Two quick responses to my co-blogger Jonathan Adler below on the question of whether the courts would strike down the individual mandate.
1) Jonathan focuses on the chances that the Supreme Court would do something surprising and strike down the mandate. But I assume he agrees that to get the case before the Supreme Court, there would first need to be a circuit court that would vote to strike down the mandate. Presumably you’d have to bring the challenge in either the DC Circuit, the Fifth Circuit, or the Ninth Circuit; pray you get a panel with at least two of the circuit’s more aggressive conservatives; and then hope you can get past a rehearing vote. But the odds of that are pretty low. There’s a chance, I think, but it’s a relatively low one. And without that, I don’t think the Supreme Court takes the case.
2) More broadly, I sense there’s a significant amount of agreement among us on the question of how likely it is that the Supreme Court would strike down the individual mandate if it heard the case. As far as I can tell, we all agree it’s unlikely, and that it would take something unexpected. Where we differ is on how likely it is that the Supreme Court might do something unexpected.
Denver says:
Medicare is a tax/mandate situation as is social security. Any case putting into effect Barnettian libertarianism by judicial fiat would by necessity outlaw these programs too. Two conclusions to be drawn from this. 1) not likely to succeed (to say the least); and 2) if a constitutional challenge to this health care legislation is legitimate, why has there been no successful challenge to social security or medicare on commerce clause grounds?
March 23, 2010, 9:49 amSara says:
Question on procedure, if the case is States v. US, does the Supreme Ct have original jurisdiction? Or would you still go through the District Court?
March 23, 2010, 9:52 amDjDiverDan says:
Like actually follow the written Constitution?
March 23, 2010, 9:54 amJonathan H. Adler says:
Orin –
I agree the Court would be more likely to take the case if a lower appellate court were to strike down the mandate. Indeed, such a decision would make Supreme Court review inevitable. But I also think it’s possible the Court would take such a case were there sufficient intra-circuit disagreement over the question — such as a powerful en banc dissent or opinions suggesting that the Court needs to revisit the contours of Raich.
We also agree Supreme Court invalidation of the mandate is unlikely, though I would place the probability at greater than one percent.
JHA
March 23, 2010, 9:56 amAnon321 says:
Presumably you’d have to bring the challenge in either the DC Circuit, the Fifth Circuit, or the Ninth Circuit
Out of curiosity, are you saying that you’d have to do this as a matter of litigation strategy, or as the result of some sort of jurisdictional limitation written into the statute? I assume the former, but I’d think that you’d have a pretty decent chance of drawing a panel with aggressive conservatives in other circuits, like the 6th and possibly 10th or 11th — perhaps more so than in the 9th. (I could be wrong about this, but if I were litigating the case on behalf of a conservative advocacy group, I’d think seriously about bringing it in the 6th Circuit and hoping for a panel including at least two of Griffin, Batchelder, Boggs, Sutton, and Cook.)
March 23, 2010, 10:05 amPeter says:
I think it is strange that neither Adler nor Kerr have cited an example of Congress using the commerce power to compel individuals to buy goods or services from a particular type of corporation or business. If one of you guys would do that, your assertions re what the high court is likely to do would be more convincing. As it is, I think you guys are making political judgments, and ones that are not very convincing. The high ct historically tends to invalidates only minor legislation? Not even remotely true.
March 23, 2010, 10:07 amRichard Riley says:
Like Anon321, I’m puzzled by Orin’s suggestion that a challenge should (must?) be brought only in the D.C., 5th or 9th Circuit. Assuming Orin is just referring to litigation strategy, what about the 4th Circuit? They certainly had a reputation as recently as 4 or 5 years ago as the most conservative circuit; is that no longer true?
March 23, 2010, 10:16 amDerHahn says:
No. There are clear differences. SS/Medicare taxes are collected on income earned, not assessed as a penalty for not doing something. The benefits are also paid directly from the government.
March 23, 2010, 10:22 amRonny in Texas says:
While I agree with your litigation strategy of bringing suit in a conservative Circuit (5th), I disagree with your seeming dismissal of the ability of the Court to step up to the plate to invalidate the individual mandate. The Court does not enjoy a “roving jurisdiction to do good” and neither does Congress. While I agree that HCR is necessary, I just can’t see the Court stating that the “Commerce Clause” allows the federal government to compel by majority vote that individuals purchase a favored product. What does that do to federalism, not to mention total destruction of individual liberty and property rights? Such a ruling would have literally no end point in controlling people’s lives, and this is a continuing thread in recent Commerce Clause jurisprudence. While the Wickard decision has largely been accepted as giving wide discretion to Congress in economic matters, I would love to see the opinion that cites any historical or judicial record to support turning the federal government into an authoritarian machine that decides whether you get to keep your cash or are ordered to by a new car (i.e. why offer incentives for ‘cash for clunkers’ when you can just order it?) Taxation is available to shape and fund policy matters, but a Commerce Clause without ANY limit seems to go beyond what even Justice Kennedy would support. That seems to be 5-4 against the individual mandate, and I might even give a few of the intellectually honest liberals a nod to vote against such extreme Congressional power. We live in interesting times, indeed.
March 23, 2010, 10:30 amMahan Atma says:
Corporatist champion John Roberts striking down the individual mandate… yeah, that’d be something alright. That’s the part of the bill the insurance companies love.
Did Republicans forget who they put on the Court?
March 23, 2010, 10:33 amJ. Aldridge says:
Basically then, Congress can do whatever it pleases?
March 23, 2010, 10:45 amIndividual mandate challenged | The Spot says:
[...] Here is the analysis by Orin Kerr, as posted on The Volokh Conspiracy. And another analysis by Jonathan H. Adler, also posted on the Volokh site. [...]
March 23, 2010, 10:46 amAF says:
Orin:
At the risk of putting words in your mouth, I think the basic disagreement between you and your co-bloggers is that you think a constitutional challenge to the individual mandate is essentially frivolous under current law, while they do not.
At any rate, it is frivolous.
Assume for the sake of argument that major New Deal and Great Society economic legislation — the NLRA, FLSA, the Civil Rights Act of 1964, ERISA, etc. — would be unconstitutional under the 18th Century understanding of the Commerce Clause.
We can still distinguish between this sort of comprehensive national regulation on one hand, and, on the other hand, laws such as the Gun Free School Zone Act (struck down in Lopez), the Violence Against Women Act (struck down in Morrison), the Partial Birth Abortion Ban Act, and various federal criminal laws, for which, I would argue, the connection to interstate economic activity is essentially pretextual. In these laws, Congress is trying to impose its social policy views on the states, rather than address a problem which truly requires national regulation.
Even in the heady days of the New Federalism after Lopez and Morrison, Commerce Clause challenges to the major economic legislation of the New Deal and Great Society were never going to get anywhere. It was the GFSZAs and VAWAs of the world that were in jeopardy. The reason is that there was a national consensus that the federal government had the power to regulate the national economy, including by creating national welfare programs. There was less of a consensus that it could regulate anything it wanted to based on essentially pretextual connections to interstate commerce.
The problem with Commerce Clause challenge to the individual mandate is that it is bona fide national social welfare program in the tradition of the FLSA, ERISA, etc. It is not one of these laws, such as the GFSZA (or the Partial Birth Abortion Ban Act) which leave you scratching your head as to why national legislation is needed.
If I recall correctly, you have compared HCR to ERISA and other Great Society programs in the past. At any rate, that is the proper analogy. This, I think, is why most courts would see this as an easy question and the chances of the law being struck down as less than 1%.
March 23, 2010, 10:52 amalkali says:
@Peter: I think it is strange that neither Adler nor Kerr have cited an example of Congress using the commerce power to compel individuals to buy goods or services from a particular type of corporation or business.
The individual mandate is enforced via the income tax system, which falls under Congress’ 16th Amendment power rather than the commerce power.
March 23, 2010, 10:55 amAdam Sullivan says:
The preassumption in any assessment of likelihood to get heard/struck down is the strength of the theory. I agree that the Commerce Clause combined with state sovereignty arguments are unlikely to get anywhere.
The only thing that stands out in the text of the Act (of what I have read so far) is that the mandate mechanism appears to be set up as a capitation. I posted the details on last night’s thread here.
http://volokh.com/2010/03/22/what-are-the-chances-that-the-courts-will-strike-down-the-individual-mandate/#comment-779652
I failed to mention in that post that the flat $750 fine / levy per head itself supports the capitation theory.
If it is a capitation the mandate will be struck down. Altering the mechanism to not be a mandate would be easy were it not for the filibuster. I am interested in any comments on the capitation theory.
March 23, 2010, 10:59 amjnheath says:
Orin, what about SCOTUS reviewing a *state* law that required commercial activity (such as specific purchases) by citizens? Perhaps it would be within police powers, but would it tread upon the dormant Commerce Clause, the “dormant” area being the entirety of conceivable economic activity which Congress has chosen to “regulate” by not regulating it? How would SCOTUS’s opinion of the health care mandate be colored by a state enacting such a law later this year? Would this be a way to back-door a challenge to SCOTUS, perhaps using a due-process argument against a state purchase mandate, then extending it to federal law? Of 50 legislatures surely one might provide a federal issue for a test case.
And re precedent for purchase mandates, federal law from 1792 far into the 19th Cent. required every adult white male to keep a musket and accoutrements. It was occasionally enforced by state courts (I have a couple cites somewhere).
March 23, 2010, 10:59 amDavid Schwartz says:
alkali: Then the question is whether Congress can use its taxing power to do something other than tax and thereby accomplish indirectly what it could not do directly. For example, I would hope that a 100% income tax on all eminent domain compensation payments would be unconstitutional.
See Bailey v. Drexel Furniture Company and US v. Butler. I think these may no longer be good law, but I think there’s as good a chance the court would still accept that it’s impermissible to use a tax for an regulatory purpose that would itself be impermissible as there is it would accept any of the other arguments.
However, I think the Supreme Court will likely hold that in this particular case, the combined commerce clause and taxing clause powers permit this. If the regulatory purpose is permissible rather than impermissible, why strike down the tax? And I don’t think the S.C. would hold this regulatory purpose impermissible.
So ultimately, the tax clause argument comes back to whether the regulation it implements is permissible.
March 23, 2010, 11:05 amAdam Sullivan says:
If it words it right, just about anything.
March 23, 2010, 11:07 amAdam Herman says:
Question: Wouldn’t any court taking the case have to actually justify the law? An individual mandate is an unprecedented expansion of Congress’ commerce clause power. Seems to me if they just wave their hands and say this is a legitimate commerce power, it means that Congress can mandate the purchase of anything, can’t they?
It would seem weird given the Lopez and Morrison decisions to start allowing the commerce power to expand again.
March 23, 2010, 11:09 amDangerMouse says:
So if you have no income, there’s no mandate to buy insurance? Really? So, for example, full-time students who have zero income while attending college, would not have to buy insurance?
March 23, 2010, 11:10 amJP says:
Hey, I asked that early this morning in a previous thread! (http://volokh.com/2010/03/22/what-are-the-chances-that-the-courts-will-strike-down-the-individual-mandate/#comments — scroll to the posts from JP). I’m glad the question is starting to bubble up in other peoples’ minds (b/c I thought I was missing something); Professor Kerr keeps saying the case must go through the circuits first, and he’s probably right. I’d just like to be sure.
The answer I got last night from “Andrew” is that because Congress gave lower courts concurrent original jurisdiction, the Supremes have discretion not to hear the case, such discretion being guided by the issue of “practical necessity”. Andrew’s unstated conclusion seems to be that the high Court (under its general attitude of avoidance) would refuse to hear the case because it can be filed somewhere else.
A bit of digging shows that Andrew’s research comes from (perhaps) an earlier version of the online annotated piece on the U.S. Constitution’s Art. III, Sec. 2, Cl. 2, published by the Justia U.S. Supreme Court Center. (See Justia.com U.S. Supreme Court Center, U.S. Const. Annotated & n.1097, at http://supreme.justia.com/constitution/article-3/32-original-jurisdiction.html. (I say “earlier” b/c the footnote numbers Andrew quoted are different from what appears online.)) The site gleans the “practical necessity” standard from Texas v. New Mexico, 462 U.S. 554, 570 (1983). Interestingly, the site says that this practical necessity standard applies no matter whether the Supreme Court’s jurisdiction is exclusive or concurrent. (See Justia.com U.S. Supreme Court Center, supra, n.1099.) Now, I haven’t had time to review the cases, but it strikes me as a copout that the Court could simply refuse to hear a case over which it has exclusive original jurisdiction simply because it doesn’t want to. But I’ll give the Court the benefit of the doubt pending further examination.
March 23, 2010, 11:18 amAdam Sullivan says:
You have run across why it is a capitation.
read the Internal Revenue Code 5000A that they just added. All individuals are subject to the fine/levy and incur it unless they can demonstrate they have insurance or are covered by someone else. All individuals – not just filers who had enough income to be required to file.
That is why it is not an income tax or a tax on any activity. It is a per head tax that one is exempted from paying if s/he can demonstrate proof of insurance (or meets the Conscience exemption).
Not a tax on activity – a tax on your head. Capitation.
March 23, 2010, 11:28 amJoeSixpack says:
I don’t see much of a difference between the government giving tax incentives to buy products (using Ronny in Texas’s example of cash for clunkers or the housing credit or the mortgage interest deduction) and instituting financial penalties for not doing it. Would the mandate be any different if Congress raised everyone’s taxes and then offered deductions and credits for people who buy health insurance? You end up in the same place. Maybe there is a technical legal difference but not a substantive one. That’s why I don’t see the Court overturning.
March 23, 2010, 11:29 amDangerMouse says:
Thanks. Then it seems that for the tax to be constitutional, it would have to be in proportion to the population of the people in the various states. Right?
March 23, 2010, 11:38 amSteve says:
I think AF is exactly right. Orin has written previously about how the Court only enforces Commerce Clause limitations in trivial cases where it hardly makes a difference (like in Lopez, where the constitutional defect was easily remedied) but I think the actual distinction is a little less cynical. This bill represents genuine regulation of the national economy, squarely within the post-New Deal understanding of the Commerce Clause (although people are free to disagree with that understanding, of course). Thus the Court can uphold it without throwing up its hands and declaring that the Commerce Clause allows everything.
People who want to frame the individual mandate as “regulation of those who are declining to participate in economic activity” are framing the issue in a helpful way, but I don’t think they realize that the courts may not accept their framing. The individual mandate is one small part of a comprehensive piece of economic regulation, and arguably an essential part. A court won’t necessarily accept that the mandate needs to be defended on its own merits as though it were a standalone piece of legislation.
March 23, 2010, 11:45 amkovarsky says:
orin -
under 28 usc 1251(b)(2) the supreme court has original but not exclusive jurisdiction over disputes between a State and the United States. there are political reasons the suit might be brought there first. the Court’s original jurisdiction is not mandatory, although the criteria for remitting the case are not always super-clear. (someone upthread correctly notes a potential distinction between discretionarily declining jurisdiction over cases in which SCOTUS jurisdiction is exclusive and cases in which it is shared with the district courts.)
i’m not suggesting that this WILL be the litigation strategy, or that it is necessarily the best one. but there does appear to be a way to get it in there without going through the circuits.
For a case on the question of the Court’s criteria for declining original jurisdiction pursuant to its discretion, see California v. West Virginia, 454 U.S. 1027. this is, of course, an “exclusive” jurisdiction case, but that jurisdiction would presumably be harder for the Court to decline than power in a concurrent jurisdiction case.
For a good article snippet on the question, see David Shapiro, 60 NYU L. Rev. 543, 560-61. there’s also some stuff on this in chapter 3 of Hart and Wechsler.
i happened to have just looked at this stuff for my article on original habeas jurisdiction.
-lee
March 23, 2010, 11:47 amuh_clem says:
Among other provisions, if you would pay more than 8 percent of your income for the cheapest available plan, you will not be penalized for failing to buy coverage.
That’s why it’s not “capitation”. It’s directly tied to income, and those earning less than a certain amount are exempt from penalties.
March 23, 2010, 11:47 amElliot says:
Sounds like everyone knows a great deal, but nobody knows what the court will do.
March 23, 2010, 11:53 amMalvolio says:
I’m curious. If Congress has the power to punish acts it dislikes through “taxes” under the 16th Amendment — basically, fines without judicial determination — why cannot it draft individuals into punishment battalions under its power to raise and equip the armed forces, thereby accomplishing incarceration without judicial determination?
Striking auto worker at government-owned plants? Draft ‘em. Suspected drug dealers and mobsters? Uncle Sam wants you. Militant right-to-lifers, uncooperative corporate chieftains, over-energetic journalists, recondite Republicans — put them all in uniform and send them to shovel gravel in South Dakota somewhere.
Eventually, we would only need the courts for death-penalty cases, and maybe not even then if there’s a big-enough war going on.
March 23, 2010, 11:53 amJP says:
Kovarsky:
Thanks for the info.
-JP
March 23, 2010, 11:57 amSara says:
Your discussion re discretion and concurrent jurisdiction, sounds right and brings me back to the long ago days of looking at this — but I don’t really see a cop out because the alternative is to appoint a special master to hear the case first, anyway.
March 23, 2010, 11:59 amDavid Schwartz says:
The difference is that this penalty can reasonably be argued to be a key part of a comprehensive piece of regulation whose primary purpose is the regulation of commerce.
March 23, 2010, 12:04 pmjnheath says:
Malvolio has a point, in that the militia powers are arguably broader than the Commerce power and allow Congress to reach any individual. Congress could require “the militia” (defined to include everybody) to buy health insurance, and prohibit them from driving more than 55mph on the highway or carrying a gun within 1000 feet of a school, etc. The courts are even more deferential of military affairs than commerce regs.
March 23, 2010, 12:12 pmGuest 101 says:
I asked this question in the first thread, but nobody seems to be following that thread so I am reposting here.
What are people’s thoughts on whether the individual mandate is unconstitutional on 5th amendment due process grounds, because it is a taking of property from one private party (a citizen)and giving it another private party (an insurance company) for non-public use (that is, the purchase of an insurance contract is a private transaction)? Regardless of whether the insurance contract is ‘just compensation’ for the taking of my property, the government cannot compel me to give my property to another private party if there is no public use. The public use/benefit of Obamacare is providing insurance to those who want/can’t afford it, but how is it a public use to provide a policy to someone who can afford but does not want one, or who would prefer to purchase a policy that differs from (and doesn’t meet the criteria for) what the government has approved as being a qualifying policy?
One could argue that forcing individuals to purchase a policy they don’t want has indirect benefits to the entire Obamacare scheme, but I would think the connection between the confiscated property and the use/benefit needs to be more direct/proximate. Under an ‘indirect benefits’ test there really would be no limit to the taking of property from one private party and giving it to another so long as the second party produces a good or service that helps people or that people need. For example, the government could confiscate Microsoft and give it to Aetna, on the theory that that Aetna could now provide cheap policies to everyone (at no profit or even at a loss) as they can rely on the profits from their new Microsoft division.
March 23, 2010, 12:12 pmAdam Sullivan says:
I differ on the basis that you are citing one of many factors that go into how much of the $750 you will be required to pay. For brevity, let me ask you this – if the government simply assessed an excise tax of $2,000 per person (clearly a capitation) and then allowed that amount to be reduced for affordability on a case by case basis using numbers filed on their income tax return, would that excise tax become an income tax?
i don’t think so. Right now I am looking into how capitations have been collected and if collectors settled for less than the full capitation. If there is a provable track record of that happening, and that such is normal in capitations, then the Senate’s wording is simply instruction to the IRS on how little of the capitation they are allowed to collect.
But read 5000A (starting at page 321 of the bill) – it is a capitation with rules on how to avoid paying the full capitation.
BTW – capitations aren’t unconstitutional, but they have to be apportioned among the states based on census figures. there is no mechanism in this law for doing so. Furthermore, exemptions for certain religions then violates apportionment unless those same individuals are exempted from the Census (which they aren’t).
March 23, 2010, 12:23 pmAdam Sullivan says:
Guest 101 -
It has been sold as a mandate and the PR campaign around the bill said “mandate”.
But the mechanism for the “mandate” is a per-head tax that you are exempted from if you show proof of insurance, or prove you are an exempted individual (like members of certain religions, participants in Health Care Ministries, or certain members of Congressional staff – no kidding on that last one).
March 23, 2010, 12:27 pmCrazyTrain says:
Although I believe the Supreme Court has original jurisdiction, it is concurrent with the district courts and there is zero chance that the Supreme Court would hear the case as an original matter. The Supremes only have original and exclusive jurisdiction in cases between states (eg California v. Arizona).
March 23, 2010, 12:33 pmGuest 101 says:
There is no substantive difference between this ‘per head tax’ and a fine for not having insurance. We might as well say that NY State has a per head tax that I am exempted from unless the state can show proof that I littered.
March 23, 2010, 12:35 pmSteve says:
But the mechanism for the “mandate” is a per-head tax that you are exempted from if you show proof of insurance, or prove you are an exempted individual (like members of certain religions, participants in Health Care Ministries, or certain members of Congressional staff — no kidding on that last one).
Every Congressional staff member has insurance as a federal employee. They are not “exempt” from the mandate.
March 23, 2010, 12:37 pmJP says:
Just a thought:
Despite being tagged as H.R. 3590, wasn’t the Patient Protection and Affordable Care Act that President Obama just signed in fact the “Senate Bill”? I know it takes a few inferential steps to get to the next point, but if the Individual Mandate is a Congressional exercise of Art. I, Sec. 8, Cl. 1′s general welfare taxing power, could opponents successfully argue that the Act is a “revenue bill” that had to (and failed to) originate in the House under Article 1, Section 7?
Would the reconciliation bill cure this problem? Would the issue be justiciable under the Enrolled Bill Rule of Marshall Field & Co. v. Clark, 143 U.S. 649 (1892) in any event?
March 23, 2010, 12:38 pmAndrew says:
OK, here’s my prediction.
If this gets to SCOTUS, then SCOTUS will not address whether the individual mandate is authorized by the Commerce Clause, and will not address whether the individual mandate is authorized by the Sixteenth Amendment. Instead, SCOTUS will simply say that the individual mandate is currently phrased as a capitation, although it could possibly be slightly adjusted by Congress to avoid being a capitation.
Thus the decision would be largely symbolic, given that the statute could be easily fixed by Congress. And yet the Senate would lack the votes to do so.
I put the chances of this happening at 25%. Other scenarios for striking down the mandate seem less likely.
March 23, 2010, 12:46 pmkovarsky says:
CrazyTrain -
i agree that the Court would never exercise its original jurisdiction, but that doesn’t mean that the plaintiff-states won’t file there, in addition to in district court. i wouldn’t discount the PR calculus, whatever that may be, since (whatever people in this thread might believe) the objective chances of (1) overcoming standing obstacles and (2) prevailing on the merits are slim. the state AGs aren’t dumb, they know that. so their calculus is already largely political.
March 23, 2010, 12:47 pmJP says:
Sorry for taking up space on the Article I, Section 7 issue. Got my answer — H.R. 3590 was an unrelated tax bill that the Senate marked up.
March 23, 2010, 1:09 pmDjDiverDan says:
Which ones (“intellectually honest liberals”) are you referring to???? This seems a bit like searching for a Cadillac in the Cracker Jack Box (or, to provide some political balance, looking for a “small government Republican” in the Bush Administration).
March 23, 2010, 1:19 pmBill Twist says:
OK, I have a question: Has anyone looked at the health insurance mandate from the standpoint of the right to freedom of association? After all, the government would be compelling you to associate with an insurance company upon pain of extra taxation.
March 23, 2010, 1:21 pmDougInSanDiego says:
Well now, this is interesting ……….
The prevailing opinion seems to be that SCOTUS is unlikely to reverse an act of Congress, regardless of Constitutional injury, simply because of “separation” beliefs (i.e., fear of taking a stand).
But now – if a lower court had already ruled AGAINST the Mother-Of-All-Bills it might just place SCOTUS in the position of HAVING to take a stand. Hmmmmmm!
Then that leads directly to another question: “Why not take a page out of the liberals’ playbook and shop venues? Surely, within ONE of the dozen or so States who seem bent on opposing the federal government’s absconding with their rights, a sympathetic curt can be found. Why not, then, survey the possibilities, rank them according to sympathy and courage, file with that court, hope for the best, and maybe come out with a positive result – and THEN see how SCOTUS reacts?
You know -sort of how the libs proceeded with the Prop 8 case ………….
March 23, 2010, 1:34 pmDougInSanDiego says:
funny!
March 23, 2010, 1:35 pmporterhouse says:
If the draft is constitutional, then the mandate is probably constitutional.
March 23, 2010, 1:45 pmii says:
If this were so, then why wouldn’t state car insurance mandates be unconstitutional too?
March 23, 2010, 1:46 pmAndrew says:
Here’s a plain-English summary of the individual mandate penalty:
Anyone want to comment about whether or not this is accurate? If income is zero, wouldn’t a person have to pay the $750 (or $695)? How could this possibly be an income tax?
March 23, 2010, 1:47 pmyarrrrr says:
FWIW, there are two different lawsuits… Virginia is filing a separate lawsuit because they have an actual law which forbids a mandate…
March 23, 2010, 1:49 pmPeter says:
well if it is a tax, I stand corrected. it will be upheld.it does not appear to me to be one though, as it imposed on all persons and not just those who produce income.
if I could burden you folks with my delusions, the tax code would be an ideal target for a const amendment–Congress may vary income taxes only according to income, and may not enact laws providing or establishing deductions, credits or alllowances. Of course determining what actually constitutes income would still be a headache and serve as a source of chicanery, lobbying and foolishness. Barring Congress from using the tax code to control activity would eliminate a lot of lobbying and corruption and would also end economic distortions created by the code, ie fueling the housing boom, or insulating people from the cost of medical care (by allowing employers to deduct the cost of providing med coverage).
March 23, 2010, 2:04 pmArrowSmith says:
No it doesn’t. I fail to see how the individual mandate = income tax.
March 23, 2010, 2:13 pmArrowSmith says:
I’m just amazed that liberals who bleated for years about the Patriot Act which did ZERO harm to them are silent as their REAL liberties are ripped from them with this mandate.
March 23, 2010, 2:15 pmJoe says:
If this were so, then why wouldn’t state car insurance mandates be unconstitutional too?
Because it’s a STATE mandate.
Good God, what is it with all the intellectuals who fail to appreciate limited government and that even the authority to mandate for preexisting conditions be allowed have no basis in the Constitution? Almost the entire bill is blatantly unconstitutional. Oh, but precedence… damn precedence. Just because some idiot judges eviscerated the constitution in years past doesn’t mean current judges have to check their brains at the door.
Back on earth, though, the Supreme Court is largely composed of spineless cowards who have no concept of limited government nor genuine respect for the US Constitution (and I do stand by that–to them it’s an intellectual game.) So, the experts are probably right, this travesty of a bill will be declared Constitution based on the little known “because we like it” clause.
March 23, 2010, 2:35 pmSacrastro says:
As defined by REAL Americans! Not like the “liberties” defined by libs, who are clearly, clearly wrong. How could they not follow the dictates of ArrowSmith, the internet liberty czar?
March 23, 2010, 2:36 pmShelbyC says:
Of course not. It can’t outlaw gay sex, or abortion, or require states to admit voluntary confessions without some pro-forma warning.
March 23, 2010, 2:45 pmgeokstr says:
IANAL, so please expound on this concept more fully.
Does this make anything enforced through the income tax system constitutional, like literally anything that can be remotely and even farcically tied to “interstate commerce”, like growing your own food? If so, when can we expect, under the new HCR, tax penalties for being overweight, or exceeding the permissible level of daily consumption of animal protein, or even for protesting the use of IRS enforcement of these things?
What I have been able to glean from two years of following this blog of the supposed top legal minds on the conservative/libertarian side is that even they have apparently given up on insisting that there are any constitutional limitations whatsoever on what government formed to serve us can do to us instead.
I guess the fight for limited government is now officially over. 1984 will be upon us in no time. How doubleplusgood will that be, hey?
March 23, 2010, 2:48 pmNunzio says:
Geokstr,
Take heart. There are financial limitations on what government can do. Soon enough our national debt will surpass 100% of our GDP. We’ll eventually run out of money.
March 23, 2010, 2:56 pmBill Twist says:
Because if I don’t want to associate with a car insurance company, I can opt out by either not owning a car, or if I own one not registering it with the state and drive it completely on private property (like a race car, for example).
It would seem that the only way to opt out of the health insurance mandate is to kill yourself.
March 23, 2010, 4:08 pmPeter says:
If the mandate is a tax/revenue measure, then contrary to assertions I have read at tnr.com, it could be easily removed by a future Rep Congress (and President) through the reconciliation process, ie it would not require 60 votes in the Senate to get rid of it. That is why it was awfully kind of the President to delay its implementation for four years. If Reps can win the House in ’10 and the Senate and White House in ’12, then the mandate will die before it goes into effect. If, maybe, could have, perhaps, would, should….
March 23, 2010, 4:13 pmAdam Sullivan says:
That is my take. The law could be changed to avoid capitation – if it gets through the Senate.
Right now I am looking into the history of poll taxes. I have had people tell me that this is not a poll tax / capitation because the amount you pay is based (in part) on income. Plenty of poll taxes in europe and the US had the amount paid based on income. In many cases the indigent were exempted. Furthermore, there were often exemptions for “churchmen” on the basis of conscience – the same thing we have in this law.
March 23, 2010, 4:27 pmJustin says:
It is not true that the mandate need be upheld in one of the circuit courts. Whether or not it is upheld it will make it to the supreme court. If it is upheld the plaintiff will proceed. If it is struck down the defendant will proceed.
March 23, 2010, 4:28 pmDougInSanDiego says:
Disagree.
Unless collared, Congress can do any or all of the things you mention. I’m not saying people would stop doing those things just because they were outlawed (i.e., if HIV does not stop gays from having unprotected sex, why would “illegal” do so?). But your question was not about behavior but about congress’ authority or willingness to do whatever they please.
March 23, 2010, 4:30 pmAdam Sullivan says:
Driving is a privilege.
Life is a right.
The state can mandate you do something to get and keep a privilege (like demonstrate you can drive safely).
The state cannot issue you a “respire and maintain temperature above the room in which you find yourself” permit.
March 23, 2010, 4:31 pmdeepthought says:
Here’s a question about timing: Since the individual mandate doesn’t go into effect until 2014, are the lawsuits challenging it premature? Doesn’t a plantiff need to show particularized harm?
Just askin’.
March 23, 2010, 4:48 pmgeokstr says:
I’m not so certain. We were, by any rational, honest method of accounting, out of money a long, long time ago. I’m a CPA with 35 years of accounting, financial analysis and reporting with major corporations, so I do know a bit about accounting methods.
There’s this 100 trillion of unfunded liabilities in SS, Medicare/Medicaid, Obamacare, federal, state and local pensions looming out there. Social Security started drawing on the non-existent, so-called empty “lockbox” last month, six years ahead of previous estimates, and there will soon be only two workers to provide the cash, via current tax revenues, to support each oldtimer. A number of states are about to go bankrupt because of decades of rampant leftism. CA’s own treasurer said he even researched the possibility of getting the feds to revert his state back to a territory so they could legally bail them out.
But then, for the left, running out of money is not a bug, it’s a feature. Alinsky’s Rules, which the left has been following to the letter for 50 years, advocate overloading the system to bring it down. Both Obama and Hillary are big fans of his. Marxist Professors Cloward and Piven were the authors of strategies in the 1960′s to do exactly the same thing, and they are in fact where Rahm got his infamous statement from, about never letting a good crisis go to waste.
Any private company that ran its finances like this would have its officers and directors in prison in short order.
March 23, 2010, 4:51 pmDoc Merlin says:
The states appoint the officers, and the chain of command would still need to be followed. So, officers appointed by the states could just tell their militia folks to ignore the rule.
March 23, 2010, 4:56 pmAdam Sullivan says:
Hey Andrew -
Here is an interesting blurb on Poll taxes in the middle ages from a British genealogy site (http://www.exploregenealogy.co.uk/PollTaxMiddleAges.html)
It is not uncommon to find poll taxes / capitations that varied based on people’s ability to pay / income.
What makes this tax a poll tax / capitation is that it is a per head tax on every person in the land ($750) which is then adjusted on income.
But more to the point, the entire 5000A section that was just added to the Internal revenue code is very clear on what it is taxing – it is taxing people. It taxes their being and does so on the basis that their being imposes costs on the rest of society. That was done to fulfill the burden of a commerce clause justification. But it also makes it a poll tax. And article 1 section 9 is clear on how such taxes (capitations, levies, …) are to be apportioned.
March 23, 2010, 4:58 pmDoc Merlin says:
The draft was explicitly allowed under congresses powers in the constitution, doesn’t anyone read the pages of stuff that come before the first amendment anymore?
March 23, 2010, 5:00 pmOctavian says:
I think its time for the US Supreme Court to overrule as precedent its 1942 decision, Wickard v. Filburn, which was wrongly decided in the first place. The definition of commerce is “buying and selling of goods.” In Wickard, Roscoe Filburn was not even engaged in the buying and selling of goods. Therefore, Filburn’s activities did not constitute commmerce, much less commerce among the several states.
March 23, 2010, 5:02 pmJRL says:
I guess I’m alone in thinking the mandate would be struck down 9-0. It doesn’t take a wise Latina to see that this is an egregious overreach.
March 23, 2010, 5:03 pmDudeman says:
JRL – you need to have some empathy for the uninsured.
March 23, 2010, 5:16 pmNobody Really says:
If war is constitutional, rounding up citizens into internment camps is constitutional, or something like that …
The fact that the Federal Government has a broad power for one purpose doesn’t mean it has equivalent power for any purpose it wants.
March 23, 2010, 5:27 pmMark Field says:
Suppose Congress were to draft every single American — infants, children, teenagers, adults, elderly, disabled; EVERYBODY — into the military. It then passes a law which provides that everyone who doesn’t volunteer goes on inactive status but remains covered by government-provided military health care.
Anybody want to argue this is unconstitutional?
March 23, 2010, 5:34 pmNobody Really says:
Justin, I think the point is practical, not procedural. If a lower court doesn’t overturn, it is much less likely you will get the votes on the SC to hear the case. They just won’t want to get involved in the politics of it. However, if you get an overturn, they can’t avoid the politics, and will likely hear the case.
Certainly if for some reason the SC was itching to reverse they could take the case either way.
March 23, 2010, 5:39 pmdjf says:
The irony of this potential constitutional challenge is that, if it succeeds, it will primarily screw over the insurance companies, who would then not be able to subsidize the costs of the other (constitutional) regulations.
March 23, 2010, 5:51 pmAdam Sullivan says:
The Heritage Foundation forwarded the capitation argument in December when the Senate authored the language.
http://www.heritage.org/Research/Reports/2009/12/Why-the-Personal-Mandate-to-Buy-Health-Insurance-Is-Unprecedented-and-Unconstitutional
They discuss how the mandate is transformed into a penalty/tax so as to get Commerce Clause substantiation, and then says …
And then points out …
March 23, 2010, 5:53 pmAdam Sullivan says:
Maybe they should have been a bit more cautious when they and the pharmaceuticals started embracing Democrats and threw Republicans under the bus with their campaign contributions over the last 2 cycles and their intensified lobbying in favor of the goodies in this law.
I have no sympathy – the pharmas have been paying to have patent law distorted for the last 2 decades to the harm of consumers of a broad variety of products, not just drugs.
Live by the sword of economic distortion via lobbying, die by the sword of economic distortion.
March 23, 2010, 5:59 pmHere Come the Lawyers! says:
[...] smarties over at the Volokh Conspiracy have posts here, here, and an update here, analyzing what the courts may do with the individual [...]
March 23, 2010, 5:59 pmAdam Sullivan says:
BTW -
The enforcement of this “mandate” is toothless
12 ‘‘(A) WAIVER OF CRIMINAL PENALTIES.—In
13 the case of any failure by a taxpayer to timely
14 pay any penalty imposed by this section, such
15 taxpayer shall not be subject to any criminal
16 prosecution or penalty with respect to such fail
17 ure.
18 ‘‘(B) LIMITATIONS ON LIENS AND LEVIES.—
19 The Secretary shall not—
20 ‘‘(i) file notice of lien with respect to
21 any property of a taxpayer by reason of
22 any failure to pay the penalty imposed by
23 this section, or
24 ‘‘(ii) levy on any such property with
25 respect to such failure.’’.
That is on page 336. http://democrats.senate.gov/reform/patient-protection-affordable-care-act-as-passed.pdf
The fact that the mandate is basically unenforceable (unless you manage to overpay the IRS and they simply take it out of your refund) means that individuals will discover this and not pay. Wonder if the CBO caught that when they scored it, or simply assumed universal compliance.
March 23, 2010, 6:03 pmMark Field says:
Yes, I think this is the biggest single reason why striking down the mandate alone will be unattractive to the Court.
March 23, 2010, 6:03 pmSyd Henderson says:
Did they leave in the end-of-life counseling?
Some of the people here are favoring decapitation.
March 23, 2010, 6:12 pmbyomtov says:
Alkali,
Doesn’t Congress compel individuals to take out mortgages and buy houses, under penalty of paying extra taxes if they don’t? Doesn’t it similarly compel individuals to contribute to IRA’s?
More broadly, Congress routinely uses the tax system to get individuals, and businesses, to do things it wants them to do. I don’t see a huge difference here.
March 23, 2010, 6:15 pmShelbyC says:
Going by precedent, such rounding up is constitutional, no?
March 23, 2010, 6:18 pmii says:
Huh? What’s-his-name’s question was about the First Amendment’s free association doctrine. Last I checked, the First Amendment is incorporated against the states. Thus, if the HCR insurance mandate is violative of the 1A federally, it would stand to reason that state car insurance mandates, through the 14th Amendment, would also be unconstitutional.
March 23, 2010, 6:32 pmii says:
This doesn’t really address the issue of whether the First Amendment’s freedom of association doctrine can be applied to government requirements to make purchases. There’s no “oh, well, this industry is more life-based than privilege-based, so, yeah, the 1A applies here but not there” line of cases.
The only difference between the two is that the health insurance mandate requires you to get insured if you draw upwards of a certain income, and the car insurance mandates require you to get insured if you drive. In the latter case, most would say, “if you don’t want to buy insurance, don’t drive.” In the former, one could easily say, “if you don’t want to get insured, don’t make so much money.” Certainly earning X amount of dollars is not a “right” any more than driving is. Either way, if freedom of association via the 1A applies to one, it will logically have to apply to the other.
March 23, 2010, 6:45 pmDan Lavatan says:
However, the bill originated in the Senate whereas being a revenue bill it must originate in the house. They don’t have the votes anymore to originate a new bill in the house and pass it in the senate.
March 23, 2010, 9:39 pmDan Lavatan says:
I assume they will take your tax money and first apply it to the portion associated with the mandate. Then they will place a lien or levy on the rest of your unpaid tax. Also, they could sue in civil court and a judge could place such a lien, garanish wages, order you to pay and put you in jail for contempt, etc. It just says the executive branch (secretary) won’t place a lien. So I’m sure they’ll still try and collect.
March 23, 2010, 9:43 pmMike Hansberry says:
How many “events” can fit on the head of a pin?
http://healthcarereform.nejm.org/?p=2764
According to Jack Balkin:
[i]The individual mandate is not a direct tax. The House’s version is a tax on income. Under the Sixteenth Amendment, income taxes do not have to be apportioned, regardless of the source of the income.[/i]
so far so good, but here’s the kicker as Balkin continues:
[i]The Senate’s version is an excise or penalty tax. It is neither a tax on real estate nor a general tax on individuals. It is a tax on events: individuals who are not exempted are taxed for each month they do not pay premiums to a qualified plan. [/i]
So [u]not buying insurance[/u] is an event?
Wait….was that another “event”? Just how many events did, or should I say did not, take place in the milli-second that just elapsed?
Raich and Wickart concerned the cultivation of crops and SCOTUS found that Congress had the power to regulate that activity, but according to Balkin’s view, we can be fined, or taxed, for not cultivating crops! That’s not progress from my point of view.
Massa Jack, massa Jack, I done picked all your cotton and my fingers are a mess, please leave me be massa Jack!
March 23, 2010, 10:43 pmMike Hansberry says:
“excise” taxes a la Balkin (direct taxes magically transformed to indirect taxes)
The Senate wishes to regulate this or that item of commerce, so dear citizen you must pay a tax. However, if you don’t want to pay more than $700, you can opt to pay $700.
By generously providing you this option to avoid paying more than $700, Congress thus tranforms a direct tax into an indirect tax. Obviously, the “event” being taxed is the non-payment of the higher amount.
March 23, 2010, 11:39 pmJ. Aldridge says:
But can say the states can’t do none of that which pretty much makes Congress equivalent to the old English Parliament who knew no limitations to power.
March 24, 2010, 12:26 amMike Hansberry says:
If congress has the power to force me to buy a product under the commerce clause, am I invading Congressional prerogitive when I decide to purchase anything myself? After all, if I mispend any portion of my money, I might then be unable to spend the remaining portion as Congress desires.
Does Congress own my purchasing decisions 100% (plenary authority!) or do I still control some small piece?
March 24, 2010, 12:27 amRicardo says:
First, they are not liabilities in the legal sense. Courts have repeatedly rejected lawsuits from people who have tried to take the federal government to court to pay out benefits it had cut. So they are not debt backed by the full faith and credit of the United States that people can recover in court. Moreover (and I know you hate to think of it this way) the government also has trillions of dollars in “assets” in the form of its taxing power. Intangibles like revenue streams on patents and good will show up in corporate balance sheets — future tax revenues also ought to show up on the federal government’s own balance sheet.
I’m not sure what you are basing this on. Do you have a citation? In FY2009, OASDI (Social Security + disability insurance) receipts exceeded outlays by $137 billion as they have every year since 1983 when Reagan increased the payroll tax. It is expected to continue to run surpluses until around 2016.
I’m curious. I know you’ve said you don’t regard Bush as a Real Conservative. But is he also a member of the left? After all, it was the Bush deficits that meant the payroll tax revenue we were collecting from 2001-8 was used for government spending rather than paying down the federal debt. Moreover, both the Tea Party movement and the current Republican party seem to regard both meaningful spending cuts (like cuts in SS and Medicare benefits, not wimpy “spending freezes” on discretionary, non-defense spending) and tax increases as unthinkable. If there is a fiscal crisis in the U.S., it will be because of people like that. Is the Tea Party movement part of a leftist plot to cause the collapse of the U.S. economy?
March 24, 2010, 1:37 amJeremyR says:
Speaking as someone that does not have health insurance, and cannot afford to buy it, this scares the hell out of me. Yeah, yeah, I know supposedly I will have subsidies or something, but I don’t want to take them. (I could qualify for food stamps, but I don’t want them, nor really need them).
So this is not an academic question for me, it’s about me going to jail or not. And I have to think, there are a lot of people out there in the same position. I really think there’s going to be a lot of Ruby Ridge style stuff when it comes to pass, and the IRS starts trying to take people to jail.
March 24, 2010, 1:40 amJohn Herbison says:
Lets see now. A gaggle of commenters has suddenly realized that the judicial branch of government is the only one left that is still controlled by Republicans/Republican appointees. So help me to understand–is judicial restraint now a bad thing?
To paraphrase the Reverend Jeremiah Wright, Republican America’s chickens–[pause for dramatic effect]–are coming home to roost.
As a (mostly) libertarian Democrat, I have mixed feelings about health insurance reform, but I’ll be damned if schadenfreude doesn’t smell sweet.
March 24, 2010, 4:54 amDesiderius says:
Ricardo,
“Moreover, both the Tea Party movement and the current Republican party seem to regard both meaningful spending cuts (like cuts in SS and Medicare benefits, not wimpy “spending freezes” on discretionary, non-defense spending) and tax increases as unthinkable.”
Yes, libertarians have ever been the most voracious defenders of Social
SecurityImmobility and Medicare. Wow.At the end of the day, the flawed picture of reality on evidence from our anti-libertarian commenters will either be their doom or the doom of us all. I just can’t see how it’s sustainable.
March 24, 2010, 8:48 amBill Twist says:
Not quite right.
In every state of the Union, I can buy a car and *NOT* get insurance on it. I just can’t license it and register it for use on public roads. Take for example a dedicated race car: You don’t need to register them, or license them, and you don’t need to carry liability insurance. Yet they are a car. So even if I do buy a car, I don’t necessarily have to buy insurance. I only have to buy it if I intend to drive the car on public roads. Another example would be a farm vehicle: If it stays on private property, you don’t have to purchase insurance.
Again, the difference is that driving on public roads (or private property used by the public for vehicular transport or parking) is a privilege, not a right. One could argue that driving on your private property is a right: You don’t need a license to do it, and I don’t believe you can be charged with driving without a license if you don’t go on public roads.
States have the right under their police powers to make you buy insurance *IF YOU DRIVE ON PUBLIC ROADS*.
As far as I can see, the federal government doesn’t have the power under the Commerce Clause to require you to engage in economic activity if you do not wish to engage in that activity. If it did have that power, Congress would have basically unlimited power to require you to do something. They could require you to buy a house, or a car, or many other things that could ostensibly help the economy.
They couldn’t force people to buy war bonds during WWII, which is pretty much the same thing as being required to buy health insurance.
March 24, 2010, 10:22 amRicardo says:
The Tea Party movement and libertarians are not the same although there certainly is overlap. If you are so sure that the Tea Partiers are committed to slashing Social Security and Medicare spending, can you point to a press release, position paper or public statement from any leader or organizer in the movement indicating exactly that (using actual numbers like a real policy proposal would)? I’ve looked through the websites of both the Tea Party Patriots and FreedomWorks and could not find any clear statement of fiscal policy — just a lot of pablum about limited government and low taxes.
Sustainability is a political question, not an economic one. You don’t support SS and Medicare but lots of other people do — especially the recipients who tend to vote in large numbers. Neither of the two major parties have the guts to say anything at all about spending cuts and even the Tea Partiers don’t from what I can tell by reading their websites. I would be very interested if you can prove me wrong and point to an explicit show of support for drastic spending cuts (again, cuts not wimpy spending freezes on the tiny slice of the budget we call non-defense discretionary spending) by any major figure in the Tea Party movement. I’d like to see a list of what exactly they want to cut, by how much and in what time-frame. If they don’t say that, it’s not a serious proposal and it shows they are dodging the issue.
March 24, 2010, 10:53 amRicardo says:
Given that we now know the penalty for not having insurance is in the form of a tax, I don’t see this argument getting off the ground. If your income is less than $14,000, you become eligible for Medicaid and don’t have to pay anything at all. If your income is above that, you either buy insurance or else pay an extra tax. What if instead the bill simply raised everyone’s taxes and then offered a tax break or credit for buying insurance? Either way, in practice you are only eligible for the penalty if you have income which is already subject to tax.
March 24, 2010, 11:32 amDesiderius says:
Ricardo,
Just as I voted for Obama due to Bush’s dismal spending performance, so I voted for Bush in 2004 after hearing him speak powerfully on more than one occasion on the topic of entitlement reform. I think his subsequent decline in popularity was not unrelated to the efforts of certain political operatives with the temerity to call themselves liberals or progressives to tear him down specifically for his efforts on that score.
I still remember the last minute senior-scaring ads in 1992 that almost cost Clinton my vote after I’d spent three years touting him as the next Gorbachev. I don’t think it’s viable to play moral equivalence games on this issue. Others? Sure. This one just strains credibility too far.
March 24, 2010, 2:56 pmarbitrary aardvark says:
The court does not require a circuit split, although that is the usual reason it takes cases. It can and sometimes does take cases that it thinks are very important.
March 24, 2010, 6:47 pmBush v Gore. Here, so far 14 states have sued the federal government. That’s enough of an excuse, if 4 justices want to take the case.
Now, if a lower court upholds,and there’s no split, and the court takes the case, and overturns the bill, that would be naked judicial activism of the sort Roberts so far has preferred to avoid. I find this outcome unlikely, but not undesirable.
ELC says:
I am with you 100% here.
I have a question about another aspect of this Healthcare System Nationalization Act (Phase I). I currently purchase catastrophic coverage @ $175/month. As I understand it, the feds are going to require insurance companies to cover… well, just about everything… lest the policy be non-compliant. So, whenever that goes into effect, I’ll no longer be able to keep this policy because either (1) the insurance company will no longer be able to sell it or (2) they will cease to offer it because nobody will buy it because it will be non-compliant.
If that is correct, by what tortured argument (I think that’s what it must be) is it claimed that the federal constitution grants Congress the power to dictate what goods and services a private company may, can, or must (or may not, cannot, must not) offer to willing customers?
Let me guess: it’s “regulating” “interstate” “commerce”, right?
(I can only attempt to claim this is sort of on-topic because I can’t figure out why the states’ attorneys general are looking narrowly at the issue of the individual mandate unless there is some long-standing tortured argument that says it’s constitutional for Congress to tell a company what it can or cannot sell to willing customers.)
March 24, 2010, 8:02 pmporterhouse says:
Elvis was drafted during peace time. So the federal government can draft Americans simply to maintain an army, not just during war time. Ike’s interstate highway system was built for national defense purposes and employed eminent domain. Obama could justify the mandate in order to insure a healthy pool of individuals for a potential war.
March 24, 2010, 9:20 pmgobeavs says:
This mandate is unlike the medicare/social security taxes we all pay (except for -congress). This is a government dictated commercial purchase on the individual. I’ve never seen anything like this before. It is not a tax nor is it a user-fee paid to the government for a government service. This will be legally challenging for both sides simply because the courts don’t like overturning legislated law.
March 24, 2010, 9:46 pmjd says:
Um no, My wife does not pay Midicare or Social Cecurity because she does not work. However, simply because she is an American citizen she now has to buy a product or pay a tax. So again with the liberal spin shut up and get a clue what you are talking about. At no point is this the same. One is still elective, there is no mandate to work.
March 24, 2010, 10:09 pmRicardo says:
To be sure, there were lots of other things that contributed to Bush’s unpopularity. I don’t have much use for partisan attacks from either side but if you follow the debates among economists and public finance experts, the complaint against Bush was not that he wanted people to establish private retirement accounts. The complaint was that he wanted people to be able to deduct their contributions to these accounts from their payroll taxes.
Now, you don’t have to know anything at all about public finance to realize the consequence of this will be a much larger deficit and a larger national debt. The only way to avoid this is to cut current SS benefits which the Republicans are completely unwilling to do. Nothing that Bush proposed would have reduced the debt or the deficit for the next 20 years or so. The proposal also juiced the number by making optimistic predictions of future stock market performance while making much more pessimistic predictions about future economic growth.
The same people complaining about the deficit now need to acknowledge this fact and state clearly and explicitly what they want to do differently and how it will reduce the deficit. If they do not do that, they are not going to be taken seriously by anyone who knows anything about this subject.
March 24, 2010, 11:06 pmBruce says:
Medicare is exactly that… a tax. It applies across the board to those that earn wages. The HCR bill mandating the purchase of an insurance product is not a tax because it fines inactivity.
March 25, 2010, 6:08 amThomas Paine says:
To quote John McLaughlin, “Wrong!”
Social Security and Medicare are taxes imposed on working. The taxes are then used to fund pensions and health care for the elderly.
This bill is different. It imposes a tax CONTINGENT on a citizen buying a product. This is not “uniform application under the law,” so it fails as a tax. It also has nothing to do with interstate commerce – taxing someone for doing NOTHING is not commerce.
Dies in 11th Circuit. Upheld by SCOTUS 5-4.
March 25, 2010, 10:36 ammsmith says:
Which one of you legal geniuses knows anything about the “class of activities” test that the the court will obviously consider. You also assume that activist judges will not want to become involved in overturning a tyrannical congress’s actions.
March 25, 2010, 12:17 pmJohn Lofton says:
There is no “health care” category in Article I, Section 8 of the Constitution. Thus, any involvement by the Feds (because “involvement” means spending $$$$$) in “health care” is unConstitutional. This is not rocket science.
John Lofton, Editor, TheAmericanView.com
March 25, 2010, 12:44 pmCommunications Director, Institute on the Constitution
Host, “The American View” Radio Show
Recovering Republican
JLof@aol.com
Dan Roberts says:
The individual mandate is un-constitutional. The government can require me to enter into a contract! I hope not! By what “stretch” in the constitution? If my failure, and that of millions of others, to have insurance negatively affects economic activity, the government has a constitutional remedy. The congress can “lay and collect taxes……….and provide for the general welfare” therewith providing all of us with government health care/insurance.
March 25, 2010, 1:45 pmAmericans will not stand for that; America is not about that. Our founders never, never, never envisioned such a government intrusion in our lives.
Insuring everyone is a good thing; government cannot require it of me; government can tax me and give me insurance.
Rosinante says:
The Commerce clause gives the Feds the power to REGULATE, not CREATE.
The words are not synonyms. Look it up.
The States have the right to require their citizens to pay for Health insurance they don’t want. The Feds don’t. Show me the part of the Constitution where it says, ‘The Federal Government has the authority to force the citizens to but a product’. You can’t because it isn’t there.
Not sure this matters. A this moment in time, the USA titters on the brink of civil war. Since it will be the traditional Rural vs Urban civil war, the Media, Judges and most Politicians don’t understand just how close that moment is. They all live in an urban environment and don’t know what the rustics are thinking and preparing for.
Here is a clue. How much food is there in New York City? Enough for 3 days? Maybe 4? After no food goes into the city for a week, you’se guys will be pretty hungry. Two weeks and you will be hunting, killing, cokking and eating each other. Puts the term Health Care in a whole new perspective, doesn’t it?
The fire has been laid, all that is needed is a spark, a Ft. Sumter I think it will be when some governor orders out the national guard to shoot the rioters. Then the national guard will hang the governor and the party starts.
March 25, 2010, 4:15 pmgeorge 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 16th 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.
March 25, 2010, 5:06 pmLeonardd says:
You can’t create a system that needs everyone’s participation, and then force participation because without everyone’s participation the system breaks down.
The Democrats have said they are “asking” everyone to participate, but they aren’t asking, they are forcing.
The conclusion that anything is possible if this is allowed in inescapable. The decision is clear, its mainly a matter of the personal courage and intellectual honesty of the justicies. Kennedy is the swing vote. In Heller he had a lot of intellectual honesty on the second amendment.
March 25, 2010, 7:56 pmMatt says:
Neither Medicare nor Social Security are actual mandates. A person can choose not to participate by simply not working. The insurace mandate, is and actual mandate.
March 25, 2010, 9:22 pmMike says:
I’m not a lawyer and I won’t pretend to hang with the people commenting here but it just seems to me that if this thing stands, then there is no human activity or inactivity that is beyond government control. That, my learned friends, is a new ballgame.
March 26, 2010, 12:33 amEzra says:
It’s fine to think the Supreme Court lacks the courage or principles to play its role as the defender of the Constitution here, but then I’m not sure why we should have a Supreme Court at all in that case.
On the legal merits, I think it’s quite clear that there is no precedent for Congress claiming the authority under the commerce clause to punish people for not acting. This isn’t ‘like Wickard’ — it’s categorically different. The issue there was whether Congress can regulate activity that is economic in character. Once you say yes, the question of whether the activity is too trivial to impact interstate commerce became one of legislative discretion. Lopez reaffirmed that activity that is not economic in character cannot be regulated under the pretense of an economic impact. Here, we have Congress claiming that people who do nothing whatsoever impact commerce and so can be punished. As has been noted, if that’s true, then the federal government is not one of limited or delegated powers in any meaningful sense.
It’s clear (or should be) that there were no Founders who thought this would be an acceptable exercise of federal authority, and there is no precedent for attempting to punish people for not acting. I predict the Court will let this go, because it tends to come out the door that gets the most nods at Yale Law School. But that doesn’t make it right.
March 26, 2010, 1:36 amTedd W says:
So then can Congress pass a law requiring Americans to buy GM or Chrysler cars or face a tax penalty? The difference between this law and Social Security, Medicare etc is that it forces private citizens to enter into a contract and purchase services from other private citizens. That seems to be to quote the great Joe Biden “a big ::bleep::-ing deal”.
March 26, 2010, 1:40 amHD says:
Given sufficient precedents, rulings, and interpretations, the most fundamental Law becomes detached from reality. Given unchecked greed and power in the lawmaking body, foul, avaricious ideas are struck into Law. Combine this with Man’s willingness to accept the most depraved torture when delivered with the stamp of authority, and one sees the dark cycle turning.
March 26, 2010, 11:55 pm