nation is appropriated to the class of expenses last mentioned; the other fourteen fifteenths are absorbed in the payment of the interest of debts contracted for carrying on the wars in which that country has been engaged, and in the maintenance of fleets and armies. If, on the one hand, it should be observed that the expenses incurred in the prosecution of the ambitious enterprises and vainglorious pursuits of a monarchy are not a proper standard by which to judge of those which might be necessary in a republic, it ought, on the other hand, to be remarked that there should be as great a disproportion between the profusion and extravagance of a wealthy kingdom in its domestic administration, and the frugality and economy which in that particular become the modest simplicity of republican government. If we balance a proper deduction from one side against that which it is supposed ought to be made from the other, the proportion may still be considered as holding good.”
I don’t see Hamilton’s concern about the cost of Social Security, welfare or Obamacare discussed in #34 because as written the US Constitution does not give through enumerated power the ability for the government to redistribute wealth. So why should he be concerned about the immense cost of such? Paying for wars and providing for the protection of its citizens is one thing–confiscation and redistribution of one’s wealth was a completely different matter.
In the second paragraph of the quote Hamilton discusses that even with the excess of the monarchy in Great Britain the greatest threat to national debt was military spending. He states that descretionary spending (non-military) by the government was a mere 1/15 of annual income.
This is telling because Hamilton couldn’t imagine that even with the excess in which the monarcy spent money lavishly on themselves–he could not imagine anything more expensive than waging war.
’10 Budget
Military & Veterans 717 Billion (717,000,000,000)
SS-Medicare-Medicaid 1,483 Billion(1,483,000,000,000
The monarchy’s spending in this country is more than twice military spending–
Isn’t it odd that Hamilton was concerned about military spending and not social spending? Maybe it was because he considered it a non-issue since redistribution of wealth is not mentioned in the Constitution!
July 6, 2010, 10:23 am