Like Orin, were I forced to make a prediction, I would predict that the individual mandate will survive judicial review. Federal courts have been quite reluctant to strike down federal statutes on enumerated powers grounds for quite some time, and the individual mandate is a larger and more consequential piece of legislation than those invalidated by the Rehnquist Court. But while I think judicial rejection of the mandate is unlikely, I hardly think the chances are as remote as Orin suggests.
Recall the history of United States v. Lopez. Academics and legal commentators were shocked when a panel of the U.S. Court of Appeals for the Fifth Circuit struck down the Gun-Free School Zones Act in 1993. Reversal in the U.S. Supreme Court was a foregone conclusion. No serious academic believed the decision would stand. And yet, the Supreme Court confounded expectations and affirmed the Fifth Circuit, in part because the government was incapable of offering a theory upon which the statute could be upheld without obliterating what little was left of the limits on Congress’ commerce clause power.
Lopez did not change much in the lower courts. Over he next five years there were many commerce clause challenges to federal statutes and yet only one appellate court, in one case, struck down a federal law for exceeding the scope of the commerce clause. Federal appellate courts were completely uninterested in enforcing any limits on the Commerce Clause, largely because few took the Court’s Lopez decision all that seriously. The one exception was the U.S. Court of Appeals for the Fourth Circuit, which struck down a provision of the Violence Againse Women Act. That case went up to the Supreme Court and, in United States v. Morrison, the Court again confounded expectations and affirmed the lower court. In both cases, the prevailing academic wisdom was that the commerce clause arguments had no chance, and yet in both cases the challenges prevailed.
The individual mandate is certainly a far more consequential provision than was at issue in either Lopez and Morrison. This would seem to reinforce the argument that the Court is likely to reject any legal challenges. it is much easier for a court to invalidate a small piece of symbolic legislation than a major social reform. And yet, the Court has, at times, been willing to cut wide swaths through the federal code or confront the political branches. Dozens of statutory provisions were invalidated by INS v. Chadha, and the Court’s aggressive review of the poltiical branches’ wartime policy decisions in Boumediene were unprecedented, so it’s not as if the Court has not flexed its muscles in the recent past.
It is also worth speculating on the politics of the individual mandate by the time any legal challenges reach the Court. If, as many believe, the Court is somewhat responsive to political pressures and popular sentiment, this could influence how the Court evaluates arguments that Congress has gone too far. If recent polls are to be believed, a substantial majority of Americans oppose the health care reforms passed by Congress, and those who strongly oppose the reforms outnumber those who strongly support them by about two-to-one. Striking down a popular health care provision would be a risky course for the Court. But what if unhappiness with health care reform were to fester and grow? What if the only thing preventing repeal were to be the same supermajority requirements that almost killed health care reform in the first place? Were this the case, the Court would not be picking a fight with the political branches so much as it would be reaffirming the popular will. In such a case, a Court decision against ObamaCare would not provoke howls of protest so much as sighs of relief.
In closing, let me also stress that the arguments against the individual mandate are anything but frivolous. For reasons I explained here, it would be difficult to strike down the mandate without limiting (if not overturning) the rationale of Gonzales v. Raich, but it would also be difficult to uphold the mandate without eviscerating what little is left of Lopez and Morrison. And while it’s a relatively safe bet to predict the Court will reaffirm federal power if pressed, the Court has confounded such expectations before — and there’s a non-trivial chance it could do so again.
rm says:
The individual mandate simply corrects a free rider problem. People who “opt out” don’t do so for life — they (like all humans) eventually need health care, and join in once it becomes necessary (or they turn 35 years old), or they simply use health care without paying (exploiting the fact that health care is essentially a right because hospitals, at the end of the day, will never turn away patients). Thus, they’re gaming a risk-sharing system that benefits them, at the expense of others. (In fact, most of them had coverage in their youth (and were born in hospitals), and so benefitted from the system even before they opted out.)
What indivudal mandate opponents are really protesting is the fact that health care in the US is a nationwide risk-sharing scheme that necessarily includes all people from birth. But that’s a fact of life (and a good and efficient one at that).
Thus, in terms of “pure” Commerce Clause analysis, health care shouldn’t be framed as commodity like cars but as a sui generis good that unlike other products is something that all people necessarily will buy during the course of life, and therefore all American are in the health insurance stream of commerce from birth.
March 23, 2010, 9:29 amuh_clem says:
One would certainly get that impression were one to only read the headlines. For instance, the latest CNN poll: Americans don’t like health care bill According to the poll 59% of Americans oppose the bill and 39% support it.
But if you read the article carefully, you’ll see that 13% of respondents oppose the bill because it is isn’t liberal enough. If you add these opponents to the supporters, you you get a majority who either support the bill or think we should do more.
I don’t think HCR is as unpopular as you think it is.
March 23, 2010, 9:36 amAnd any way you slice it, the HCR is far more popular than the option of “do nothing” which garners 6% support.
Denver says:
Medicare and social security are individual mandates. There has been no successful judicial challenge to them on commerce clause grounds. So why do you believe that a challenge to this individual mandate isn’t equally doomed? Further, Lopez and Morrison would not be implicated. This is because the statutes at issue there did not involve economic activity. Mandating health insurance purchases to make abolition of pre-existing condition restrictions and community rating economically viable is clearly involved in the regulation of commercial activity.
March 23, 2010, 9:55 amSara says:
Yet, no one in Sunday’s debate on the bill made them and I think only on representative even mentioned them.
March 23, 2010, 9:57 amGuest 101 says:
I have not been following the arguments regarding the constitutionality of the individual mandate very closely (instead focusing on the political spectacle of whether this monstrosity would pass or not), but have the conspirators elaborated 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. In Kelo, the public use/public benefit from the project was essential to the decision. Here, the public use/benefit is to provide insurance to those who want it but can’t afford it, not to force individuals to purchase insurance policies they don’t want.
March 23, 2010, 10:03 amSuperSkeptic says:
I’m no conspirator (at least for Volokh purposes), but I can see getting everyone in the country health insurance as being far more of a public purpose/benefit than local economic development and therefore easily construed to fall under the broad/current interpretation of “public use”.
March 23, 2010, 10:17 amJohn Humbach says:
Why does everybody insist on calling this a federal “mandate” and analyzing it as such? The law is clearly structured and imposed as a tax.
Going back to the Harrison Narcotics Act of 1914 and probably before, the Federal government has a long history of using taxes to regulate behavior that would otherwise be outside its constitutioanl reach.
The Internal Revenue Code has many such provisions.
March 23, 2010, 10:29 amGuest 101 says:
I acknowledge the public use/purpose of 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?
As an analogy, most people in America probably use and need a car. However, I live in the city and do not have, need or want one (I have the money, but parking would be a pain and I don’t like driving in the city, anyway). Perhaps it is a public use to provide others with a car, but how is making me buy a car a public use?
March 23, 2010, 10:31 amSara says:
Actuarial mathematics.
March 23, 2010, 10:43 amSuperSkeptic says:
Guest 101,
Look I’m with you here about all this, but you can’t look at it so narrowly (as in the car applied to your situation is no “public use”) but rather broaden it out (as in your car purchase helps out the whole scheme, which in turns helps everybody in the body politic).
Think of it as Kelo to the Raich-th power.
March 23, 2010, 11:05 amIndividual mandate challenged | The Spot says:
[...] is the analysis by Orin Kerr, as posted on The Volokh Conspiracy. And another analysis by Jonathan H. Adler, also posted on the Volokh [...]
March 23, 2010, 11:17 ampmorem says:
Is there any fundamental obstacle to changes to the definition of “qualifying plan”?
We’ve seen in Massachussetts that the definition rises over time.
Regular medical exams have benefits. Could plans be required to offer significant benefits (or penalties for non-compliance) with regular medical exams? Sure, sure.
Now how about general wellness programs with the same incentives? Sure, sure.
How about regular psychological or psychiatric evaluations? Can you bet the American Psychological Association would lobby for that one? And why not? Why should mental health be ignored?
It seems to me that changes to the definition of “qualifying plan” would be far harder to overturn than the requirement for having a “qualifying plan”.
March 23, 2010, 11:23 amGuest 101 says:
I think the connection between the confiscated property and the use/benefit needs to be more direct/proximate – in Kelo, the property taken was to be the site of the new development, correct?
Under your formulation, there is really 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, 11:29 amSuperSkeptic says:
right…
March 23, 2010, 11:57 amjrose says:
but it would also be difficult to uphold the mandate without eviscerating what little is left of Lopez and Morrison
What is left of Lopez and Morrison will remain if the insurance mandate is confirmed as constitutional: laws that are not part of a larger, regulatory scheme of commerce that would otherwise be undercut, will continue to be found unconstitutional.
March 23, 2010, 12:56 pmA. Zarkov says:
In my opinion the Mandate has two critical weaknesses.
1. The Commerce Clause cannot apply to inactivity. If it did, then why have the clause in the first place? How can we have a federal government with limited and enumerated powers, if Congress can essentially do whatever it wants? If Congress has the power to force people to buy insurance, then why can’t it forbid abortions? Where is the abortion exception in the CC? If CC is so all powerful then why can’t Congress make sodomy illegal? Sodomy facilitates the the spread of AIDS, which has budgetary consequences and economic consequences for the country. Where is the sodomy exception in the CC?
2. The Mandate is not necessary for Congress to cover the uninsured or regulate the insurance industry. It can simply raise taxes. Just increase FICA and put everyone in Medicare. Done. How is the Mandate the only approach?
Remarks on “inactivity.”
Some argue that everyone eventually uses medical services, so there is no such thing as “inactivity” in this context. Well how about Christian Scientists? How about American citizens who live abroad and are covered by the system in another country? Or for that matter, how about people who live in San Diego and want to go to Mexico on a regular basis for their medicine? This is not so far fetched. Many people in San Diego as well as border towns in Texas are from Mexico and might want to continue using the doctor they have always used in Mexico.
It seems to me that the professors are overly optimistic that Obamacare will survive judicial review. This legislation has fevered and lathered the country like nothing I’ve ever seem with the possible exception of the Vietnam War. I have never experienced such anger. Even if only 40%-50% oppose Obamacare that’s a lot. The Republic has survived without it so far, and I don’t see how one can argue that we absolutely must have it for the republic to survive. A lot people see Obamacare as the precursor to out and out European socialism– or worse. They might be wrong, or crazy, but one cannot deny the passion. This kind of passion can lead to serious social unrest. Is Obamacare worth it when there are alternatives? I would also like to point out that 83% of Americans are satisfied with their current insurance situation.
March 23, 2010, 1:13 pmPunditKix says:
The Volokh Conspiracy » What Will Courts Do with the Individual Mandate?…
Trackback from PunditKix…
March 23, 2010, 1:17 pmDavid V. says:
Two things here- could someone please address the claim that this is not a mandate but a tax? From my read it is a tax.
Second, a point is made that even thought the public opinion polls take over two days by CNN and NBC show that Americans are unhappy with the bill, other polls(Pew) also show and have shown that the unhappiness is usually financial and usually based on incorrect information. What weight is given by a judge to public opinion when the opinion is obviously wrong?
“If, as many believe, the Court is somewhat responsive to political pressures and popular sentiment, this could influence how the Court evaluates arguments that Congress has gone too far.”
Addendum: Calling it Obamacare really sullies the water of any opinion presented. It shows obvious inability to be objective.
March 23, 2010, 1:21 pmA. Zarkov says:
So does the label “progressive.” A lot of people who call themselves that are anything but. How about “Star Wars” for SDI. We all know that label was designed to demean the project. The left knows how effective determining the vocabulary of an issue is, and they don’t like it when the other side does it.
“Obamacare” is simply a term of art for legislation that allows the federal government to capture if not control much of the medical industry. We all know what it means and so do you.
March 23, 2010, 1:42 pmArkady says:
Really? See Agriculture, subsidies for not planting; regulation of…
March 23, 2010, 1:42 pmMatt says:
Jonathan,
I think you ought to respond to John Humbach’s comment at 10:29. I think he has this exactly right.
The constitutional argument is indeed frivolous, because the mandate is not a mandate and the Commerce Clause is not the relevant source of power for this part of the bill.
The “individual mandate” is simply a nom de guerre the provision has been given. In reality, it’s simply a tax, and one doesn’t face any civil or criminal penalties if one doesn’t buy insurance, one simply pays an additional income tax. The source of authority for the provision is the combined effect of the General Welfare Clause and the Sixteenth Amendment.
Your discussion — and that of most mandate opponents — relies implicitly on the notion that the mandate is backed by some sort of civil or criminal penalty. Were that so, I think that a Morrison/Lopez challenge would have considerable merit. But it doesn’t, and I don’t think you can meaningfully evaluate the prospects of litigation on the mandate without confronting that.
Before I am prepared to agree that there is a non-frivolous challenge to this provision, I need to be convinced that it is even necessary to reach the Commerce Clause issues. As of now, I am not.
March 23, 2010, 1:43 pmDavid V. says:
Unprotected sex of any kind and sharing of infected blood.
Would this be an indictment of the discourse in the nation? Because that I will agree with. The sheer amount of lying that was done to propagate the fear and anger over this bill was the worst I have ever seen- worse than the Vietnam war because, as we found out from Mr. Macnamara, most of what was said by the opposition was true. And, interestingly, we can thank conscription for the public awareness about that war. The war in Iraq has now gone on longer and cost significantly more but there is no draft and we are still there.
No significantly sized group believes this because it is patently incorrect and it does go back to the level our discourse. It’s abysmal. We talk in platitudes like “socialism” and “Obamacare”. Of course one cannot deny the passion. It would be nice if that passion were directed in a more functional manner- like looking our health care expenditures currently and their projections over the next few years and recognizing that the Republic could not survive with the massive price increases.
That’s great. I’ll bet 82.9% of them are going to be just as happy with the plan they have under this bill. I’ll also bet the % of people you don’t mention- the ones with no insurance who are costing those with it to pay for them are going to be happy now. And then further the 90% of those insured are going to be happy that they are actually paying less than they were before because the tax imposed on those who don’t have insurance and the money from the insured are going in to a larger pool to pay for that uninsured % shortfall.
I’ll also say this again- this was not the correct way to handle the reform of the system. The bill is a big mess that insurance companies and pharma are going to exploit more so than whatever individual fraud the conspiracies can dream up. There will be problems. But this is a step towards the already Socially Democratic government fixing a big sink hole in our economy. It jibes with other programs the government already provides(and collects for!) for the public welfare.
The correct way to do this was Single Payer and who knows, that still may happen. It’s fiscally sound, it covers all it should cover and is completely Constitutional under ‘welfare’. Other Democratic Republics have realized this presents no conflict.
March 23, 2010, 1:50 pmThales says:
The mandate is structured as a tax. It’s either an excise tax on an (in)activity deemed to be harmful (free riding) or a kind of income tax from which certain people (those purchasing insurance) are exempt. If you don’t a) buy or receive insurance, you b) pay the tax [which currently looks to be quite low], or c) pay the IRS a penalty for nonpayment.
Jack Balkin has gone over this in detail, and in my view persuasively–I would like to see a serious rebuttal as to why under a) the text of the Constitution and b) current commerce clause or other jurisprudence interpreting the text (including Lopez and Morrison) this tax is unconstitutional. And if so, why any excise or income tax would not be unconstitutional. Health insurance is a form of economic activity with significant interstate (indeed, global) effects–why would a challenge under Lopez and progeny be taken seriously by a court unless there were a conscious effort to go even further than Lopez [and ignoring Raich] in restricting the interpretation of the commerce clause present since 1937? And why wouldn’t the tax itself be permissible under the 16th amendment?
March 23, 2010, 1:50 pmA. Zarkov says:
No. There is an activity involved: farming. A subsidy for not planting is pursuant to having planted in the first place and being part of a business activity. Can I as an individual go apply for a subsidy for the crops I didn’t plant? Obviously not. Nice try, but no cigar.
I might add that the Agricultural Adjustment Act of 1938 exempted small farms. Evidently Roscoe Filburn’s farm was not small enough to escape a wheat allocation. The federal government has never forced individuals to buy something. Not even war bonds during a war.
March 23, 2010, 1:52 pmDavid V. says:
What demeans the project its its inability to function (not one test yet that has worked) and the enormous amount of money thrown at it. But let’s stay on target here.
I think you’ve made my point for me.
March 23, 2010, 1:54 pmDavid V. says:
This brings up a question- non payment of tax- that is a criminal offense?
Excuse me if that is a dumb question. My tax enforcement knowledge is sub par.
March 23, 2010, 1:58 pmThales says:
David V: That depends on your state of mind at the time of nonpayment. But in any event, in addition to any civil penalty or criminal liability, a nonpayer would be liable for the tax itself.
March 23, 2010, 2:02 pmA. Zarkov says:
Sodomy provides the primary vector for the AIDS retrovirus. If people did not engage in sodomy the incidence of AIDS would be much lower.
Belief and correctness are only loosely coupled. It’s certainly possible for many people to believe incorrect ideas.
Speculative. Does not deal with anything in evidence.
March 23, 2010, 2:02 pmDavid V. says:
Could you toss me a link where I can read up on this ‘state of mind’ thing and non-payment penalties?
March 23, 2010, 2:05 pmA. Zarkov says:
You are confusing the X-Ray laser with kinetic kill. The latter is not technically infeasible against small attacks.
March 23, 2010, 2:06 pmThales says:
David V: Just a general principle of criminal law–to satisfy due process in a criminal prosecution, you need to have a mens rea/guilty mind in addition to a bad act by the defendant in order to impose criminal penalties in most cases (some regulatory offenses are exempt from the mens rea requirement and are “strict liability” offenses, e.g. pollution in violation of some environmental statutes, materially false statements in a securities registration statement, but these usually only provide for fines rather than imprisonment and are almost exclusively inflicted on businesses rather than individuals).
The tricky part with statutes is that generally ignorance of the law is no excuse–that is, if you willfully, knowingly or recklessly engage in the act that is proscribed by the statute, regardless of whether you personally know the conduct is illegal, that’s enough to establish mens rea (this concept is often called “general intent”). However, the Supreme Court has recognized certain exceptions and required “specific intent” to violate a statute to be present before criminal liability can attach–including in the realm of some complex tax statutes. See, for example,
http://en.wikipedia.org/wiki/Cheek_v._United_States
All this is very generalistic–I don’t know how a court would interpret the current reform statutes, including any penalties imposed by them.
March 23, 2010, 2:15 pmA. Zarkov says:
Suppose someone has no income (such as a kept woman). Such as person doesn’t even have to file a return, let alone pay any income tax or FICA. It seems to me that such a person is beyond the reach of Congress under the 16th Amendment. Are you telling me that the kept women of America must now file income tax returns even though they have no income, and pay a tax if they don’t have health insurance?
March 23, 2010, 2:34 pmJohn Humbach says:
As I read the statute, a person with no income would not be taxed.
March 23, 2010, 3:25 pmSteve M. says:
My thinking here is that the ‘wording’ of the law would be of paramount importance in figuring out whether or not a commerce clause issue could be legitimately invoked by opponents of HCR (not that such challenge would necessarily go in favor of opponents of HCR even if it was legitimately heard).
If, for example, the new law simply increases income tax on all Americans (which the Federal government surely has a 16th Amendment right to do), with the added ‘benefit’ of a tax break for those who purchase minimum acceptable coverage, I would think that this would be perfectly constitutional.
If, however, the law ‘truly’ mandates that Americans purchase minimum acceptable coverage under pain of ‘tax penalty’ for non-compliance, I’m not sure that that would survive judicial review, as it would establish non-activity as a class of economic activity, which (to the best of my knowledge) has never been done before, even in the most extreme interpretation of commerce clause power in favor of Congress.
If anyone has expert knowledge on this issue, please feel free to comment or correct me in my interpretation. I admit that my knowledge of constitutional law is very limited.
March 23, 2010, 4:43 pmjrose says:
As I have said previously, McCulloch established that “necessary” in the Necessary and Proper clause means “useful”, it need not be the “only approach”.
Scalia from Raich: “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power.”
March 23, 2010, 4:45 pmdeepthought says:
Does the fact that the individual mandate doesn’t come into effect until 2014 have any bearing on the current lawsuits? Don’t the plantiffs have to show particularized harm?
March 23, 2010, 4:57 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, 5:03 pmA. Zarkov says:
Ok please point me to the appropriate text.
March 23, 2010, 5:13 pmA. Zarkov says:
Please link me to appropriate text. That seems like a creative reading of the word “necessary.” However I don’t even see the mandate as being useful except in a political sense to make it seem like taxes are not going to get raised.
March 23, 2010, 5:15 pmA. Zarkov says:
Note the key word “activity.” Is being inactive, merely existing… an activity? These silly word games are going to make citizens contemptuous of our courts.
March 23, 2010, 5:18 pmjrose says:
McCulloch:
“If reference be had to its use in the common affairs of the world or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end is generally understood as employing any means calculated to [p414] produce the end, and not as being confined to those single means without which the end would be entirely unattainable”
Article V: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution”
Do you think amendments are constitutional only if there is other way to solve a problem?
March 23, 2010, 5:26 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 mandate. Cancel [...]
March 23, 2010, 5:34 pmjrose says:
A regulation of an activity can prohibit, require or provide the rules for engaging in the activity.
March 23, 2010, 5:42 pm2klbofun says:
There was a brief comment above regarding the potential exception of Christian Scientists on a religious conscientious objection. I have heard rumor of an actual exemption written into the law for the Amish, but I have not seen the actual text supporting that.
If so, could anyone claim a conscientious objection to purchasing medical insurance?
March 23, 2010, 6:33 pmJon Healey says:
The law provides an exemption from the mandate for religious reasons and economic hardship. See http://www.opencongress.org/senate_health_care_bill?version=eas&nid=t0:eas:2050
March 23, 2010, 7:37 pmJohn Humbach says:
Several places. For example: Section 5000A (e)(2).
March 23, 2010, 9:31 pmA. Zarkov says:
First thanks very much for the link. I will read it carefully and yes I will change my mind with new evidence.
I don’t understand your remark about amendments.
March 23, 2010, 11:42 pmA. Zarkov says:
Ok, very good– thank you. I have avoided reading the legislation because it seemed to be a moving target. Now that we have something enacted it pays to delve into the details.
March 23, 2010, 11:43 pmA. Zarkov says:
I doubt it. For example the IRS gets to decide what’s a legitimate religion for things like parsonage. One might think that would run afoul of establishment clause, but it doesn’t. For a long time the Church of Scientology did not qualify as tax exempt, then one day everything turned around for them under what I would regard as suspicious circumstances.
There are lots of things like this. I have never understood how requiring men to register for the draft, but not women does not violate equal protection. Particularly since now women are fully integrated into the services including combat. In California a dry cleaner can’t charge more for a woman’s blouse than a man’s shirt. We live in an Orwellian country.
March 23, 2010, 11:52 pmRalph Wiggum says:
The mandate does not apply to POTUS, members of congress and members of their staffs. So, under this law, 26-year-old Bart, who lives with his wealthy parents in Springfield, USA, is covered under their insurance plan and has no job, suddenly becomes in violation of the law on his 27th birthday. (Reverend Lovejoy has already broken the news to Bart that Bart is neither Amish nor a Christian Scientist.) Faced with this dilemma, Bart decides to get off the couch and get a job. He realizes though, that, if he works at the Krustyburger, he will have to buy a government-approved health insurance plan, or else still be in violation of the law. So, instead, he gets a job at Congressman Quimby’s office,managing Quimby’s personal affairs. The mandate no longer applies to him, and he has immediate access to a health care plan that I don’t have access to, because my father isn’t a member of congress; he’s only the chief of police. Is this constitutional?
March 24, 2010, 4:37 amjrose says:
Article V uses the word “necessary”: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution”
If “necessary” means, as you suggest, the “only approach”, then Congress would only be able to propose an amendment when an amendment is the only approach to solving the issue at hand. That can’t be right. Congress can propose amendments when it feels they are useful to solving the issue at hand, even though there are other possible avenues.
March 24, 2010, 7:04 amSCOTUSblog » Wednesday round-up says:
[...] mean those arguments won’t be successful in the Supreme Court.” Jonathan Adler at the Volokh Conspiracy thinks the chance of such a result is unlikely but “non-trivial.” Sandy Levinson at [...]
March 24, 2010, 8:58 amstolicki says:
sec. 5000A (b)(1):
If an applicable individual fails to meet the requirement of subsection (a) [Requirement To Maintain Minimum Essential Coverage] for 1 or more months during any calendar year beginning after 2013, then, except as provided in subsection (d), there is hereby imposed a penalty with respect to the individual in the amount determined under subsection (c).
Even if one considers this section to impose a tax, Congressional declaration that it is a ‘penalty’ notwithstanding, it raises serious concerns under art. I sec. 9 cl. 4 of the Constitution (“No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.”) Now, this “tax” is definitely a direct tax, so unless it’s an income tax within the meaning of the Sixteenth Amendment, it must be apportioned among the States according to the census (and the “tax” imposed by 5000A (b)(1) clearly isn’t so apportioned). An unapportioned direct tax on anything which is not income would be unconstitutional. C.I.R. v. Obear-Nester Glass Co., 217 F.2d 56 (7th Cir., 1954), certiorari denied 348 U.S. 982.
So the question goes down to a single issue: is the “tax” imposed by 5000A (e)(2) a tax on income, or a capitation tax (tax on persons). If it is a capitation tax, it is clearly unconstitutional. It can be argued that because 5000A (e)(2) exempts individuals with low income (or no income) from the “tax,” it is a tax on income; however, the “penalty” is imposed “with respect to the individual,” not to his income. That would indicate that the tax is, by the statute’s own terms, a tax on persons, and ‘taxes upon the polls, heads, or persons, of the contributors’ are capitation taxes within the meaning of the Constitution, at least according to Justice Story (Story’s Commentaries sec. 951).
March 24, 2010, 2:23 pmscott says:
Mr. Adler:
You are clueless as to the reasoning and Commerce Clause significance behind United States v. Lopez.
Far from being the outlier opinion you suggest it to be, Lopez along with United States v. Morrison represents the beginning of a curb in Commerce Clause power after decades of expansion.
With such a tenuous grasp on recent Commerce Clause restrictions, it is difficult to take any subsequent analysis seriously.
March 25, 2010, 3:11 amjrose says:
How do you account for Raich?
March 25, 2010, 8:21 amJoe says:
When the case is analyzed under the tax and spend clause, it will not be deemed an “income tax.” The reason is that it is not a tax on income, but rather a tax on those who do not purchase a qualified insurance plan. This makes it a “direct” or “conscription” tax. Under the constitution, conscription taxes must be apportioned by population, meaning that California and Texas would have to pay a larger percentage some state like Wyoming the least. However, because the tax is not apportioned this way, it is an unconstitutional conscription tax.
If the government wanted to do this through income taxes, they would have to raise income taxes by say 10%, and then offer a tax credit for purchasing insurance up to the value of the plan. This is what they do with tuition, real estate, and many other things.
One important fact is that the government structured the tax this way to purposefully avoid raising income taxes. Their is precedent on this, and it is not in favor of the government. In fact, legislation has been overturned in the past merely because the government sought to do with “tax” what they would not have been able to do otherwise, making the tax a form of pretext. See US v. Butler. This case has been narrowed, but not overruled. While it has been a long time since SCOTUS has overturned a tax law on the basis of enumerated powers, it has been done and could also happen to the mandate.
Most scholar agree this would not even be a question but for Justice Kennedy. No one knows (and many have tried hard) how to understand/predict his thinking. The other 8 justices will either opt for activist expansion or strict interpretation. Under a strict interpretation of the constitution and SCOTUS precedent, the individual mandate is unquestionably unconstitutional.
March 25, 2010, 3:47 pmAre The Attorneys General’s Constitutional Claims Bogus? « Legal Issues in Health Reform says:
[...] about exceeding powers to regulate commerce and to tax for the general welfare. On these, most legal scholars are loud and clear about the merits. In summary, as Sandy Levinson’s (Univ. Texas) says: [...]
March 26, 2010, 2:38 pmAre The Attorneys General’s Constitutional Claims Bogus? : HEALTH REFORM WATCH says:
[...] about exceeding powers to regulate commerce and to tax for the general welfare. On these, most legal scholars are loud and clear about the merits. In sum, as Sandy Levinson’s (Univ. Texas) says, [...]
March 26, 2010, 6:28 pmBrian McCandliss says:
Then it’s essential to pass a TAX in order to pay for it– that is the ONLY power that the federal government has, for taking property from people.
Other than this, the fed is PROHIBITED from doing so, by the 5th Amendment: i.e. “property shall not be taken for public use without just compensation.” That means that it CANNOT take money from them, except by taxes.
Thus, the federal government cannot force people to buy anything;
March 29, 2010, 10:41 pmit ONLY has the power to tax people– it may not take property from them otherwise.
electronic display says:
it’s not as if the Court has not flexed its muscles in the recent past
June 14, 2010, 2:03 am