With all this blogging here at the VC about whether the courts will invalidate the individual mandate as exceeding Congress’s Article I authority, I thought I would add my two cents by estimating the odds of that happening. In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9–0 (or possibly 8–1) vote to uphold the individual mandate.
Blogging about such issues tends to bring out some unhappy responses, so let me be clear about a few things: (a) I don’t like the individual mandate, (b) if I were a legislator, I wouldn’t have voted for it, (c) I don’t like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.
But with all of these caveats, I’ll stand by my prediction. I just don’t see lower courts finding these issues difficult, and I don’t see the Supreme Court likely to take the case. I recognize there’s always the theoretical possibility of the Supreme Court doing something totally unexpected — a Bush v. Gore moment, if you will — but I think the realistic possibility of that happening is less than 1%.
UPDATE: For more on my sense of where the Supreme Court is on federalism issues, see my 2005 post in response to the then-new Raich case, The Rehnquist Court and Symbolic Federalism. It’s a bit out of date, but still basically accurate.
Steve says:
I think an 8–1 decision would be clarifying, but I also don’t expect the day to ever come. It’s at least somewhat clarifying to see the same people who view the right-to-privacy cases as illegitimate argue that it’s unconstitutional for the government to tell them what to do. I believe it was my Property professor who repeatedly pointed out that it always depends on whose ox is being gored.
I shudder to think of the tongue-lashing Orin will be getting from Randy over this post, though. Steve(Quote)
mls says:
I basically agree. It is arguable that requiring people to purchase insurance is different than regulating commerce, but it seems clear that the ban on pre-existing conditions, moronic though it may be, falls comfortably within the commerce power as it has been interpreted. And despite the apparent belief of many politicians that it is possible to ban discrimination on the basis of pre-existing conditions without an individual mandate, I don’t think there is a colorable basis for this belief. At a minimum, the courts are going to defer to Congress’s judgment that an individual mandate is necessary in order to deal with the pre-existing condition “problem.” mls(Quote)
Eric says:
But what about as a taking? There’s a split on whether taking money and transferring it to a private party counts as a taking — just last year, you argued that the Court should resolve this.
The issue last year was Empress Casino v. Giannoulias, where the Illinois government took money from a riverboat casino and gave it to a horse track. As George Will said, “What is to prevent legislators from taking revenue from Wal-mart and giving it to local retailers?”
Forcing someone to buy health insurance seems to run a parallel track. Why can’t the government force us all to buy a Ford in order to stimulate the economy? Eric(Quote)
Allan Walstad says:
Does your odds estimate depend on how many states’ attorneys general sign on to a challenge? Or have you already figured that in?
[OK Comments: I don’t think the number of states’ attorneys general that sign on will make any difference.] Allan Walstad(Quote)
Orin Kerr says:
Eric: I believe that was Eugene, not me. Orin Kerr(Quote)
Conrad Bibby says:
I can’t really see it being a less than 1% chance if, indeed, “the individual mandate exceeds an originalist understanding of the Commerce Clause,” and there is a pretty strong contingent of originalists on the SCOTUS. Conrad Bibby(Quote)
Eric says:
Orin: oops, my bad. If you’d ask Prof. Volokh, I’d very much appreciate it. Eric(Quote)
Orin Kerr says:
Conrad,
I’m curious, did you read the oral argument transcript in McDonald v. City of Chicago? Orin Kerr(Quote)
rpt says:
How many of those AG’s are Republicans who opposed the very concept of health care reform from the beginning or are running for election/relection? rpt(Quote)
rb1971 says:
I’m really not trying to be snarky, what about the )Second Militia Act of 1792? How is requiring citizens to buy materials at their own expense different in kind from this individual mandate? You could argue that the cost impact was smaller, but that seems to be a difference in degree? I don’t know much about this Act other than what is laid out in Wikipedia so am happy to be shown how I am wrong. rb1971(Quote)
yankee says:
Amen. Bring on single payer! yankee(Quote)
JeffH says:
I was fortunate enough to attend oral argument in McDonald v. Chicago. The open hostility of both Roberts and Scalia to the originalist argument was a little surprising. I didn’t expect them to overturn Slaughterhouse, but I did at least expect them to let Alan Gura make his argument about original intent. It didn’t take more than a minute for them to close the door on the entire line of argument.
Any one who thinks that this Supreme Court will overturn existing precedent simply because “there is a pretty strong contingent of originalists on the SCOTUS” hasn’t been paying attention lately.
Based on Professor Barnett’s online discussion on WashingtonPost.com today I don’t think he and Professor Kerr are all that far apart on this issue: “Those of you who are opposed to this bill do not expect the courts to save you. They generally have not. Effective political action by you will be required. You cannot look to us lawyers for salvation.” JeffH(Quote)
frissell says:
Wouldn’t it make more sense for Congress to just order people to engage in healthy activity, check them annually, and fine them if their condition deteriorates below an (age adjusted) mean? frissell(Quote)
Andrew says:
There are other grounds upon which the individual mandate could possibly be held constitutional or unconstitutional. For example, the mandate could conceivably be held to be a tax (either a tax on income, or a direct tax that must be apportioned among the states). So, I would disagree with Orin’s assumption that the courts would uphold it under the Commerce Clause instead of another Clause. Also, there may be a challenge to the mandate under the Takings Clause. So, this whole thing is a good deal more complex than just a Commerce Clause issue.
Regarding Orin’s caveats, I don’t see any mention of whether the courts should hold as he predicts they will hold. In other words, is upholding the individual mandate what the courts are obliged to do? Why provide all of the caveats, while avoiding the central question, which is not what the courts probably will do, but what they should do according to binding law, oaths of office, and all that?
Also, in view of Orin’s statement that “the commerce clause ... covers, well, pretty much everything,” would Orin also say that a judge nowadays should just allow anything and everything that Congress wants to do under the Commerce Clause, as long as it violates no other clause? That seems contrary to decisions like Morrison and Lopez, no?
Orin does not seem to think it’s relevant that Congress has never before forced citizens to buy stuff. Isn’t that at least relevant here? I think so.
Basically, I think this blog post overlooks too much.
Personally, I’m not 100% sure how the courts will decide this, or how they should decide this, but whatever they decide would seem to be momentous and groundbreaking, even if there’s no circuit split. Andrew(Quote)
Conrad Bibby says:
Further contra to the <1% theory, I doubt there are actually 9 votes on the SCOTUS for the proposition that the Commerce Clause literally means nothing.
I would point out also that the SCOTUS has been known historically to “follow the election returns.” It is difficult to think of a better example than Obamacare of a clear majority of Americans feeling that Congress has exceeded its proper constitutional role in enacting a piece of legislation. Perhaps the Court would construe the popular outrage of Obamacare as a mandate to reimpose limits on Congress, whether under the CC or otherwise. Conrad Bibby(Quote)
Steve says:
Based on Professor Barnett’s online discussion on WashingtonPost.com today I don’t think he and Professor Kerr are all that far apart on this issue.
It is less a disagreement on the merits, and moreso the fact that Prof. Kerr has a way of remaining calm and unconcerned in the face of black-robed tyrants shredding the Constitution. Steve(Quote)
Allan Walstad says:
By the same token, how many of the pro-takeover votes were from Dems who’ve been itching to dump a bigger dose of unlimited federal power on us all for a long time? So what? My point is that there’s probably a difference in the eyes of the Supremes between Joe Schmoe from Dogpatch suing the feds versus numerous states joining together in suing the feds. Or at least, that’s what I was wondering about. Allan Walstad(Quote)
Desiderius says:
The mandate will stay, because without the mandate the whole house of cards collapses and we’re left with single-payer. Doesn’t change the gross injustice of heaping another few hundred billions onto the backs of the less-wealthy, less-free, less-white working young to finance the further indolence and mortality dodging of the aging boomers. Desiderius(Quote)
Talking Donkey says:
A serious question for all you Volokh guys. This bill raises revenue. Article I, Section 7 of the Constitution clearly says that all bills for raising revenue have to originate in the House. This bill originated in the Senate. So what makes it Constitutional? Talking Donkey(Quote)
PeteP says:
What’s next, if this new interpretation is upheld ? Can they order us to have yearly checkups ? After all, that effects ‘well being’ and premiums, right ? Will that be the new required sectino of the tax form ‘name the doctor who performed your yearly physical, and attach his report’ ?
That’s where this is going ! PeteP(Quote)
Orin Kerr says:
Steve:
It’s up to you, of course, but I think you could persuade more people if you ramped up the rhetoric a bit. Orin Kerr(Quote)
Andrew says:
I like forceful rhetoric every once in a long while, especially if it is deeply felt. Legal jargon can become dull and literally mind-numbing — so much so that we sometimes forget what’s really at stake. At least there haven’t been charges about “treason” yet. :-) Andrew(Quote)
Anonsters says:
You, sir, are a traitor to your country. Anonsters(Quote)
Andrew says:
Perhaps, but you will need testimony of two witnesses to the same overt act, at least from an originalist point of view. From other points of view, who knows? Andrew(Quote)
SuperSkeptic says:
treasonous bastards! SuperSkeptic(Quote)
Anonsters says:
Drat!
And I would’ve gotten away with it if it weren’t for that meddling Constitution! Anonsters(Quote)
U.Va. Grad says:
The Senate didn’t originate the bill. H.R. 3590 was a pre-existing revenue bill that had already been passed by the House (I believe it had to do with tax credits for military service members or something). The Senate amended H.R. 3590 by completely striking its text and rewriting it from the ground up — but this was nonetheless merely an amendment. The House then passed H.R. 3590 as amended, satisfying Article I, Section 7.
This procedure has been used with some frequency, often for controversial measures (e.g., Reagan’s tax increases in 1982; TARP). U.Va. Grad(Quote)
Angus says:
Remove yourself from your echo chamber. If you think all opponents of the bill want government slashed in size, you are fooling yourself. Yes, a majority of Americans opposed Obamacare, but a significant portion of the opposition is because Obamacare did not go far enough and implement nationalized health care. A majority of Americans favor either the bill just past –or– favor a bill creating an even bigger government role in health care. Angus(Quote)
Hans Bader says:
Nonsense. All of the Raich dissenters — three of them — would strike down the individual mandate, since it is far more dubious to regulate INACTIVITY under the Commerce Clause (refusal to buy health insurance) than activity that is arguably economic (cultivation or receipt of a commodity like pot).
Certainly, that is true of Justice Thomas.
The idea that the Supreme Court would unanimously uphold the individual mandate is fanciful.
And United States v. Morrison, 529 U.S. 598 (2000) does say that Congress can only regulate economic activities under the Commerce Clause.
A young healthy person’s refusal to buy health insurance is inactivity, not economic activity. As a young man, I went years without ever buying insurance, using any medical care, going to the doctor, or using any drug, either over the counter or prescription.
[OK Comments: Hans, I think it’s fair to say that we have extremely different senses of where the Supreme Court is on federalism issues.] Hans Bader(Quote)
Steve says:
It’s up to you, of course, but I think you could persuade more people if you ramped up the rhetoric a bit.
Hey, it’s not actually my rhetoric. It’s not really Prof. Barnett’s cup of tea either, but I was trying to capture the spirit of some of his more bug-eyed posts. Steve(Quote)
Rafi says:
I understand that you feel this bill is an expansion of the government, and I understand that you feel that the expansion of government makes men less free...
But I think you fail to appreciate what true ‘slavery’ is and was. The comparison with Dred Scott is embarassing.
PS — Yes, I know your comparison was focused on the fact that Dred Scott was overturned... but we remember Dred Scott because it was overturned by force of its moral wrongness, the Civil War and a Constitutional Amendment. Rafi(Quote)
JeffH says:
Of course, only one of the three Raich dissenters is still on the Court (Thomas). Rehnquist and O’Connor are no longer there. JeffH(Quote)
Anonsters says:
Don’t even try. The people who make such comparisons are utterly tone deaf. It’s the same as those who tried recently to argue that pro-choice as a political position is merely an attempt to eradicate the black population. I doubt anyone other than those who make such statements take them seriously. Anonsters(Quote)
Andrew says:
Orin, if you get a chance, please clarify this: “I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause.” Do you mean original meaning, or original expectations, or something else? These are very different things. Andrew(Quote)
Anonsters says:
Regardless of whether the Court will strike down the individual mandate, I’ve begun to be more sympathetic to Sandy Levinson’s take on things:
http://balkin.blogspot.com/2010/03/does-health-bill-vindicate-constitution.html Anonsters(Quote)
Nunzio says:
I don’t know. After Obama showed them up at the state of the union, maybe they will exact their revenge on him.
Or perhaps they will throw a bone to those who don ‘t want to buy health insurance by holding that they can’t be forced to be a policy unless it pays for medical marijuana. Nunzio(Quote)
JeffH says:
I’m going assume that you don’t see the irony in your last two posts. You decry over the top rhetoric (like comparing Raich to Dred Scott) in one post, while linking positively to a post that claims 1) a bicameral legislative system is the product of a “radically defective Constitution that continues to be taking us over the cliff” and 2) we should all be grateful that the Tea Partiers haven’t started assassinating people yet. Is it your opinion that the former is unacceptable rhetoric, but the later is perfectly acceptable and rational discourse? JeffH(Quote)
jrose says:
Only Thomas is still on the Court. So, it’s at most 6–3 in favor of the mandate, and up to 8–1 (I agree if the case was ever heard, Thomas will dissent). jrose(Quote)
yarrrrr says:
Hmm, this UPI article seems more optimistic about a challenge...
http://www.upi.com/Top_News/US/2010/03/22/US-Supreme-Court-Challenges-could-burst-healthcare-triumph/UPI-53811269283884/ yarrrrr(Quote)
jmaie says:
Wouldn’t it make more sense for Congress to just order people to engage in healthy activity, check them annually, and fine them if their condition deteriorates below an (age adjusted) mean?
Who says it’s an either-or situation? jmaie(Quote)
Andrew says:
Scalia, Kennedy, and Thomas were all in the majority in both United States v. Morrison and United States v. Lopez. Add Roberts and Alito, and you get a majority. That’s not a prediction, just an observation. Andrew(Quote)
Doc Merlin says:
‘(d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and’
So if you were on the SCOTUS now would you repeal repudiate modern commerce clause doctrine? Doc Merlin(Quote)
Anonsters says:
I’ll take them in reverse order.
Re: Thankful that Tea Partiers haven’t tried assassinating people. And for that matter, see Kopel’s earlier post “The Stamp Act” and comments therein. So being thankful that Tea Partiers and their ilk haven’t actually resorted to violence yet is not over-the-top rhetoric, given that Tea Partiers and their ilk have been flinging around threats and innuendos of violence quite freely.
As for (1), it’s not over-the-top rhetoric to claim that the Constitution is defective. It’s Sandy Levinson’s position. He has arguments for why that is so. Granted, you won’t find all the arguments in that post that I linked to. But if you take a minute to look around the intarwebz for things Sandy has written, you’ll find plenty about it, I’m sure. I have begun to be more sympathetic to his arguments lately. Anonsters(Quote)
Conrad Bibby says:
@Angus: I’m not sure what your perception of vast popular support for a major expansion of govt power is based on. I don’t see much evidence that the people taking to the streets in protest of Obamacare are doing so because the bill doesn’t go far enough.
Neverthless, I try to keep an open mind. Therefore, perhaps you can suggest to me a better example than Obamacare of an instance where a large segment of the population (whether or not a majority) believed that Congress had exceeded its proper constitutional authority in enacting a piece of legislation? Conrad Bibby(Quote)
MaryG says:
But I think you fail to appreciate what true ‘slavery’ is and was. The comparison with Dred Scott is embarassing. PS — Yes, I know your comparison was focused on the fact that Dred Scott was overturned... but we remember Dred Scott because it was overturned by force of its moral wrongness, the Civil War and a Constitutional Amendment.
Oh, go take an African-American studies class, Mr. Sensitive. The point is liberty. The point is, it is morally wrong to make men dependent and less free.
I feel strongly about this, and am not so PC as to make the obvious comparison: things truly change. This bill, this ain’t it. Get over your embarrassment soon; we can’t handle much more of this historic change to appease your moral conscience. MaryG(Quote)
Orin Kerr says:
On the other hand, Sabri v. United States was 9–0 in favor of the government. Justice Thomas concurred, but he still voted for the government. Orin Kerr(Quote)
Stephen Lathrop says:
What if a Court decision striking the individual mandate opened the shortest route to single payer? Striking the mandate would cripple the financial underpinnings of legislation that seems destined to become politically bulletproof, like Social Security and Medicare.
If Democrats were in office when the court acted, wouldn’t they pass single payer forthwith, via reconciliation if necessary?
If Republicans were in office they would probably be stuck. Passing single payer would be anathema, but repealing Obamacare because it was fiscally crippled would be political suicide. Democrats would campaign against stuck Republicans, and maybe win. Then single payer.
So here’s the question for the Court watchers. Is the possibility of a practical scenario like that something that might lead the Court to reject the case? Stephen Lathrop(Quote)
Orin Kerr says:
MaryG:
If you would like to comment here, please be civil. Comments like, “Oh, go take an African-American studies class, Mr. Sensitive,” are not civil.
And I’ll broaden it to other commenters, too: Please, folks, be civil — even when you think other people are saying things that are wrong. Orin Kerr(Quote)
Doc Merlin says:
Congress is espressly given power to do this sort of thing in the constitution.
Under Article 1 section 8 of the constitution:
‘To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress’
Requiring people to buy arms would fall under “organizing, arming, and disciplining”.
Before FDR, the parts of the constitution that delineated power were more important, but now, because of modern commerce clause interpretation they are basically meaningless. Doc Merlin(Quote)
Anonsters says:
Orin, you bastard, stop trying to tyranically censor us!
But seriously, did you respond to this somewhere and I just missed it, because I’d be interested to know what you actually think:
In other words, how much do you buy into the role of law professor/legal scholar as dispensing normative prescriptions? I get the sense that you don’t really buy into it all that much, but I can’t tell for sure. Just curious. Anonsters(Quote)
David Sucher says:
Thank god for a rational conservative, even though I disagree with him in substance on the health care issues. It is just so good to hear a conservative get realistic and go beyond happy-talk.
If we had more conservatives like Orin we’d have a thoughtful, legitimate two-party system. David Sucher(Quote)
Orin Kerr says:
yarr:
The author of that piece, Michael Kirkland, has beat that drum before. Orin Kerr(Quote)
yarrrrr says:
So what? yarrrrr(Quote)
JeffH says:
What makes it over the top is saying that the Constitution is “taking us over a cliff.” The obvious implication being that the country will be destroyed or seriously damaged if we don’t amend the Constitution to eliminate the Senate. Sorry, that’s completely insane.
You concern for the President’s well being is admirable. I’m sure you were similarly concerned about threats against our former president. (google search)
Sorry, but threatening signs at protests are nothing new. An assumption that people opposed to a certain government act want to kill the President based on a few signs is completely detached from reality. Apparently, people who make ridiculous comparisons are only “tone deaf” when they take a ridiculous position you happen to disagree with. Silly comparisons and outrageous rhetoric that you agree with are just “positions” and “arguments.”
Yes, Mrs. Levinson is perfectly capable of making rational arguments. That’s what makes that post you link to all the more shameful. Once you’re claiming that the country is going to be destroyed if we don’t amend the Constitution and abolish the Senate, and accusing people who are opposed to you of wishing harm to the President, you’ve left the realm of rational discourse and sailed off into the land of hyperbole and rhetoric. JeffH(Quote)
steve s says:
The individual mandate idea was created by conservative Wharton economist (?) Mark Pauly for the Republicans for their counter to the Clinton plan. They apparently thought it was Constitutional then but not now? Does the meaning of the Constitution change?
http://www.pnhp.org/news/2010/february/mark-pauly-didnt-move-the-center-did steve s(Quote)
Andrew says:
The federal government had the requisite power in the Sabri case under the Spending Power combined with the Necessary and Proper power. The Commerce Clause really had very little to do with it, as the Sabri Court explained:
Also, none of the parties in Sabri requested reconsideration of any of the precedents upon which the Sabri decision relied. Am I persuasive, or what? Andrew(Quote)
Orin Kerr says:
I’m not entirely sure I understand the question. It seems to me, though, that what law professors tend to do is have particular theories of what judges should do, and then have answers to what judges should do if judges followed their particular theory. I think it’s totally legit for professors to say, “based on my theory of the Constitution, the result is X.” But I personally find it kind of annoying when professors leave out the fact that they’re applying a contested theory when making those sorts of statements. Orin Kerr(Quote)
Orin Kerr says:
Andrew, what?
Seriously, though, having spent a ton of time in the last few months engaging with commenters defending my prediction that the Supreme Court would not overturn the Slaughterhouse cases and revive the PorI clause, I don’t think I’ll spend the equivalent time defending my view that the Supreme Court won’t strike down the individual mandate. Consider them both just predictions: In both cases, we’ll find out eventually what the courts will do. Orin Kerr(Quote)
Anonsters says:
See Schlag’s “Normative and Nowhere to Go.” (PDF Warning.) Anonsters(Quote)
Nunzio says:
Sandy Levinson was pretty unhinged over the Bush v. Gore decision. He’s interesting but pretty over the top. Nunzio(Quote)
Anonsters says:
Yes, he can be over the top.
Although I wouldn’t call his criticisms of the Constitution “over the top” per se. Anonsters(Quote)
DangerMouse says:
Obviously the individual mandate is unconstitutional. The individual mandate requires all persons to buy insurance, as a condition of being alive and legally in the U.S. Under what system of liberty is it possible for a government to force you to pay merely to merely exist alive and in the country? If upheld would mean that the government has the power to order you to give all your money away to someone else as a condition of being alive and legally in the U.S.
There is no way that this sort of thing could possibly be squared with a government of limited powers that was crafted by the Framers. This is slavery, pure and simple. DangerMouse(Quote)
Orin Kerr says:
yarr: “So what?”
I suppose I could ask the same question of your original comment. Why does it matter that a reporter at UPI seems to believe that the challenge stands a significant chance of succeeding? Orin Kerr(Quote)
Andrew says:
Since you brought that up, I still have no clue why none of your blog posts has once acknowledged the argument of Respondent NRA and multiple amici that the Court does not need to overturn Slaughterhouse in order to apply the 2A against the states via the P or I Clause. Anyways....
It seems a little weird to discuss predictions without getting to the merits of a case, as if the Justices really do not (or should not) care about the merits. But maybe that’s just me. Andrew(Quote)
Steve says:
UPI is under common ownership with the Washington Times; I can’t understand why anyone would regard them as less than an unimpeachable source. Steve(Quote)
yarrrrr says:
What if the individual mandate is the conditioning for single payer? yarrrrr(Quote)
Angus says:
United Press International is no longer a legitimate news organization since being bought by Sun Myung Moon’s Unification Cult. Using a UPI article as an authoritative source is akin to using one from WorldNetDaily or Democratic Underground. Angus(Quote)
leo marvin says:
I don’t want to make too big a deal of this, since you’ve candidly admitted before that your boomer bugaboo isn’t completely rational, but aren’t the boomers, all of whom are or soon will be on medicare some of the least beneficiaries of this legislation? leo marvin(Quote)
Brandon Combs says:
I, too, was fortunate enough to be present at the orals. If there was anything to take from March 2 it was that the originalist approach may be exchanged for a consequentialist one where convenient or more comfortable.
Brandon Combs(Quote)
Angus says:
You are assuming that the Tea Party people reflect the majority view in the nation rather than just being minority loons who yell loudly. Angus(Quote)
Mike McDougal says:
Give it a few years. Mike McDougal(Quote)
Mike McDougal says:
Awesome. Another constitutional provision that means nothing. Mike McDougal(Quote)
MaryG says:
You know Orin, if you’re going to play the “Be civil card” — then at least look at what I was responding to:
“But I think you fail to appreciate what true ‘slavery’ is and was. The comparison with Dred Scott is embarassing.”
and
“Don’t even try. The people who make such comparisons are utterly tone deaf. It’s the same as those who tried recently to argue that pro-choice as a political position is merely an attempt to eradicate the black population. I doubt anyone other than those who make such statements take them seriously.”
Now did I go crying to the comment moderator that he needed to protect my feelings by telling others to “Be civil”? No, I merely responded in tone. Why, pray tell, do you think on this particular topic, some earlier commenters need their sensitivities shielded? Because it has racial content?
Why not sign off and go spank your wife, before reprimanding particular commenters to “Be Civil”? Because I’m curious exactly what needs your selective admonitions are personally meeting for ya. Hmmm... (must be the Mary handle, eh?) MaryG(Quote)
MaryG says:
“If you would like to comment here”
When you put it that way, I don’t think I would. Let’s just let the Sensitive Boys keep their exclusive Club without the Mary’s around, eh? ;-) MaryG(Quote)
Hudson Hornet says:
The individual mandate does not say that you have to buy insurance as a condition of being alive and legally in the United States. If you don’t buy insurance, I promise that you will not be put to death or deported, no matter what Glenn Beck says.
The individual mandate says that if you don’t buy insurance, you will have to pay a tax. Or if you do buy insurance, you won’t have to pay a tax. Neither is distinguishable from saying if you buy a house, you will get the home mortgage tax credit. Or if you don’t buy a house, you will pay higher taxes. Does that mean Congress can force me to buy a house?!? That’s fascism!!!
There is simply no way to distinguish the so-called ‘mandate’ from any tax-incented behavior, or tax-disincentivized behavior, that Congress has approved in the past 100 years. You may not like the behavior they want to incent, but that doesn’t change the outcome of the analysis. Hudson Hornet(Quote)
Andrew says:
That’s certainly one way to look at it. Another way to look at it is that the power to tax, under the Sixteenth Amendment, does not include the power to fine any and all behavior that Congress dislikes. Andrew(Quote)
Christopher Cooke says:
Hudson, Congress can’t force me to pay income taxes because Ohio is not a state. Besides, people in Texas and Iowa won’t have to worry because they will be seceding soon enough, from what I read in the papers. Christopher Cooke(Quote)
Orin Kerr says:
MaryG,
I have no idea if you’re a man or a woman, so I’m not sure why you think this is about gender. But I agree with your view that it’s better that you not comment here: I’ll consider you banned, and we can go on from there. Orin Kerr(Quote)
JP says:
Professor Kerr says the States’ challenges to the Healthcare Bill will never reach the Supreme Court. Somebody please remind me why the States won’t be able to sue to enjoin enforcement directly in the Supreme Court, per Article III’s original jurisdiction clause. (Read: “In all cases . . . in which a State shall be a party, the Supreme Court shall have original jurisdiction.”) I’m not trying to be facetious here; I know there’s an answer. (I’m guessing it’s the same answer as to why an Average Joe who gets beaten up by the State Police can’t sue directly in the Supreme Court on a 42 U.S.C. 1983 / 14th Amendment cause of action.) I just can’t for the life of me remember the answer. JP(Quote)
yarrrrr says:
Interesting links...
What would happen if people just refused to buy health insurance even if a law ordered them to?
http://www.slate.com/id/2247580/
Can the States Nullify Health Care Reform?
http://healthcarereform.nejm.org/?p=2967
yarrrrr(Quote)
JP says:
Sorry, I misspoke. Professor Kerr said he *doubts* the case will reach the Supreme Court. The question still stands though. JP(Quote)
yankee says:
I agree with many of Levinson’s criticisms of the Constitution, but for many years his #1 argument that the Constitution was hopelessly broken was that George Bush was still President. So yeah, over the top. yankee(Quote)
Andrew says:
This is from the Cornell website:
So, “original jurisdiction” does not mean “exclusive jurisdicition.” Andrew(Quote)
JB says:
At this time are there any real limits to Congress’s power under the Commerce Clause? I mean that sincerely. Are there any actual limits or is it really just a blank check for Congress to do whatever it wants. JB(Quote)
shipwreckedcrew says:
I just don’t see the basis to compel a citizen to contract with a private company under threat of monetary sanction or jail. How is that regulating the commerce among the states?
It comes down to an order from the government that a free citizen must part with his/her money to a private entity in exchange for a good or service they may not want.
How do you compel a Christian Scientist to have health care coverage, when they reject most medical treatment? If you carve out a religious exception, then you have undermined the Commerce Clause basis for the statute. shipwreckedcrew(Quote)
JP says:
Fair enough. But even assuming the original jurisdiction is concurrent, what’s keeping cases with States as parties from being filed in the Supreme Court? There’s got to be something else. JP(Quote)
Hudson Hornet says:
Yes, it does. At least if the behavior Congress dislikes is not otherwise constitutionally protected. Discouraging conduct through the tax code may be bad policy, but its not unconstitutional policy. We aren’t talking about taxing your right to speak freely or to purchase a gun.
Furthermore, there is no practical difference between Congress increasing your income taxes and handing the delta to an insurer to cover you, and Congress saying that if you don’t buy insurance, they will tax you and hand that money to an insurer. One may look different politically from the other, but they are the same thing. Hudson Hornet(Quote)
Andrew says:
From the same source: “Exercise of its original jurisdiction is not obligatory on the Court but discretionary, to be determined on a case– by–case basis on grounds of practical necessity.1056″
So “original jurisdiction” is discretionary, and is not exclusive. Andrew(Quote)
Andrew says:
There are limits to what Congress can do via the tax code. And, the word “fine” is not a subset of the word “tax.”
It’s interesting to look at what the framers of the Bill of Rights thought about the ability of Congress to infringe rights via the tax code. So let’s flashback to 1789...they’re talking here about the proposed First Amendment:
So, it seems doubtful that they viewed the word “tax” as potentially meaning a “fine” for wearing a hat, or not wearing a hat. Andrew(Quote)
Arthur Kirkland says:
Would “the government can not force me to possess (or purchase) something” work as a defense to a public nudity charge? Arthur Kirkland(Quote)
Andrew says:
Orin, thanks for the update to your blog post. Maybe the Court won’t go beyond symbolic federalism, but I cannot believe that there aren’t some meaningful limits to what Congress can do under the Commerce Clause. For example, as we’ve discussed previously, I don’t think Congress can double all state prison sentences on the specious ground that doing so would keep prisoners from visiting shopping malls for a longer time.
I think it more likely that the Court would uphold the individual mandate as a tax, rather than as commercial regulation. But I would hope that the Court might practice some real federalism, instead of just the meaningless symbolic kind, and strike down the mandate altogether.
Yes it would, if you’re talking about the federal government. Sure, the federal government can ban public nudity in areas where federal power is plenary, like Washington D.C. But, as far as I know, the federal government cannot ban public nudity throughout the entire country. Andrew(Quote)
Adam Sullivan says:
I am looking at the Senate version vs what the House had put together, and the Senate version adds section 5000A to the Internal Revenue Code that is clear about what it is taxing — the individual.
It starts at page 321 of the download here http://dpc.senate.gov/dpcdoc-sen_health_care_bill.cfm
Am I reading this wrong, or did the Senate make the mistake of making this a capitation? So far in the Code it is clearly based on every individual and it is a penalty per individual. Here is how it is collected.
Yes — there all sorts of tax freedom cranks out there that claim that income tax is a capitation and then write such on returns and (when caught) go to prison.
But income tax is a tax on your income. This is, per the code, a tax on your body. Take the language on how the penalty is limited -
Right there we are taxing on a per head basis. That is a capitation.
They can’t do it this way per Article 1 Section 9. Just because the assessment/penalty is calculated using income, it is not a tax on income.
Had the Senate simply added a surcharge on income to everyone that could be eliminated with proof of an insurance policy, they’d be in the clear. But they didn’t. They chose to make an assessment / penalty on each resident of the country. Adam Sullivan(Quote)
Andrew says:
Adam, if you go to the link in Orin’s update to the blog post above, you’ll see that Orin argues the Court’s federalism cases are merely symbolic. Orin mentions that in Lopez, for example, Congress was easily able to rephrase the statute so that it passes muster.
In the present circumstances, I wonder whether the Court might do the same thing, i.e. strike down the statute while indicating that it could be easily rephrased to pass constitutional muster. But then the Senate might not have the 60 votes anymore to make the trivial correction.
Thus, symbolic federalism might have teeth. Andrew(Quote)
Adam Sullivan says:
Andrew
I was thinking along the same lines. The House did not have the same language for implementing the mandate, but both houses thought they had it covered by “making it an income tax” and the Senate’s wording (while fixable) isn’t an income tax at the moment IMO.
Do you (or anyone else) know if there is a severability provision that would allow the rest of the act to hold if the mandate were invalidated (with the idea that a “simple language fix” could make the law operable)? Adam Sullivan(Quote)
Andrew says:
Adam, I’m sure there’s a severability provision in there somewhere. But it may not matter.
If it’s phrased as a capitation, then it is unconstitutional because it’s not apportioned among the states. A court could say: “Sorry, Congress, but the mandate is completely unconstitutional unless you rephrase it as an income tax, which is a trivial change in language in accordance with our merely symbolic federalism jurisprudence. Until you make the trivial change, the whole mandate is dead.”
If the mandate goes away, then a person would be free to drop all insurance until he or she gets sick or injured. The band on discriminating against pre-existing conditions would therefore allow that person to get the needed treatment. If everyone did that, then it’s hard to see how an insurance program could stay in business. Andrew(Quote)
Doc Merlin says:
Depends on what the supreme court decides and who sits there. If you get libertarian or originalist judges on the court, then it will have a meaning, if you get leftist or judicially conservative judges then it won’t. Right now, as it stands congress cannot regulate non-economic activity under that clause, due to Lopez, but its been expanded so basically anything intrastate that is economic is covered. This may eventually change, depending on the make-up of the court. Doc Merlin(Quote)
Adam Sullivan says:
BTW — it would be interesting to see if there are any behavioral studies on how the Internet has altered interstate commerce.
Could one make a strong case that, what might have affected interstate commerce 25 years ago no longer would hit an actionable threshold?
I know — it would require revisiting settled ideas and that usually happens when the facts and the times make the precedent utterly unworkable. Just wondering out loud ... Adam Sullivan(Quote)
Er Obamas sundhedsreform forfatningsstridig? @ Punditokraterne says:
Doc Merlin says:
Taxing your right to purchase a gun is and was already done. The is why the NFA was originally a stamp tax instead of a restriction. Later as the commerce clause expanded in power, the issuing of stamps to new machine guns was ended.
Doc Merlin(Quote)
epluribus says:
Given that single payer would be virtually impossible to pass in the present political climate (it would be condemned as “European socialism,” the equivalent of British NHS, “a Marxist plot to destroy our precious bodily fluids,” etc.), how could health coverage be extended to the population generally without an individual mandate? I’m not saying there is no other way. I’m just saying that I haven’t been able to think of another way, and would like to hear other intelligent ideas on the subject. epluribus(Quote)
Guaman says:
I fail to see her/his sin. However, it is your house. This website is only mildly interesting. Now it’s obvious that it’s not all that open to a little spirited discourse, it’s not worth the click. Adios. Guaman(Quote)
jrose says:
Scalia in Raich: “Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.””
I predict Scalia’s going to vote for the mandate because as many have pointed out, the pre-existing condition regulations are undercut without the mandate. jrose(Quote)
Peter says:
If the penalties do in fact qualify as a tax, then I can see it being upheld. However, Orin doesnt explain why he thinks the law constitutes an exercise of the commerce power within the parameters of previous legislation. Orin, can you cite a precedent? An act of Congress requiring individuals to buy goods or services from a particular type of corporation that was upheld by the courts? I apologize if you have in one your posts, but I did not see it. Peter(Quote)
Floridan says:
How many of those AG’s are Republicans who opposed the very concept of health care reform from the beginning or are running for election/relection?
Florida’s AG, Bill McCollum, is running for governor and has an opponent in the GOP primary. Floridan(Quote)
Floridan says:
Under what system of liberty is it possible for a government to force you to pay . . .
My municipal govenment requires me to hook up to a private water system, contract with a private garbage collector and get my power from a private electric company. I cannot be exempted by drilling my own well or carrying off my own garbage, although I suppose I could spend a fortune to install solar collectors for my electricity. Floridan(Quote)
Rodger Lodger says:
My gut reaction is that given the uproar over Citizens United the Court would hesitate to knock out a huge social welfare program out of fear of a real practical backlash against the Court’s composition or even jurisdiction. Rodger Lodger(Quote)
richard james says:
The virginia AG appeared to suggest that they would use Roe v. Wade as a precedent in their suit against the HCR individual mandates. The irony is just....depressing richard james(Quote)
Calderon says:
Like Orin, I doubt a challenge to the individual mandate would survive. But, just as importantly, I doubt even a successful challenge to the individual mandate would have any beneficial effect from a libertarian perspective.
To begin with, as the Slate article cited above summarizes, while the bill has a superficial fee/tax for people who do not buy insurance, many of the typical ways of enforcing such a fee/tax are prohibited under the bill. Thus, the fee/tax may be more or less symbolic, which in turn means the individual mandate itself is symbolic. If this is true, then knocking out the individual “mandate” would do nothing since there is no mandate to start with.
But let’s suppose there is an actual mandate that can be enforced through some means. If that is declared unconstitutional, then what? The major aspects of health care reform like guaranteed issue, subsidies, penalties on companies that don’t offer insurance, and all the other myriad provisions would still be in place.
There would appear to be two possible effects if the mandate were unconstitutional. First, to the extent the various carrots in the bill to buying insurance such as subsidies are sufficient to buy get people to buy insurance, the mandate was unnecessary. Thus, getting the mandate declared unconstitutional would be pointless because to that extent because people would buy insurance any way. Second, to the extent the mandate actually was important in requiring people to buy insurance, knocking it out would introduced potentially severe adverse selection effects. The young and healthy — and their premiums — would not be insured or pay for insurance (unless already covered through their jobs or some other means), and would join only when they came down with a serious sickness. This would wreak havoc on insurers’ bottom lines. Either insurers would have to significantly raise premiums — leading to more cries about price gouging and how expensive the US health care system is — or they would go into receivership and their insureds would be left without coverage. Either one of these effects would be more likely to cause more health care reform and movement to single payer, rather than something positive from a libertarian perspective.
The only way I could see a positive effect from a successful constitutional challenge is if the decision comes down by Nov. 2012, and Republicans control the House and Senate at that time. The bill’s main provisions don’t start until 2014, so it’s questionable how much of an entitlement effect there will be before then, leaving Republicans a narrow window of reversal. That said, I’m very skeptical that any Congress member has the position that “with the individual mandate, I’m in favor of this bill, but without it I am opposed.” But the only way a successful legal challenge could cause a repeal of the bill is if some number of Congress members necessary to vote for a repeal had that position. Calderon(Quote)
Below The Beltway » Blog Archive » Will The Courts Strike Down ObamaCare ? Don’t Count On It says:
Cox says he’ll challenge health care law « The Michigan Lawyer says:
CVMe says:
Isn’t saying, “This has a 1% chance of making it to the Supreme Court” meaningless as a prediction? If it never gets there, Orin can say he was right, and if it does he can say he acknowledged a very slight chance that it might, and that small chance has been realized.
That said, Orin is 100% correct that it’s very unlikely healthcare reform will be reviewed by the Supreme Court (see what I did there?). CVMe(Quote)
epluribus says:
Orin Kerr is one of the most reasonable bloggers on this site.* The poster who was banned went out of his/her way to insult other posters and, when called on that, to personally insult Orin with a spurious allegation of sexism. That adds nothing to the value of the discussions here.
There are some others–I won’t try to compile a complete list. epluribus(Quote)
Roger the Shrubber says:
Agreed. Horrifically overwrought language is a hallmark of libertarian debate. Taxation is “theft,” regulation is “slavery,” politicians you disagree with are “tyrants,” donating money to your favorite Congresscritter is “striking a blow for freedom,” etc.
Only people largely unaccustomed to rampant theft, slavery, and tyranny would tarnish the brand of those words quickly. Roger the Shrubber(Quote)
epluribus says:
The Weather Channel says there is a 40% chance of rain in my part of the country today. Is that meaningless? I’ve noticed rather indiscriminate use of the word “meaningless” lately. Is that usage itself meaningless? epluribus(Quote)
Roger the Shrubber says:
Further to my point: Yes, HCR is exactly like a system in which people are chattels, are beaten and branded, are manacled and packed into ships for weeks on end, and have their families sold and scattered to the winds. No difference at all. Roger the Shrubber(Quote)
epluribus says:
Roger, I think you may understand the comment about slavery. It was not made in reference to “regulation” as “slavery.” It referred to black chattel slavery, which was what Dred Scott was subject to. The banned poster was the one who injected the Dred Scott case into this discussion. Black chattel slavery as it existed at the time of Dred Scott is not the equivalent of “regulation.” Generally, I agree with your points that hyperbole seems to be the order of the day in political discourse today. On Sunday, I heard a Republican congressman from California describe the bill that just passed the House as “Marxism” and “totalitarianism.” People who lived unders Stalin might not agree. epluribus(Quote)
Joseph Slater says:
says he’s filing a challenge to the soon-to-be law in federal court. It’s chances of success? About as good as the Lions’ chance to win the Super Bowl, says Orin Kerr at The Volokh Conspiracy.
As a long-time Detroit Lions fan, I’m often struck by the regular use of the Lions-as-metaphor-for-futility on the blogosphere in discussions of politics and other issues that have nothing to do with football or even sports. It’s nonpartisan and I can’t say it’s unfair, but jeez it’s depressing. Although this appears to be a paraphrase and not something Orin actually said. Joseph Slater(Quote)
epluribus says:
Roger, your latest post indicates you understand quite well the difference between regulation and black chattel slavery. If I missed that originally, it was my fault. epluribus(Quote)
DangerMouse says:
Andrew: If the mandate goes away, then a person would be free to drop all insurance until he or she gets sick or injured. The band on discriminating against pre-existing conditions would therefore allow that person to get the needed treatment. If everyone did that, then it’s hard to see how an insurance program could stay in business.
Andrew, people are already projecting that because of the ban on pre-existing conditions, premiums will skyrocket. For a middle-class person who is just outside the range of the subsidies, it might make sense to not purchase insurance and pay the fine to the government for failing to have coverage. During that time, you can bank away cash that you would’ve used to buy insurance. Then, when you get sick, you purchase the insurance (they can’t turn you away b/c of your pre-existing sickness) using the banked cash to hold you over until your policy is enacted. People are estimating that paying the fine to the government is much more economical than paying the skyrocketing premiums that they expect. DangerMouse(Quote)
DangerMouse says:
You know, when your argument is that the bill is not EXACTLY like slavery, that’s not a good thing. Like all liberal legislation, it treats the People like children who are incapable of self-governance and self-control. This bill is much worse, though.
Why the hell should I get up and work every day, slaving away at a job, so the government can take my money and use it to buy insurance for some dope-smoking hippie slacker who paints fecal pictures of Jesus in his spare time? Why the hell should I bother if that’s what they’re going to do? DangerMouse(Quote)
epluribus says:
Yes, I’ve heard this argument. Paying a fine and getting nothing is much better than paying a premium and getting insurance coverage. It makes sense to me. I never did like insurance much anyway. Then if I have a heart attack or get major injuries in an automobile accident, the hospital will welcome me with open arms and get right to work treating me. I’ll apply for insurance that will cover me retroactively, and I’ll be sitting pretty with all the money I’ve saved. epluribus(Quote)
Liat says:
Policy preferences completely aside, this a lot closer to Raich than to Lopez or Morrison. Guns near schools and sexual assault are not part and parcel of a broad regulatory framework for economic activities (though they do affect interstate commerce in a more attenuated way, as does virtually everything). The Raich law was part and parcel of a broader market regulation of drugs (or so said Scalia), and the individual mandate is definitely part of a broader market regulation of health insurance. The Lopez law was a safety reg, not part of regulating the market wherein guns are bought and sold.
I would support the individual mandate as a policy matter, but I agree that there are some viable constitutional arguments against it. However, under current precedent I think these lawsuits are sunk.
Don’t know where you guys are pulling the idea that somehow Americans are overwhelmingly rejecting this bill as congressional overreach. A lot don’t like it, for certain, but every poll I’ve seen breaks it even (or within the margin of error). And a lot of the concern is about affordability, not the individual mandate. A lot of opposition is also animated by the horsetrading process, which does not automatically imply opposition to the individual mandate. Liat(Quote)
Just Dropping By says:
Admitting it is the first step to getting help. Just Dropping By(Quote)
DangerMouse says:
Insurance that costs $15,000 a year for a 25 year old single person? Yeah, that guy is going to pay the fine. Premiums will go up a LOT, now that the insurance companies have to cover everyone. Young people don’t need the kind of medical care that older people require, and many people who do not engage in risky activity can go for 5–10 years without the need for a doctor at all (it’s been over a decade since I needed any significant medical treatment). Those young people will pay the fine. DangerMouse(Quote)
Joseph Slater says:
No, no, no, this year will be different! Maybe Barry Sanders will unretire, and, um . . . Joseph Slater(Quote)
epluribus says:
Of course, the more policies they sell, the higher the prices for each policy will be. Economies of scale are figments of the imagination. Notice how the price of computers went up and up and up the more units were sold? Insurance as a pool of risks is a scam. The more people contribute to the pool the higher the cost to each contributor. I know, basics economics tells us otherwise, but who pays any attention to basic economics when political points are to be scored? epluribus(Quote)
Desiderius says:
epluribus,
Care for a bet on which way premiums will head?
See, for instance, Massachusetts.
Of course you could press-gang a few more hundred million more healthy young people, in, say, Brazil. into your system and I think that might actually lower your premiums, if you can restrict their freedoms enough. Until of course they age as well.
The ponzi game just gained a few more years, but the day of reckoning cannot be postponed forever. Desiderius(Quote)
Don Miller says:
I would argue that the US Government has a constitutional power and responsibilty to provide for the defense of the country. If Congress felt the best way would be to require all militia members to provide their own weapons, it was arguably in their explicit power to do this. There is also a common law history from Europe of government also being able to require people to maintain weapons for defense of the nation
There is no similar explicit Constitutional doctrine that would allow for individual mandate to provide health insurance Don Miller(Quote)
epluribus says:
Desi, you are so right. I just loved it when the Republicans were in power and all the prices went down. Insurance premiums were plummeting. I know, this may seem ahistorical, actually mendacious, but who worries about being ahistorical or mendacious when political points are being scored? epluribus(Quote)
epluribus says:
Desiderius:
Yes, Desi, government is a Ponzi scheme. You are brilliant to notice that. Government takes people’s money on the fraudulent promise that it is being invested and will provide a good return for them in the end. In fact, it does nothing with our money. It doesn’t provide for our defense, or regulate the currency, or build roads or bridges, or make and enforce rules for airline safety, or provide an immigration and naturalization service, or provide retirement incomes and needed medical care for those over sixty-five, or make sure that we have pure, clean drinking water all over the country, or regulate the securities markets, or take care of national parks and forests, or gather information on people and groups that threaten our national security, or maintain courts of justice, criminal prosecutors, and prisons, or provide medical care for veterans through government-run hospitals, or aid education. It does none of these things. It just takes money in, sits on it, and waits until the fraud is discovered and collapses, just like Mr. Ponzi did. I love your metaphor. epluribus(Quote)
epluribus says:
Would you also argue that the US government has a constitutional power and responsibility to regulate interstate commerce? Do you believe that the health insurance industry in this country, which currently costs the American people $2.4 trillion per year and is predicted to go up to $4.3 trillion per year in eight years, is part of interstate commerce? epluribus(Quote)
Sara says:
Huh? Under this law, a 25 year old is either on his parents plan or, if healthy and insuring himself, only is required to carry catastrophic coverage. Sara(Quote)
desiderius says:
Sara,
“only is required to carry catastrophic coverage.”
Oh. My. God.
Who wants to break it to her? desiderius(Quote)
desiderius says:
epluribus,
“Government takes people’s money on the fraudulent promise that it is being invested and will provide a good return for them in the end. In fact, it does nothing with our money. It doesn’t provide for our defense, or regulate the currency, or build roads or bridges, or make and enforce rules for airline safety, or provide an immigration and naturalization service, or provide retirement incomes and needed medical care for those over sixty-five, or make sure that we have pure, clean drinking water all over the country, or regulate the securities markets, or take care of national parks and forests, or gather information on people and groups that threaten our national security, or maintain courts of justice, criminal prosecutors, and prisons, or provide medical care for veterans through government-run hospitals, or aid education. It does none of these things. It just takes money in, sits on it, and waits until the fraud is discovered and collapses, just like Mr. Ponzi did. I love your metaphor.”
That which you list accounts for an ever shrinking proportion of the budget, and most of the heavy lifting in this bill also takes place off-budget, what with unfunded mandates galore for states, individuals, employers, and health-care providers.
Lassoing in the young, working, and healthy, who are already being burdened with crushing levels of debt, employment-sapping economic uncertainty, and regressive payroll taxes to finance the indolent, double-dipping, covering-their-fat-asses Boomers, to suck another few hundred billion out of them with nothing in return is just par for the course.
Do you imagine that there is any way that these entitlements could possibly be there for them, even if they did want anything more than to be left the hell alone? There’s this thing called accounting. It doesn’t compute. desiderius(Quote)
Urso says:
“Insurance that costs $15,000 a year for a 25 year old single person?”
If you just make up numbers off the top of your head you can make anything look bad. But why stop at the already clearly ridiculous figure of $15,000? Why not claim that the 25 year old will pay $150,000 per year? Or $1.5 million?
When I was 24–25 I paid for my own health insurance. the yearly premiums were roughly $1700–1800. Urso(Quote)
Joe says:
At this time are there any real limits to Congress’s power under the Commerce Clause?
No.
The Constitution has simply become an intellectual play thing.
The fact that lawyers can even debate with a straight face that “Congress shall pass no law” doesn’t really mean that tells you everything you need to know.
(And I am so tired of the, well a city or state can.... argument. The main body of the US Constitution and the first amendment specifically apply to the federal government, not the states. There are a whole lot of things states can do that the US Government is prohibited from doing. But the obvious apparently isn’t good enough in the legal profession.) Joe(Quote)
Drew says:
While true the bill overall may not be overturned that is missing the point. This bill can be made swiss cheese by the courts. Just striking down the individual mandate does not strike down the whole bill. So in essence the whole bill probably won’t be overturned. But it can be weakened by courts and further neutered by lack of funding and future legislation. Drew(Quote)
Jaclyn says:
From Steven: I think an 8–1 decision would be clarifying, but I also don’t expect the day to ever come.It’s at least somewhat clarifying to see the same people who view the right-to-privacy cases as illegitimate argue that it’s unconstitutional for the government to tell them what to do.I believe it was my Property professor who repeatedly pointed out that it always depends on whose ox is being gored.I shudder to think of the tongue-lashing Orin will be getting from Randy over this post, though.
I don’t know of anyone, conservative or liberal, who believes that the Constitution and the Founding Fathers did not support a right to privacy (we do have the 9th amendment and like it!). The debate comes down to what should be covered under the veil of “privacy.” For abortion, pro-choicers believe that it’s a woman’s body and she should be able to make her own medical decisions. Pro-lifers believe the same, except that they do not believe that a fetus is just part of a woman’s body, but a separate being with its own rights which must be protected. You can believe that privacy should protect you from illegal search and seizure while also believing that it does NOT give you an absolute right to do anything in your home, like cook meth. Jaclyn(Quote)
Jaclyn says:
“If Congress felt the best way would be to require all militia members to provide their own weapons, it was arguably in their explicit power to do this.”
Yes, but you neglect the fundamental point that Congress does not force you to join the military in the first place. There is a mandate on car insurance, IF YOU DRIVE A CAR ON PUBLIC ROADS, but even then, you only have to have liability insurance if you own the car outright. You’re not required to carry home insurance if you own your home in full. So I still don’t see how such a mandate could be upheld as constitutional. Even the CBO in 1993 raised constitutional objections. Jaclyn(Quote)
bflat879 says:
I’m not a lawyer and I don’t play one on television however, it appears to me the Federal Government has never regulated the insurance industry, which was supposedly one of the reasons they couldn’t for insurance companies to sell across state lines. There should be 2 facts here, one the 10th Amendment with the added fact that states now regulate insurance.
Secondly, buying auto insurance can only be forced on you if you want to drive a car. I’m sure there are many people in New York City, who do not drive a car, that do not have auto insurance, so that analogy is bogus.
Now, the court may refuse to look at this but, then again, they may want to clarify the commerce clause and, if they’re thinking of it, they’d better do it fast.
Finally, by shutting down parts of this law, the court could do the country a favor and force this puppy back to Congress and give Obama and the Democrats a chance to do it right. bflat879(Quote)
fresca says:
I am not a lawyer, but it seems odd that there is effectively no way to restrain a tyrannical federal government. What are the implications of calling for a constitutional convention? fresca(Quote)
Eric S. says:
I’m still not clear on why the Commerce Clause applies, as isn’t it a matter of Federal law that health insurance is NOT an interstate commerce activity? That’s why we have the current state-by-state patchwork mess, which, by the way, leads to the alleged monopolies by the insurance industry.
Furthermore, isn’t the Obamacare law is unconstitutional from the standpoint of it being originated in the Senate and containing taxation provisions? I thought the Constitution is pretty unambiguous that, if it raises revenue, it must originate in the House. Eric S.(Quote)
Matt says:
“I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause”?
So, the Constitution is simply a Rorschach test? I don’t believe you will find any court that will agree with you on that one.
Let me show you why the bill will most assuredly fail — courts love hypothetical’s, so here’s one.
A man is born in a cabin in Alaska, on land his family has owned for generations. The cabin is 100 miles from his nearest neighbor. This man lives by himself in the cabin. He lives his entire life on this land, providing everything he needs from what is on this land.
This law would allow this man to be fined, and jailed, simply for existing!
There appears to be 2 Constitutional clauses that people are using to show applicability.
1) The most common, the commerce clause: this will not work, the example above clearly shows not only no interstate commerce, it shows no commerce at all.
2) The general welfare clause: This on its face would seem more applicable, wouldn’t it? Why then isn’t it mentioned more then? That would because the general welfare clause is NOT about the welfare of individuals; it is talking about the welfare of the states. So, not only should the general welfare clause not be used to show that HCR is constitutional, it might be used to show just the opposite if the states can prove significant harm. Matt(Quote)
Benjamin says:
Don’t know about the odds being only 1% after all President Obama questioned the judgement of the Supreme Court on national television to the chagrin of 2 of the conservative judges who have voiced opinions on that decision. If that can be taken a salvo to start a fight between the 2 branches, what better opportunity for the court than passing judgement on Obama’s signature legislation. Even if they do uphold the Interstate commerce argument it would still be a way for the court to check Obama. Will they take it up over such petty issue, who knows but as a reminder it was a majority that reached that decision that Obama so nonchalantly questioned. Maybe they’ll just settle it in a steel cage.
@Steve
” It’s at least somewhat clarifying to see the same people who view the right-to-privacy cases as illegitimate argue that it’s unconstitutional for the government to tell them what to do”
Actually everyone accepts that the government tells you what to do through laws the issue is over the right to property which actually is in the constitution. The government can’t compel the purchase of a service based simply on you being alive. The inconsistency is on the part of those who claim a right to privacy and claim that the government can not get between a woman and her Doctor yet now want to have the government get between all women and men and their doctors. Or believe that a woman has a right to choose but not the right to choose not to be covered. BTW you do realize that this indirectly gives the government authority over abortions, wonder how that will pan out with conservatives in charge, especially considering that Obama is restricting abortion coverage through executive order which is just a slippery slope. Benjamin(Quote)
Christo says:
Of course, Congress isn’t requiring you to buy a house or own a house. They simply require you to own one in order to apply for the subsidy...er tax credit. The individual mandate is a requirement to hold insurance that meets the minimum standards. The penalty for not holding that insurance is a fine and/or jail. If you are in this country you must own insurance. It is therefore a requirement to hold residency and citizenship. So, why not mandate the purchase of other goods and services in a similar manner? If the various clauses truly mean nothing at this point, what are left with but tyranny? Christo(Quote)
Dave J says:
The sale of health insurance is an exclusively intrastate commercial activity regulated by the states. If no interstate commercial activity is involved, how can the federal health mandate be based on the Commerce Clause? Ironically, allowing interstate marketing of health insurance was a Republican proposal to reduce costs which the Dems ignored. Had they incorporated it into HCR, I think the constitutional footing of the personal mandate would have been significantly strengthened. Dave J(Quote)
memomachine says:
Hmmm.
So I’m barred by federal law from buying health insurance across state lines, and this is supported by the Commerce Clause.
And now I’m forced, by the Commerce Clause, to buy health insurance **within** a state.
Wow. It’s like the Swiss Army Knife of clauses. It’s a dessert topping *and* a floor wax.
Ultimately it appears the only true solution is to hang every member of Congress from those celebrated cherry trees in Washington. memomachine(Quote)
Benjamin says:
Whoops sorry Jaclyn just noticed you basically said the same thing Benjamin(Quote)
memomachine says:
Hmmm.
Ok so I see how this game is played.
I now plan on contributing money to the Republicans in the hope that, should they ever completely control the government again, they’ll pass a law requiring each person, as a condition of citizenship and lawful residency, to purchase a button from me.
Each button will be witty, artful and completely orgasmic. Or at least very profitable to me.
You folks? Who the hell cares. You’ll be buying my buttons. After that I can’t say I give a damn. memomachine(Quote)
Robert says:
I beleive that using the commerce clause to validate the individual mandate is a bogus argument for a couple of reasons.
One is that the individual mandate forces someone to take part in commerce so they can be regulated by the federal government. I understand that if you are particiapating in interstate commerce the government can regulate you. I don’t see any case law where the government has forced you to take part in commerce you may not want to take part in.
The other is that the commerce clause like all of the constitution has to be applied equally to all states. As it stands right now all states have their own restrictions to interstate insurance purchases. I for example in Washington can’t buy the same policy from the same company that someone in Texas can buy. It may have similar coverage with new regulation but it will not be an equal policy at the same cost.
The only reason I could see why the court wouldn’t take this is political and I think you are wrong on this. The opposition to this legislation is huge and it will continue to grow. Robert(Quote)
Eric B says:
It’s also interesting that you don’t appear to see that your argument cuts both ways. It’s clarifying that those who argue that right-to-privacy cases are legitimate (and thus the government does not have the right to tell people what to do), are now arguing that the government has the right to tell them what to do.
Strangely, there is a third, more consistently logical approach: the government simply doesn’t have the right. Eric B(Quote)
cpip says:
In 1792 they did. See text of the Second Militia Act in question here, part way down the page. Total conscription of every white male between the ages of 18–45 (certain occupations exempted), and all those men then required to provide their own equipment. cpip(Quote)
Phil says:
I guarantee that Obamacare will be undone. Social security and Medicare are underfunded by between $60 and $100 TRILLION, depending on who you ask. Obamacare will merely hasten the financial collapse.
Have a nice day. Phil(Quote)
lslincoln says:
Professor Kerr,
With the link from hotair, this conversation just became a whole lot more rhetorical and a whole lot less constitutional. Sad.
I wanted to touch upon the potential problem of the mandate lacking teeth. If the mandate can be justified under the commerce clause as part of the regulatory scheme necessary to counteract the removal of pre-existing condition bans, then it must necessarily be enforceable. Whether epluribus wants to admit it or not, if I am young and healthy and am given the choice of paying for a mandated insurance plan or being assessed a $750 fine that is unenforceable, I’m not going to buy in. I would be stupid to do so. The cost of the mandatory coverage is irrelevant, because it is de facto more expensive than an unenforceable fine. And my incentive for coverage? — Who cares! I can just wait until I’m sick or injured, and then buy in.
The real problem with this bill is not that it’s unconstitutional(though I agree that it IS unconstitutional under either the commerce clause or the general welfare clause), the problem is that it is untenable. Forcing insurers to cover all pre-existing conditions makes them insurers no longer. Now they are caregivers. And they will charge the full cost of care (spread out across all policy holders of course). As more and more preexisting conditions are covered and more and more healthy people engage in civil disobedience by not buying in and not paying the fine, please tell me how this is going to lower costs. All it will do is change people’s buying habits. Waiting periods on pre-existing conditions create an incentive for people to maintain insurance even while they are healthy. Remove those waiting periods, and I, for one, assure you that I will ONLY pay premiums when I need the coverage. lslincoln(Quote)
Charlie says:
This is why the states need to nullify Obamacare then leave it to the Feds to use the courts to try to get them to heel. Charlie(Quote)
Sacrastro says:
Wow, rent seeking! This is totally new, and is only a problem with health care! Sacrastro(Quote)
epluribus says:
No, of course not. Economists and actuaries tell us that it could be done by small adjustments in the benefits (like raising the retirement age a year or so for future receipients of Social Security) and small adjustments in the taxes (like a percentage or two over a few years). But you and I know better than all the economists and actuaries. They are lying to us. It can’t be done. We are doomed. Doomed, I tell you, until the Republicans get back in power and show us the truth and the way. I’m just sorry we have to wait until the fall elections to bring about this new millenium. It will be an Eden on Earth, just like the eight years between 2001 and 2009, when the national debt only went up eighty-seven percent. epluribus(Quote)
Jaclyn says:
Cpip: You’re right, and I knew about the draft/Selective Service when I wrote the post. However, that 1792 provision is no longer used (and it’s doubtful we’ll ever see a reinstatement of the draft in any future war, though it’s possible). Also, conscription is still a little different. It singled out men of a certain age, and recent drafts have only occurred in wartime. You’re not required to enter the military upon graduation, both men and women, as some countries do. Jaclyn(Quote)
epluribus says:
Dave J:
I live in Arizona and have health insurance issued by a company in Kentucky. It’s one of the biggest companies in the United States, doing business in many states. How do you define “commence among the several states” (Art. I, Sec. 8, clause 3)? The present national expenditures on health care are $2.4 trillion per year, to go up to $4.2 per trillion per year in 8 years. In the next ten years, national expenditures for health care will be between $30 and $40 trillion, if the present present system is reformed. All of that seems like interstate commerce to me. epluribus(Quote)
lslincoln says:
Isn’t it great how sarcasm is even better than facts and logic in a debate? Epic win, epluribus. Epic win.
You still have yet to respond in any way to the fact that removing the ban on preexisting conditions removes the incentive for healthy people (those who will supposedly drive down the cost of care) to buy insurance. I agree that the only way to make it work is to mandate it. But a mandate that is not enforced is no mandate at all. I suspect that Congress knew to some degree the fine line they were walking when they included this mandate. The tenuous Constitutional position is the reason for the very weak mandate. They are thus able to create the facade of sustainability while probably avoiding court challenges. Notice that they didn’t make the penalty imprisonment or an even greater fine. And notice they did not prescribe the manner of enforcement.
What they did instead was create a bill that has absolutely no chance of driving down the cost of healthcare. In responding, why don’t you skip the sarcasm and try to address my points. lslincoln(Quote)
Jilly says:
I am sorry you are just wrong.....our Constitution does NOT give Congress and the President the power to force us to buy a product because we draw breath..I think Robert’s argument is excellent..and you think the Supreme Court would or should hesitiate to get involved in a Constitutional issue that affects every man woman and child in this country because???....they have important bridge opennings to attend???....what??...really...what do you think they are supposed to be doing!!!!!!!Why would it be so shocking...they are one of the checks and balances set up exactly for the purpose of stopping unconstitutional laws and let me tell you... TIME TO CHECK! Jilly(Quote)
Onlooker says:
That was quite possibly the dumbest blog post I have ever read since the invention of blogging.
Allow me to restate the entire blog post in different words: “I predict something will not happen. I have no argument, reason, or logic behind this assertion. I don’t even like the conclusion. I am just making this prediction.”
This is a blog of lawyers? Ha ha ha ha. This blog post is an utter failure. Go back to your law school, give them your diploma, and have them run it through a shredder. It has no value.
And to actually make an argument, just read Lopez. The Supreme Court has already invalidated other laws for exceeding the Commerce Clause power. Having done that, they could do so again, especially when everyone agrees this law is unprecedented. Onlooker(Quote)
jeff says:
Virginia is going to declare that its courts do not have “Subject Matter Jurisdiction” over this bill. That means that anyone who breaks any federal law concerning it cannot be tried in Virginia, and police in Virginia will not be arresting anyone for it. There are many things that can be done in addition to throwing out the bill in the courts. jeff(Quote)
S says:
+
Not true that it’s intra-state. Most health insurance is already sold across state lines. S(Quote)
S says:
That would seem to violate the Constitution’s grant of concurrent jurisdiction to state courts. S(Quote)
WINDANSEA says:
public evenly divided on ObamaCare? Not! (average of all recent polls =10.5% AGAINST)
CP Average 3/3 — 3/21 — 39.7 50.2 Against/Oppose +10.5
CNN/Opinion Research 3/19 — 3/21 953 RV 39 59 Against/Oppose +20
CBS News 3/18 — 3/21 1059 A 37 48 Against/Oppose +11
Rasmussen Reports 3/19 — 3/20 1000 LV 41 54 Against/Oppose +13
FOX News 3/16 — 3/17 900 RV 35 55 Against/Oppose +20
PPP (D) 3/12 — 3/14 1403 RV 45 49 Against/Oppose +4
NBC News/Wall St. Jrnl 3/11 — 3/14 1000 A 36 48 Against/Oppose +12
Pew Research 3/10 — 3/14 1500 A 38 48 Against/Oppose +10
Associated Press/GfK 3/3 — 3/8 1002 A 41 43 Against/Oppose +2
Gallup 3/4 — 3/7 1014 A 45 48 Against/Oppose +3 WINDANSEA(Quote)
Rod says:
This isn’t just a Federalism issue. The individual mandate is a de facto “capitation or other direct tax”, which Congress is Constitutionally forbidden to levy... Rod(Quote)
Leo D says:
If Kerr is correct it means that for at least 5 members of the Supreme Court the 10th Amendment to the Constitution has been repealed de facto, just as prohibition was de jure, since it used to leave to the states or the people the right to pass laws relating to issues not specified in the Constitution. As stated often, ‘to regulate commerce’ can not possibly include ‘to enforce engagement in commerce’.
Likewise, if Kerr is correct Article 1, Section 7 of the Constitution that requires all revenue raising bills to originate in the House is null and void.
Otherwise we’re speaking a very different English than the authors of the Constitution.
Even though Harry Blackman found penumbras hiding in microdots all over the Constitution, I have a little more faith in the four conservatives on SCOTUS if not any others.
In any case, I’d be mighty pleased if Americans decided the final fate of ObamaCare next November and two years hence. Leo D(Quote)
damikesc says:
Speaking as a laymen, how can a good that specifically cannot be sold over state lines, as health insurance cannot, be covered by the Commerce Clause in the first place? damikesc(Quote)
Doug in San Diego says:
Folks, please remember, right now, just because an out of state company sold you your health insurance policy doesn’t mean they didn’t have to register with the state insurance commissioner, and have the rates and terms they offer in your state approved. We don’t have a true interstate market, because even a national company has to issue insurance legally tailored to meet approval by the insurance authorities in each state where they do business. Doug in San Diego(Quote)
Bob M says:
Looking into historical writings on the commerce clause, I came across the following:
“It was said by Chief Justice Marshall that it is a matter of public history that the object of vesting in congress the power to regulate commerce with foreign nations and among the several states was to insure uniformity for regulation against conflicting and discriminating state legislation.”
It would appear that the clause is meant to ensure equal treatment of such commerce by the states, and not to interfere with or actually participate in and/or mandate such commerce.
Is it a consensus here that this perspective would be ignored or is no longer considered by the court? Bob M(Quote)
Mark Field says:
Ah, brings back fond memories of segregation. Good times. Mark Field(Quote)
leo marvin says:
If you think working and having to buy insurance are slavery, but you’re jealous of imaginary hippies painting fecal pictures of Jesus, you have bigger problems than health care reform. leo marvin(Quote)
S says:
But you don’t need a “true interstate market,” you just need interstate commerce and if a Hartford Connecticut Company sells to a Palo Alto, CA. housewife, it’s interstate. There is, even before this bill, Federal Court jurisdiction over their insurance dispute. S(Quote)
Joan H. says:
Wickard v Filburn (1942) is the underpinning of all of this nonsense. We really are getting (screwed by) a New New Deal. Joan H.(Quote)
Dave J says:
Do you have a link proving that insurance can be sold over state lines? Seems to me some do not realize that “national companies” establish state presences to enable them to sell locally, so any policy writing by the subsidiaries is exclusivly intrastate.
Dave J(Quote)
ChrisMeihass says:
I don’t know who Orin Kerr is and don’t much give a shit. Also I don’t know jack about this site, except for the link from Hotair.com.
The Supreme Court will become involved in this Obamacare debate. Odds run at about a 100% certainty.
Perhaps Orin Kerr need to review the last State of the Union to jog his memory as to certain Justices state of mind. Certain Justices are champing at the bit to insert themselves into the current Leftist legislative attempts to overthrow the Constitution and undermine the American Way of Life. ChrisMeihass(Quote)
memomachine says:
hmmmmm
Rent seeking? Moi? Never!
This is the new new new paradigm baby! I don’t oppose healthcare any more because this is all new new new!
The Commerce Clause can prevent me from buying health insurance across state lines *and* require me to buy health insurance. That’s some awesome legislative judo there. And if that’s legal then Congress can use the Commerce Clause to forbid the inter-state sale of buttons *and* require the intra-state purchase of buttons by citizens and legal residents. Or illegal residents. Or anybody who doesn’t want to go to prison and share a shower with large men called Bubba who haven’t seen a woman in 25 years.
Or cars. Cough syrup. Corn oil. Wheat. Soybeans. Gelatinous substances.
Or I could write a book consisting of 400 pages of “You’re screwed” and “Don’t you like being told what to do” endlessly repeated. Then Congress can tell you to buy my book or else.
Ain’t Democracy grand?
Now buy my crap or else Congress will spank you. memomachine(Quote)
epluribus says:
lslincoln says:
Excuse me, sir. I didn’t realize that I was compelled to answer every post in this thread. I humbly apologize. Nor did I realize that you were being serious. As a lover of sarcasm, I thought you were being sarcastic. My mistake. Now that you mention it, I realize you are right about the irreconcilable difference between logic and facts and sarcasm. One can’t be sarcastic and still by factual and logical. Just can’t be done. I don’t exactly know why, maybe it’s just because you say so. Bit I’ll take your word on it, since you seem so smart. epluribus(Quote)
epluribus says:
Doug in San Diego says:
Sarcasm, right? You’re saying that a big company that does business in many (maybe all) states can get out of regulation under the interstate commerce clause by filing a registration form in each state. Brilliant evasion, Doug. I didn’t realize how easy it is to avoid the application of a clear constitutional provision. Does this apply equally to other businesses? Airlines? Railroads? Automobile manufacturers? Just file a registration form in each state and you’re home free? I love your sarcasm, Doug. epluribus(Quote)
Big Al Fox says:
Jail? Whoa. Where you come up with that?
The IRS will send you a notice that you either get HC coverage or you pay a fine. It’s your choice to pay it.
Consider if it’s economical for the IRS to come your trailer?
I certainly am happy Obama finished shoving this bill down your unconstitutional interstate babbly throats.
See YOU at the Dr.s office!!!
You all have a widdle baby sore throat to treat! Big Al Fox(Quote)
lslincoln says:
epluribus
Thanks for rising to the bait. You sir, are a world-class debater. And I’m glad that we agree that the health care bill is untenable and will drive up the cost of health care. lslincoln(Quote)
DougInSanDiego says:
I’m all for imitation as a form of flattery.
Thus, I’m flattered by this fellow’s attempt to be me. Quite touching, actually.
But in this case I’m a bit worried his fruitloop notions might sully my good name.
Thus, I feel compelled to launch a trademark infringement claim against “Doug In San Diego” — who is not, and never shall be, DougInSanDiego.
Sorry to have to out you like that, “Doug” — but you leave me no choice. DougInSanDiego(Quote)
Sara says:
Just at random, see eg. the Missouri Ins. Dept. list of market share by company, showing a host of health insurers from out of state. http://insurance.mo.gov/cgi-bin/mktshr.cgi
If interested, you can also see some of the federal laws that already regulate Mo. health insurance: http://insurance.mo.gov/consumer/faq/lhfaqs.htm
As background, in United States v. South-Eastern Underwriters Association (1944), the Supreme Court held that Congress has the power to regulate interstate insurance transactions. Congress then enacted the McCarran-Ferguson Act (15 U.S.C. § 1011) which provided that the laws of the several states should control the insurance business, but that the Sherman Act, the Clayton Act, the Federal Trade Commission Act, the IRS, (and now COBRA and HIPPA and others) are applicable to the insurance business. Sara(Quote)
epluribus says:
You’re welcome, I’m sure. Yep, the bill is untenable, and costs will rise to horrendous heights. The nonpartisan Congressional Budget Office, with their staff and satistics, years of experience in analyzing legislation, and full access to the actual text of the law, says otherwise. But you and I are smarter than they are, and we know they are lying. We also know that the moon is made of green cheese and that the tooth fairy will leave a quarter under your pillow if you are good. We live in the real world, the rest of them are fantasizing. epluribus(Quote)
Desiderius says:
Chris,
I believe the following section of your post was superfluous:
“I don’t know who Orin Kerr is and don’t much give a shit. Also I don’t know jack about this site, except for the link from Hotair.com.”
Please aim for concision. Desiderius(Quote)
lslincoln says:
Ah. Finally a response, albeit one dripping with sarcasm.
You’re not really going to rely on the CBO scoring as evidence that it will lower costs, are you? In spite of the fact that more than half of the so-called “savings” come from the entirely-unrelated federalization of student loans? Or the fact that medicare savings are double counted? Or that the doctor fix (which will add $500B-$600B to the cost of the bill) was intentionally left out and will be added after the fact? You’re taking an awful lot on faith there, chief.
The CBO’s responsibility is to score the bill in front of them. They are not allowed to hypothesize as to how many people will make the obvious logical choice not to buy into it, but are required to assume that the mandate means everyone will (or I think the number they use is 95%). In some regards, I have to agree with Nancy Pelosi’s somewhat embarrassing admission that, “we have to pass this bill so the American people can see what’s in it.” Only insofar as it means that the only way that we’re going to know what is in the thousands of pages, and what the impact of those changes will be, is if it’s implemented.
At this point, we can both speculate as to what will happen, but don’t pretend that pointing at the CBO’s scoring of the bill is somehow decisive or determinative of what the bill is going to cost... OR what impact it will have on the cost of healthcare. For a lesson on the accuracy of past healthcare cost predictions... see this (warning: it’s not written sarcastically, so you may not understand it): http://jec.senate.gov/republicans/public/_files/Are_Health_Care_Reform_Cost_Estimates_Reliable__July_31_2009.pdf lslincoln(Quote)
Fyzycyst says:
epluribus is funny.
First, even if a company underwrites policies in all 50 states, that doesn’t mean it’s doing interstate commerce. Current law is the reason why you have, say, Blue Cross Blue Shield of Massachusetts. Or insurance ads where the fine print describes that some coverage is not available in PA or whatever. Your local State Farm rep, in say, OH, cannot write a policy for your kid living in TX. Only for you in OH. See how simple it is.
Second, he actually believes any CBO scoring of anything. Those folks could be the greatest experts ever, but Congress has so restricted the way CBO can do their computations, that nothing CBO says has any meaning. The classic example is the patently absurd notion that increasing taxes produces more revenue. Economic behavior changes when you change taxes, but CBO is forced to assume things remain static. In the current case, the Dems completely gamed the assumptions, in order to force the CBO score to come out the way they wanted. Fyzycyst(Quote)
epluribus says:
lslincoln:
Of course not, not when I have someone as smart as you to tell me the real facts. I may never have heard of lslincoln before, but if you tell me you are a better expert on these matters than the agency that Congress has relied on over many years, under Republicans and Democrats alike, to advise them, I will accept your word for it. No questions asked. epluribus(Quote)
epluribus says:
Fyzycyst says:
Boy, that’s a real shocker. Experts I have heard speak on the subject have said that the reason insurance is not available in all states is because of state laws; because insurance has traditionally been regulated on a state-by-state basis, and because each state has its own regulatory framework and structures its regulations in such a way that not all health insurers can comply with the state regulations, or, if they can comply, choose not to do so. That how my insurance law professor explained it, too. But you tell me that the experts are wrong. My insurance law professor was wrong. Wow, I had no idea. And all along I thought the Kentucky health insurance company I have my coverage with in Arizona was engaged in interstate commerce. I thought that simply because it is a multi-billion-dollar insurance company that does business across state lines–many states lines–it was involved in interstate commerce. Now I realize how wrong I was. Thank you for pointing this out. epluribus(Quote)
lslincoln says:
epluribus
It’s funny how every time I bring up a fact or argument you are unequipped to deal with, you just fall back on your sarcastic ad hominem attacks. lslincoln(Quote)
Sarcastro says:
I don’t like Wickard, so Ima assume it doesn’t exist!
In my land, health care is clearly Unconstitutional. Also, Obama turns out to have secretly been Regan all along an’ then he totally punches Iran right in the Nuclear.
Awesome! Sarcastro(Quote)
epluribus says:
So true, but you can correct me, give me the real facts, and set my thinking straight. I am grateful to you for that. epluribus(Quote)
Fyzycyst says:
I’ll grant you, epluribus, that there’s a better way of stating what many of us are trying to say...
My understanding is that, in 1944, the Supremes went ‘Duh, I dunno, you guys decide’ to Congress as regards whether insurance constituted interstate commerce. McCarran–Ferguson resulted, with the law of the land becoming that, ‘Nope, insurance doesn’t really fall under the commerce clause. Let the states handle it.’ So, insurance is not interstate commerce. Fyzycyst(Quote)
Sara says:
No, Fyz. See my 7:06, above. Sara(Quote)
cboldt says:
– Sarcastro says: I don’t like Wickard, so Ima assume it doesn’t exist! –
Name two ways that Filburn could have avoided the penalty assessed under the federal law that was upheld in Wickard v. Filburn, 317 US 111 (1942) cboldt(Quote)
Fyzycyst says:
Sara, the practical effect is that someone living in NY cannot get on the web and look up a company in MN and order a policy from them. And supposing there’s a company where you can order a policy on the web, what you’d be buying is a NY policy that’s only good in NY. The point is that, the way I’ve seen insurance companies deal with this is illustrated as follows... My company insures through Blue Cross Blue Shield of MA, but I’m located in VA. My claims get processed through the Virginia-based BCBS. Whatever gets done behind the scenes is immaterial. BCBS of MA does not operate in VA.
Regardless, it is still the law of the land that Congress voluntarily surrendered their supposed ability to regulate private industry via the Commerce Clause. So, how can both McCarran and O-care then both apply? Fyzycyst(Quote)
Robert Clark says:
This is the most depressing set of comments — I have no clever comment to offer; it is disappointing to read that the SCOTUS is openly hostile to an originalist interpretation of the Constitution, and is more interested in upholding precedent and maintaining a low volatility rule of law than insisting that the Congress abide by its founding documents. Of course one of the virtues of the idea of states’ rights is that if you don’t like the laws of a given city or state, you can relocate. One can of course relocate outside of this country, relocates one’s business (especially if your customers are already mostly international), and seek a better deal somewhere else. Robert Clark(Quote)
Brian G. says:
What did his argument have to do with “when Republicans were in power?” Talk about an obvious and desperate dodge. Brian G.(Quote)
memomachine says:
You bore me. memomachine(Quote)
uberVU - social comments says:
epluribus says:
If it was my purpose here to entertain you this would make me feel bad. But it isn’t and I don’t epluribus(Quote)
PoliBlog: A Rough Draft of my Thoughts » Lawsuits Filed Against HCR (or: Hail Mary in the Courts) says:
Sacrastro says:
[cboldt, there seem to be legitimate arguments about the Constitutionality of the bill. Hell, even overturning Wickard is colorable (though unlikely, sorry Robert Clark, but you’re too righteous to stop tilting at windmills now!)
But the people yelling about the Commerce Clause as though it’s the 1930s are not putting forth a member of that set. Sacrastro(Quote)
Sara says:
That’s called interstate commerce.
No. Congress, in a congressional statute, granted states power to regulate in this area and carved out areas for itself. Congress has altered those areas where subsequent Federal statutes, apply (eg. COBRA and HIPAA). Congress can change McCarran, at any time. Sara(Quote)
Tweets that mention The Volokh Conspiracy » Blog Archive » What Are the Chances that the Courts Will Strike Down the Individual Mandate? -- Topsy.com says:
Fyzycyst says:
Sara, you’ve just gotten to the heart of the problem...
You are correct, and this is a correct application of the Commerce Clause. Ironically, what the Republicans have been advocating (to correct the state-by-state patchwork) is to also use the Commerce Clause as intended, namely to prevent state regulations from interfering with commerce. The Commerce Clause has NO application to private transactions, 60+ years of jurists sadly ignorant of the plain meaning of the Constitution not withstanding.
However, in my example, whatever the arrangement amongst the various state incarnations of BCBS, I am not engaging in interstate commerce (my Dr sends his bill to the Virginia incarnation of BCBS) and my company HQ contracts with their local BCBS. Those entities may be engaging in interstate commerce but I am not, so you cannot justify use of the Commerce Clause to force me, as an individual, to purchase insurance.
Furthermore, as I am neither a “foreign Nation”, nor one of the “several States”, nor an “Indian Nation”, the Congress has exactly ZERO power to mandate that I purchase anything at all. Fyzycyst(Quote)
Sara says:
Fyz — At least, you now admit that insurance is sold in interstate commerce and therefore is subject to congressional regulation.
As for your personal situation, it’s unchanged under the new statute. You don’t have to purchase, anything, at all. Your high horse is going in the wrong direction. Sara(Quote)
Fyzycyst says:
Sara, apologies if I’ve been less than clear. The point I’ve been trying to make is, finally, the individual mandate should be struck down because: a) *I* am not engaging in interstate commerce when I deal with my health insurance because the insurance industry (or at least the part of it I interface with) doesn’t cross state lines; b) McCarran formally established insurance as NOT interstate commerce [and recall the Supremes at the time were just itching to make it so, but the overwhelming precedent was that insurance was not interstate commerce, hence punting to Congress]; and probably the strongest argument is c) the Commerce Clause simply doesn’t apply to individual citizens, who are not foreign nations, any of the several states or an Indian nation. Decisions applying the Commerce Clause to individual citizens are gross malinterpretations of the Constitution and are evidence of a disturbingly profound ignorance of the basics of the Constitution on the part of an unfortunately large number of those on the bench.
BTW, your assertion that I don’t have to purchase anything is simply false. It is called the ‘individual mandate’ for a reason. Just because maybe it doesn’t kick in for a few years doesn’t change the fact that, if not struck down or repealed, at some future point the firepower of the ‘fully armed and operational’ IRS will force me to purchase health insurance that meets, not my standards, but the Federal Gov’t’s. Fyzycyst(Quote)
Sara says:
Fyz — Sorry, it is incorrect for you to claim you don’t participate in inter-state commerce, if, as you originally said, you live in Virginia and your insurer is from Mass. — regardless, of any other arrangements that are involved to administer the plan.
Also, if you have insurance from your employer, you do not have to buy anything under the law. Sara(Quote)
Fyzycyst says:
Sara,
Nope, my understanding is that the BCBS for VA is a separate corporation from BCBS of MA. I pay my co-pay to the Dr., the Dr. bills the VA BCBS, VA recovers the $$ from MA, my company (based in MA) pays the premium to BCBS of MA. The only time $$ pass across state lines is the transaction between BCBS for VA & MA. Again, *I* have not engaged in interstate commerce.
As for the fantasy that we get to keep our current insurance arrangements indefinitely, that’s just naive, since even the most minute change in coverage will trigger the requirement to participate in a Federally-approved plan. Failure to comply with this will result in the full coersive power of the IRS being brought to bear.
Also, you’re missing the larger point... It is completely unambiguous in the Constitution that the Commerce Clause cannot possibly apply to either individuals or to corporations (which also are not foreign nations, any of the several states, or an Indian nation). Regardless of what transactions I’m doing, the Federal Gov’t cannot even potentially force me to engage in a private transaction based upon the Commerce Clause. Fyzycyst(Quote)
Working Stiff says:
I’m not a lawyer or an economist, but I do own a beach house. I have to get hurricane insurance for this house. One year I failed to renew it and it lapsed. That summer, I went to the insurance company to take out a new policy on my house. They gladly took my money, but informed me there was a 45 day wait period for coverage, basically rendering it useless for that hurricane season. So, wouldn’t that be how Health Insurance would work? First, I would assume if you wait until you are sick you’ll be in a higher premium bracket anyway. Second, won’t there be some wait period where your insurance won’t kick in immediately, so if you wait until you break a leg, you’ll be paying for the Doctor setting your leg out of pocket, but will be covered later on for Physical Therapy. Are there details in the HCR bill that I haven’t seen that ban higher premiums for pre-existing and/or delaying coverage for “walk ins”? Working Stiff(Quote)
PhilC says:
Yes. You have. You have received a benefit from an out of state corporation, if your Mass insurer did not pay the bill, you would be effectively uninsured. PhilC(Quote)
george weiss says:
yeah im a little confused by the less than 1% statement.
i would agree if the commerce clause is the only issue in the complaint-as there is slam-dunk case law against that argument and there are not 5 votes to overturn esp in a case where even a more moderate view of commerce would allow this.
but since there is also the issue of no direct tax without equal apportionment (as distinct from income tax which is allowed without equal apportionment (compare art I section 9 and 17th amendment) which could be a basis for unconstitutional. Even if under commerce clause there is section 8 affirmative power there could also be a limit in section 9. Unlike the commerce clause there is far less case law on the point of what a direct tax is vs a “fine” and the like.
so i think OK has probably understated the odds because he fails to distinguish these points. george weiss(Quote)
george weiss says:
woops that cite was compare art I section 9 and 16th amend-not 17th. george weiss(Quote)
Fyzycyst says:
PhilC,
So, you’re asserting that if any point in the chain of transactions crosses state lines, then every point in the chain is involved in interstate commerce? That’s illogical and absurd, but the law is full of (I would say dominated by) illogic and absurdity, so I’ll give on that point.
However, as I said before, even if you accept this, Congress still has no power to force any individual citizen or corporation to engage in a private transaction, as neither a real nor a corporate entity are a foreign nation, one of the several states, or an Indian nation. Those are the only three entities over which Congress has any power to regulate commerce. The Constitution could not be any more plain on this. Further, in McCarran, Congress reinforced the pre-existing body of precedent that, in fact, insurance is not interstate commerce. Fyzycyst(Quote)
tomemos says:
“However, as I said before, even if you accept this, Congress still has no power to force any individual citizen or corporation to engage in a private transaction, as neither a real nor a corporate entity are a foreign nation, one of the several states, or an Indian nation.”
Nor does the new health care law force any individual to engage in a private transaction, as Sara already told you. tomemos(Quote)
Fyzycyst says:
tomemos,
Really? You’ve not been paying any attention then. This entire thread is about the individual mandate. You know, the part of O-care that says ALL people MUST have a health insurance policy that is deigned to be satisfactory by the Feds, and if you don’t the IRS gets to pick your pocket. In other words, ALL individuals are REQUIRED to enter into a contract with a private corporation, PERIOD. Its completely unambiguous that the Feds are FORCING private citizens to engage in a private transaction. To say otherwise is to be detached from reality. Fyzycyst(Quote)
tomemos says:
“You know, the part of O-care that says ALL people MUST have a health insurance policy that is deigned to be satisfactory by the Feds, and if you don’t the IRS gets to pick your pocket. In other words, ALL individuals are REQUIRED to enter into a contract with a private corporation, PERIOD.”
Your statement is self-contradictory. How can you say, “ALL individuals are REQUIRED to enter into a contract with a private corporation, PERIOD,” when you’ve just stated what your option is instead of doing that? If you have the option of paying a tax, in no way are you being “forced” to do anything. Paying a tax isn’t the same thing as being thrown in jail; it’s not punishment for something and due process isn’t required. Thanks to the 16th Amendment, Congress has the right to levy taxes.
Homebuyers get a tax credit on their mortgage payments. I rent and get no tax credit. Congress is telling me I MUST enter into a contract with a private third party and buy a home, PERIOD. Otherwise the IRS gets to pick my pocket. Won’t someone defend my freedom? tomemos(Quote)
Fyzycyst says:
You’re kidding, right? Basic fallacy of false equivalency. Nowhere in the law does it state you are subject to a criminal penalty (a fine) if you do NOT buy a home. There is no piece of Federal law that states you are required to buy a home. There IS NOW a piece of Federal law that DOES say you are REQUIRED to have a health insurance contract, or pay a FINE. That is the constitutional problem, the explicit requirement. Fyzycyst(Quote)
tomemos says:
Fyzycyst, I’m sorry, but you’re wrong about what’s in the law, which no matter what you’ve been told does not subject you to a criminal penalty for not buying insurance. Instead, it’s a tax on not buying insurance, and Congress is empowered to tax; using all-caps doesn’t change that. I’ll link to Jack Balkin here, because he explains it pretty well.
You’re so baffled by the things I’m saying that I get the feeling you haven’t read very widely on this issue: a lot of legal experts agree with me that the law is constitutional. That doesn’t mean they’re right, but you should at least consider whether there’s more to the arguments to the bill’s constitutionality than you think. tomemos(Quote)
lslincoln says:
tomemos,
You’re right, insofar as it is only a tax at this point. However, it IS an unprecedented tax, which makes it a bit outside the scope of what’s authorized (at least in the past). This is not a tax for buying a good or service, or for driving on the road, or for earning an income, or even for dying. Don’t want to pay income tax, social security, medicare, etc? Don’t work. Don’t want to pay taxes on goods or services? Don’t buy them. Don’t want to pay taxes on energy? Get off the grid. Don’t want to pay an estate tax when you die? Don’t amass an estate big enough to be subject to it.
This is a whole new animal; it’s a tax on existence. If you can think of a precedent, I’d be happy to hear it. As far as I can tell, for most Americans, there’s only one action (over which they had ZERO control) required to have the tax applied to you: be born an American. Dress it up and call it a tax if you like, but it’s a tax on existence. So you can’t simply point to other taxes and go, “see, they did it before, that must mean they’re authorized to do it again.”
More importantly, as I’ve said before, the real problem is that it has no teeth. Everyone agrees (except Candidate Obama when he was debating Hilary Clinton) that the only way this bill will drive down costs is with an individual mandate. But the current one is hardly likely to force people to comply. Last time I checked it was a largely unenforceable fine of $750. Given the choice of buying a health care plan that I don’t think I need (regardless of the premium) and NOT paying an unenforceable $750 fine, which one do you think I’m going to do?
The individual mandate (and therefore the whole bill) only works if it’s MUCH more enforceable and creates a MUCH greater incentive to comply. But then it almost CERTAINLY becomes unconstitutional. Start throwing people in jail for not buying a good from a private company and THEN try to tell me you’re still safe within the confines of the Constitution. In spite of modern interpretation of the commerce clause that stretches the fabric of the Constitution nearly to the ripping point, the interpretation is not nearly big enough to cover an individual mandate with strict enough enforcement powers to mandate anything. This thing is all smoke and mirrors.
As an aside, I have to admit that I find it funny that people are trying to argue that “mandate” means something other than an authoritative command (notice the similar roots) to do something. If people are going to argue that this bill doesn’t force anyone to do anything, then we’ve officially reached the point of absurdity. In a literal sense, it’s nearly impossible for anyone to FORCE someone else to do anything, as there’s almost always an alternative (no matter how difficult or unappealing). The bill IS intended to force people to buy a private good from a private company. Otherwise they’d have called it the “individual really-strong suggestion.” lslincoln(Quote)
tomemos says:
“This is not a tax for buying a good or service, or for driving on the road, or for earning an income, or even for dying. Don’t want to pay income tax, social security, medicare, etc? Don’t work. Don’t want to pay taxes on goods or services? Don’t buy them. Don’t want to pay taxes on energy? Get off the grid. Don’t want to pay an estate tax when you die? Don’t amass an estate big enough to be subject to it. This is a whole new animal; it’s a tax on existence. As far as I can tell, for most Americans, there’s only one action (over which they had ZERO control) required to have the tax applied to you: be born an American.”
There are two problems with your argument here. The first is that the tax only applies to the uninsured, not to everyone who is born American. Therefore, it is avoidable just like the other taxes you mention. I know you might respond that “not buying insurance” is different from “earning an income” because it’s inaction rather than action. But as I said above, that’s like saying that the government is taxing me for not buying a house, because I don’t get the tax credit homeowners get.
The second problem is that even if you don’t have insurance, you can avoid the fee the same way you can avoid the income tax: don’t earn an income. This is from the text of the Senate bill, and to my knowledge the final law:
“(2) INCLUSION WITH RETURN.—Any penalty imposed by this section with respect to any month shall be included with a taxpayer’s return under chapter 1 for the taxable year which includes such month.
(3) PAYMENT OF PENALTY.—If an individual with respect to whom a penalty is imposed by this section for any month—
‘‘(A) is a dependent (as defined in section 152) of another taxpayer for the other taxpayer’s taxable year including such month, such other taxpayer shall be liable for such penalty, or
‘‘(B) files a joint return for the taxable year including such month, such individual and the spouse of such individual shall be jointly liable for such penalty.”
So if you don’t file a tax return, you don’t pay the tax—just like with income tax. I think it takes some heroic effort to say that one can avoid all forms of taxation, but even that effort doesn’t make this new tax substantially different.
“More importantly, as I’ve said before, the real problem is that it has no teeth. ”
Well, that’s a policy issue, not a constitutional one. “Constitutional” doesn’t necessarily mean “a good idea.”
“As an aside, I have to admit that I find it funny that people are trying to argue that “mandate” means something other than an authoritative command (notice the similar roots) to do something.”
This is pointless semantics. We’re arguing about the actual text of the law. I haven’t used the word “mandate” in this thread, you’ll notice, and I encourage you not to if you feel it’s inaccurate. tomemos(Quote)
lslincoln says:
tomemos
“There are two problems with your argument here. The first is that the tax only applies to the uninsured, not to everyone who is born American. Therefore, it is avoidable just like the other taxes you mention. I know you might respond that “not buying insurance” is different from “earning an income” because it’s inaction rather than action. But as I said above, that’s like saying that the government is taxing me for not buying a house, because I don’t get the tax credit homeowners get.”
The “first problem” is that you are implying that a person’s status as either insured or uninsured is accidental, or not the result of whether or not a person has purchased insurance. You’re right that it IS avoidable, but only by buying a private good from a private (or likely public, eventually) entity. A homebuyer’s tax credit is NOT relevant. The tax credit for owning a home is an incentive to buy , the tax penalty in the health care bill is a punishment for not buying. This is a distinction with a difference. A person can only qualify for the incentive of the tax credit if they are willing and able (not an unimportant point) to buy a home. To “qualify” for the punishment in the health care bill, one need do nothing. Certainly you will agree that there is a difference between saying, “jump through this hoop and I’ll give you $10.” vs. saying “If you don’t jump through this hoop, I’ll take $10 from you.”
People have made the point that the government has always used taxes as an incentive to encourage certain behaviors and as a disincentive to discourage other behaviors. That is not the point. The point is that the health care bill uses a DISincentive to attempt to REQUIRE (see, that’s the real word in the bill. The Individual Responsibility Requirement) behavior. So there’s a REQUIREMENT that I DO something, which is enforced through the use of a disincentive for NOT doing what I’m required to do.
On your second point, regarding the fee, it’s not true that you don’t owe the fee if you don’t have an income. It’s just that they have no way of collecting it if you don’t have an income. (which is my point about it lacking teeth). I agree that my larger point is not a Constitutional argument directly; but it IS indirectly. It is precisely because the the bill is written with no teeth that it MAY be Constitutional (or at least, it makes it less of a threat to Constitutionally guaranteed freedoms). But IF, and probably WHEN they give it more bite, i.e., stiffer penalties and or jail time for noncompliance, it almost certainly would BECOME unconstitutional. In short, while the Bill MAY survive a Constitutional challenge now, it only does so because it has inadequate provisions to enforce the “requirement.” And IF or WHEN they put in adequate provisions to enforce that requirement, it almost certainly BECOMES unConstitutional. lslincoln(Quote)
tomemos says:
“You’re right that it IS avoidable, but only by buying a private good from a private (or likely public, eventually) entity. A homebuyer’s tax credit is NOT relevant. The tax credit for owning a home is an incentive to buy , the tax penalty in the health care bill is a punishment for not buying. ”
It’s not a punishment, unless you mean “punishment” as a synonym for “disincentive.” As with other taxes, you don’t have to be convicted of anything to be required to pay it. That’s different from criminal punishment.
“A person can only qualify for the incentive of the tax credit if they are willing and able (not an unimportant point) to buy a home. To “qualify” for the punishment in the health care bill, one need do nothing.”
And to “qualify” for the higher taxes of a non-homeowner, a person likewise does nothing. I understand that you see a *moral* difference between the two kinds of taxes, and I’m not even disagreeing with you. I’m giving my understanding of the *legal* justification.
“So there’s a REQUIREMENT that I DO something, which is enforced through the use of a disincentive for NOT doing what I’m required to do.”
Even aside from the tax issue, Congress’s ability to regulate matters relating to interstate commerce—in other words, to REQUIRE people to DO things, and disincentivize (yea, even punish) their NOT doing them—is well-established. The Supreme Court ruled, for instance, that Congress could prohibit restaurants and hotels from discriminating against black customers. And health insurance falls at least as squarely under interstate commerce as those businesses do. tomemos(Quote)
Doug in San Diego says:
A couple of comments:
Folks here have compared and contrasted this with mandatory car insurance and the relative powers of the State and Federal government. In most states (I live in California)) , you need “Evidence of Financial Responsibility”, and not literally a minimal amount of liability insurance. In other words, you can choose to post a bond or other financial instrument the state deems acceptable (a L/C, CD or state or federal bonds?) that meets conditions set by the state, and then self-insure. While this is only practical for companies with large fleets — it does happen. Someone paying a high premium might opt for this, if they had the money.
However, Obamacare is about cost sharing from low risk groups (young and healthy) to high-risk groups (older and sicker). I’m just glad the young voted for him — they’re the one who’ll get stuck with the tab. I’m 55 — so for me, it’s about the principle.
As for Federal justification for the mandate by interstate commerce, the political defense of this is right out of Kremlin foreign policy tactics — first repeal the laws of insurance (probability, proper assessment and pricing of risk), and then, after you have created an environment ripe for adverse selection and death spirals, present the individual mandate as the solution. However, if risk was properly priced, the fine to enforce the mandate would be so small as to be politically unobjectionable.
The biggest issue I have as far as overreach, is that this doesn’t even pretend to reduce regulatory complexity by creating national regulators that streamline regulation supersede state ones in order to create a national market, but instead saddles us with many layers of layered state and federal creations.
One other point about the mandate. If the fine is upheld, anybody that has a high earned income should pay the fine — not only because you can get instant coverage for anything serious, but also, because, while you are healthy, you’ll get no subsidy. However, if you develop a serious illness, your income will likely drop, and the subsidies will start to kick in. Doug in San Diego(Quote)
David says:
Overreach ... hmmm.
Why do you righties never get your panties in a bunch about government overreach when it comes to military spending and the huge portion of our taxes that go to that. Do we really need that much military spending to make us safe? Did the original framers of the constituion expect we would impose taxes high enough to support that much of a defense budget? Of course not.
Of the 10K+ the average person pays in taxes every year, you could easily balance the $750 cost of the health-mandate (if you don’t purchase) tax by cutting the military budget enough. Of course, that’s never going to happen. The dems are in the take-our-freedom-away-with-huge-military-spending-related-taxation scam as much as the Rs.
All this carping over a $750 fine that’s not likely to affect anyone writing on this blog. It’s the poor who are most likely to be assessed. And most of them are Ds.
And ... of course no one making this overreach argument would be doing so if Rs had called for the mandate to buy insurance, as many had in their proposals. Can you spell disingenuous? Of course you can, many of you are lawyers. David(Quote)
Doug in San Diego says:
David s,
Because the Preamble explicitly spells out “provide for the common defense” as a key purpose of the constitution, and and the constitution also enumerates the War related powers of the Federal government and the procedures to be followed to go to war.
You’re right — none of our founders anticipated costly standing armies, or the military-industrial complex. However, they also couldn’t conceive of a non-state actor half-way around the world in a tent or cave being able to rain death on a major American City (either 9/11, or a future dirty bomb). From a policy perspective, I also want a miltary that, as long as we can afford it, can project power farther than the reach of our adversaries. I therefore see excessive spending on social programs as detrimental to the Federal government performing one of its core functions. Furthermore, many of these programs social have completely failed, and only encourage the propagation of disfunctional behavior from one generation to the next.
The end result of all those well-intentioned Great Society programs has been the destruction of the Black family, as Government became the provider and Dads with an entry level job became and impediment to Government aid. Now, the inner city underclass has no hope, because they have too few role models of two parent families.
BTW, I make way less than you think, and pay way less in taxes. I may even come out ahead. I just see the world differently, having lived in several countries with nationalized health-care systesm.
As for the R’s who called for a mandate –it’s the coupling of the mandate with community rating that makes it an income transfer. If all the government wanted was proof I would pay for my own healthcare — that’s something else. We no longer have health-insurance; we have pre-paid healthcare. It’s as if you said that all restaurants had to have an all-you-can-eat price, or you simply had to buy an all-you-can-eat prepaid card, and go to restaurant of your choice, and buy off a menu without prices, but a co-pay. A system without price signals just doesn’t work. Give people a tax credit (as far as I’m concerned, it could even be age-adjusted) and let them contract for their own catastrophic coverage and payf for their own routine and chronic care. We could even choose to offer additional subsidies in exceptional cases for people with pre-exiting conditions. Doug in San Diego(Quote)
David says:
Thank you for your thoughtful reply, Doug in San Diego.
I have no problem at all with us have a standing army, or a mighty military. But ... there are no attempts to trim military spending. Surely we could trim 10%, which would be close to 100B and not lose any might or effectiveness. Redundant weapon systems, troops being supported in Germany and Japan, etc., these don’t help us in the battle against the loonies in the Middle East.
As many have noted, projected health care spending increases have us on a collision course with even more huge national debts. The passed proposal should help with that. The mandate is an attempt to get almost everyone covered so that they don’t keep getting health care through Emergency Rooms, a much more costly route. Having a doctor once covered, many of those currently uninsured will be persuaded to practice better preventive care. Big savings there!
The health care bill is not really comparable to the great society programs. It’s not giving anyone something for nothing. Everyone would pay, though of course those less able would pay less.
Regarding entitlements that have crippled the budget ... the primary reason for that is that those with higher incomes are not paying enough SS tax. Everyone always talks about cutting benefits as the solution to this problem. But, the wealthy feel so entitled in this country, so entitled as to skip out on kicking back into the system their fair share for the right they have in this country to become wealthy, paved by a government that is very very friendly to business. Too friendly.
Why tea baggers are mad at the government more than they are mad at oppressive corporate structures is beyond me. I can understand why the wealthy want to keep the government out of their pocket — even though their argument is selfish. But, to the question who is more evil and freedom-robbing, especially of economic power, the answer I always get is corporate America, not government.
The relevant instance is health insurance companies. Health insurance companies shouldn’t even be involved in health decisions, or certainly not for profit. Doctors, nurses and hospitals are the experts. What does an insurance person know about health in a professional way? Why are we paying as much as 30% of our health dollar to insurance companies?
The real problem with the health bill isn’t the mandate. That’s chump change. It is that the so-called public option didn’t pass. If we had a self-paying option to insurance run health care (Medicare that you pay for), insurance rates would be much lower. In Germany, a health insurance company isn’t allowed to make a profit. Interviewed health care executives in Germany weren’t crying about this. And, they were by no means liberals.
Well ... I don’t think you’ll agree with much of this. But, thanks for listening, if you have gotten this far.
David David(Quote)
Rich says:
I would agree that the chances of the courts throwing out any part of the healthcare bill are slim, but I do think that the mandates could eventually be thrown out. As a liberal and a supporter of a public plan, I don’t say this lightly. However, the individual mandates are on what I perceive as the very edge of what could be considered constitutional. At the risk of having many brickbats thrown at me, I’ve blogged it here: http://www.dailykos.com/story/2010/3/24/850153/-Bias-Coloring-Judgment (but note the many responses from lawyers!). I think that this is not a cut and dried issue.
Much of this may turn simply on precedent. Wickard v. Filburn and the Militia Act are frequently quoted. I would just say that there are some significant differences between these and the current mandates. On the first, the defendant took an affirmative action that made him (ultimately) a part of the market. In the second, the economy in 1797 was not in such a condition nor the ability to travel of such a nature that the government could simply collect taxes and then arm people. Also, the country was under real threat of attack by a hostile foreign power (which did, in fact, attack the U.S. in 1812), so one could argue that the measure was justified by Congress’s need to secure the country. No one would argue that we are getting healthcare as a matter of national security.
I’m not a lawyer and I’m looking at this solely as a person with an interest in maintaining our constitutional rights. Obviously, lawyers and other scholars would have a great deal more information on how the Supreme Court might ultimately rule. But I think there is at least one significant constitutional issue here, and I don’t think anyone can predict with certainty how the courts will ultimately rule on it. (But having said that, the case probably isn’t ripe until someone is actually faced with a mandate some years from now.) Rich(Quote)
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