rm: 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.

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;
it ONLY has the power to tax people– it may not take property from them otherwise.

Thales: 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.

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.

scott: 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.

How do you account for Raich?

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.

David V.: 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.

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).

A. Zarkov: I don’t understand your remark about amendments

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.

2klbofun: If so, could anyone claim a conscientious objection to purchasing medical insurance?

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.

John Humbach: Several places. For example: Section 5000A (e)(2).

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.

jrose: Do you think amendments are constitutional only if there is other way to solve a problem?

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.

A. Zarkov: Ok please point me to the appropriate text.

Several places. For example: Section 5000A (e)(2).

If so, could anyone claim a conscientious objection to purchasing medical insurance?

A. Zarkov: Note the key word “activity.”

A regulation of an activity can prohibit, require or provide the rules for engaging in the activity.

A. Zarkov: Please link me to appropriate text

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”

A. Zarkov: That seems like a creative reading of the word “necessary.”

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?

jrose: 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.

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.

jrose: As I have said previously, McCulloch established that “necessary” in the Necessary and Proper clause means “useful”, it need not be the “only approach”.

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.

John Humbach: As I read the statute, a person with no income would not be taxed.

Ok please point me to the appropriate text.

A. Zarkov: 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?

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.”

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.

A. Zarkov: 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?

As I read the statute, a person with no income would not be taxed.

Matt: 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.

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?

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.

David V.: 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.

You are confusing the X-Ray laser with kinetic kill. The latter is not technically infeasible against small attacks.

Thales: 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.

Could you toss me a link where I can read up on this ‘state of mind’ thing and non-payment penalties?

David V.: Unprotected sex of any kind and sharing of infected blood.

Sodomy provides the primary vector for the AIDS retrovirus. If people did not engage in sodomy the incidence of AIDS would be much lower.

David V.: No significantly sized group believes this because it is patently incorrect and it does go back to the level our discourse.

Belief and correctness are only loosely coupled. It’s certainly possible for many people to believe incorrect ideas.

David V.: 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.

Speculative. Does not deal with anything in evidence.

Matt: 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.

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.