Among the lawsuits filed against Obamacare is a class action in the Southern District of Mississippi. Class representatives, for residents of Mississippi who do not wish to be subject to the health insurance purchase mandate, include State Senator Chris McDaniel and Lt. Governor Phil Bryant. The complaint is available here, inside a post on Andrew Breitbart’s website.
The 29-page complaint contains many legal arguments and case citations. As VC readers know, such extensive legal argument is not mandatory in a complaint, but is permissible. Much of the complaint consists of development of the argument that the power to regulate interstate commerce does not include the power to force people to purchase a product. A few items, however, are particularly notable.
18. Plaintiffs do not desire and have no intention to obey what they consider to be an unconstitutional individual mandate . . .
Para. 35: The Constitution gives Congress the power to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes. The tripartite enumeratation shows that the “substantially affects” test for regulation of interstate commerce does not imply an infinite power. Since everything affects everything else, at least in some degree, a regulation of Indian or foreign commerce might be justified on the ground that it “affects” interstate commerce. However, the text separates interstate, foreign, and Indian commerce. ”Had the Founders intended the commerce power to be unlimited, enumerating three categories of commerce for Congress to regulate would have been wholly unnecessary.” (And as Justice Thomas pointed out in Lopez, the theory of an unbounded interstate commerce power is also contradicted by Article I’s enumeration of a separate bankruptcy power.)
70. . . .the compelled purchase of health insurance also constitutes the ”taking” of private property under the Fifth Amendment to the United States Constitution. Requiring Plaintiffs to devote a penalty or a percent of their personal income for a purpose which they otherwise would not voluntarily choose based on individual circumstances is an arbitrary and capricious “taking” of property.
74. For the purposes of a substantive due process analysis there is no meaningful distinction between a person who asserts the right to contract or associate with another private entity and a person who asserts the right not to enter a contract or to associate with another private entity. Refusal to enter into a contract in the face of an illegitimate demand for a contract is subject to protection under the Fifth and Fourteenth Amendments to the United States Constitution. Just as a person has a First Amendment Constitutional right, in certain circumstances, to be free from exercising freedom of speech, Plaintiffs in this matter have the Constitutional right to be free from entering a private contract or an involuntary association.
In my view, the most interesting paragraph is this one:
75. Moreover, compelling Plaintiffs to enter into a private contract to purchase insurance from another entity will legally require them to share private and personal information with the contracting party. Specifically, by requiring Plaintiffs to abide by the Act’s individual mandate, Congress is also compelling Plaintiffs to fully disclose past medical conditions, habits and behaviors. Not only will the insurer be privy to all past medical information, Congress’s individual mandate will, by necessity, allow the compelled insurer access to Plaintiffs’ present and future medical information of a confidential nature. If judicially enforceable privacy rights mean anything, then private and confidential medical details certainly merit Constitutional protection. Plaintiffs should not be forced to disclose the most intimate details of their past, present and future medical information.
Indeed, the insurance purchase mandate is considerably more intrusive than other purchase mandates which would become constitutional if the insurance mandate is upheld. For example, if Congress required that every family purchase a General Motors ACDelco automobile battery at least once every 5 years, the mandate would be financially burdensome, but would not necessarily require the disclosure of any private information. In contrast, the insurance mandate is a mandate for the involuntary disclosure of many of the most intimate details about one’s life–and making that disclosure to a corporation that in effect functions as a highly-regulated public utility, and which will turn the information over to the government under certain conditions.
In your comments, please focus the discussion on the Mississippi class action case.
Laura(southernxyl) says:
That disclosal-of-information argument is one I hadn’t seen before. And it’s true. I believe that under HIPAA, you have to give permission for your medical records to be communicated to anyone. So either they’re going to have to put HIPAA aside, or require that people voluntarily give permission for disclosure (yes I’m being facetious), or require that insurance companies not ask for health records. And if they don’t ask for people who don’t want to disclose, that basically means stop asking altogether. Wowza.
April 13, 2010, 6:39 pmChris Travers says:
I am all for declaring the mandate to be Unconstitutional but this seems like it could backfire:
Constitutionally, how would this differ (as a takings case only) from auto insurance mandates?
This is an interesting argument, especially since recission law has not changed with health care reform. Hence refusing to disclose such information would also open one up to not having coverage when you need it AND, since the purchase of the insurance was fraudulent in the first place, possibly owing the tax penalty IN ADDITION in terms of back taxes (since one would not actually have qualifying coverage)…..
April 13, 2010, 6:44 pmLaura(southernxyl) says:
Does it matter that auto insurance mandates are done by state governments, not federal?
April 13, 2010, 6:47 pmMatthewM says:
David Kopel is blogging up a storm lately. I’m still not certain about the constitutionality or unconstitutionality of the healthcare legislation (it’s going to take a lot of thought), but Mr. Kopel is really bringing attention to a lot of issues and questions that everyone should be discussing. This is what I come to volokh.com for.
April 13, 2010, 6:48 pmarmyboy says:
I’m going to guess that the auto insucance falls under police power of a state.
[DK: This Miss. complaint addresses this. In brief, states have police power, and Congress doesn't. Besides that, mandatory auto insurance is usually for a harm you might do to someone else, not for the auto owners. Moreover, if you choose not to drive on public roads, you don't have to buy auto insurance. In contrast, the Obamacare mandate is imposed on everyone simply for being alive.]
April 13, 2010, 7:00 pmcityduck says:
What an interesting choice of phrasing. “Not mandatory”? Far more accurate would have been to state that: “Such extensive legal argument is highly unsual, potentially subject to a motion to strike, and a hallmark of a frivolous filing.”
This Complaint reminds me of a civil rights complaint filed by a pro per prisoner.
April 13, 2010, 7:01 pmDavid V. says:
75. Moreover, compelling Plaintiffs to enter into a private contract to purchase insurance from another entity will legally require them to share private and personal information with the contracting party. Specifically, by requiring Plaintiffs to abide by the Act’s individual mandate, Congress is also compelling Plaintiffs to fully disclose past medical conditions, habits and behaviors.
[DK: Neither Medicaid nor Medicare are mandatory. If you don't want to use them, you don't have to. Likewise, under pre-Obamacare law, if you wanted to keep your medical records private from an insurance company, you could choose not to buy insurance.]
Don’t people do this already if signing up for Medicade, Medicare? How about getting insurance now- don’t these companies have access to all of your records- especially non-PPO plans? Isn’t this where denial due to preexisting conditions partially comes from?
The government isn’t going to see your records, the same people who see them already are going to see them- if you choose to enroll instead of pay the tax. i.e. If you were going to get heath insurance before, is no different than if you are going to do it now.
April 13, 2010, 7:05 pmcityduck says:
Eugene accurately stated the other day:
April 13, 2010, 7:14 pmmetro11 says:
In response to David V:
I think the difference between Obamacare and Medicare/Medicaid is that you are never compelled under Medicare/Medicaid to: (1) buy into an actual medical insurance plan, and (2) you are never compelled to give your personal medical information to anyone due to the existence of Medicare/Medicaid.
As I understand it, Medicare/Medicaid payroll taxes are deducted for all American employees – but that does not mean medical information needs to be disclosed – or that any claim under Medicare/Medicaid need ever be filed by the employee.
But under Obamacare, if you are compelled to purchase health insurance, it would seem inevitable that you would be compelled to disclose some personal medical information to an insurer.
Also, auto insurance is a poor analogy because the States have a general police power, but the federal government does not. The federal government must, therefore, base Obamacare on The Commerce Clause of the U.S. Constitution. And The Commerce Clause does not give the federal government any authority to compel the purchase of a good or service (like health insurance).
April 13, 2010, 7:22 pmChris Travers says:
Well, given that takings law is the same on both sides, I can’t imagine a strong difference there.
The only thing I can think of is generally something that DK doesn’t mention in his rebuttal, namely that one is not actually required to purchase auto insurance unless you are the owner of a vehicle. In essence auto insurance is something that is attached to a vehicle owner’s responsibilities, not the responsibility of every citizen. Because there is always a choice not to buy a car, I can’t see how it would be outside a state’s ability to say “if you buy a car, you must also buy insurance.”
That’s not the same thing as saying “if you breathe you must buy insurance.” So the taking is far less capricious at that point.
April 13, 2010, 7:26 pmHans Bader says:
David Kopel is right — the individual mandate does raise serious constitutional privacy issues. Mississippi is in the Fifth Circuit. And the Fifth Circuit has a court decision, Robinson v. Reed, that found a constitutional privacy violation based on personal information less intrusive than what people are required to divulge to insurers. (Robinson v. Reed stated when a woman was required by her public employer to divulge information about her home life, in the course of a diversity training class, that stated a claim for a constitutional privacy violation).
This case is stronger than Robinson v. Reed, 566 F.2d 911 (5th Cir. 1978), because Robinson involved the government acting in its proprietary capacity, where civil liberties are subject to greater restrictions (see Waters v. Churchill, 511 U.S. 661, 673 (1994)), whereas the individual mandate involves the government acting in its regulatory capacity, where its actions and restrictions on civil liberties are subject to tighter limits. See Carepartners LLC v. Lashway, 545 F.3d 867, 880 (9th Cir.2008). In Carepartners, the court distinguished the claim of a regulated entity from that of a public employee. “Analysis of a government employee’s speech-based retaliation claim is similar to speech-based retaliation claims by regulated entities … but adds two additional criteria [,]” namely that the speech be related to a matter of public concern and the Pickering balancing test. Carepartners, 545 F.3d at 880. Cf. Garcia v. State Univ. of N.Y. Health Sci. Ctr., 280 F.3d 98, 105 (2d Cir.2001) (refusing to apply to graduate students the public concern test that limits the free speech rights of public employees, because government has more power over its own employees than over the public at large)
Thus, the plaintiffs in Walters v. Holder state a claim. See Walters v. Holder (S.D. Miss. 2010).
April 13, 2010, 7:26 pmmetro11 says:
To Chris Traverse:
Also – auto insurance is a poor analogy because the States have a general police power, but the federal government does not. The federal government must, therefore, base Obamacare on The Commerce Clause of the U.S. Constitution. And The Commerce Clause does not give the federal government any authority to compel the purchase of a good or service (like health insurance).
April 13, 2010, 7:28 pmravenshrike says:
You can own a vehicle without purchasing auto insurance. You just can’t drive that vehicle on public roads in certain states without auto insurance.
April 13, 2010, 7:33 pmChris Travers says:
So is the argument that it violates due process of law because it falls outside a Constitutional power? If Congress wanted to turn my home into a national monument, would that be a violation of due process for the same reason?
Or is that just a formulaic phrase which means “outside enumerated powers and causing me financial injury?”
April 13, 2010, 7:36 pmloki13 says:
metro11-
strike that for being non-responsive. Chris Travers was bringing up the very good point that the 5th Am. argument is, well, a stretch (the takings argument) — the precedent is similar for federal and state government, and, if anything, is more fully-fleshed out for local and state takings.
This has nothing to do with the commerce clause.
April 13, 2010, 7:41 pmmetro11 says:
Chris Travers:
One argument that Obamacare is unconstitutional is that there is no authority for it in the U.S. Constitution. That is, it would have to be based on the Commerce Clause – and the Commerce Clause does not give Congress authority to compel the purchase of goods or services.
Another series of arguments, however, are made in the complaint linked by Prof. Kopel above. These plaintiffs claim (as I understand it) that Obamacare:
1: violates their right to contract (by forcing them to contract when they don’t want to – by forcing them to contract with a health insurer),
2: violates their privacy rights (by forcing them to disclose personal information when they don’t want to), and
3: is an unlawful taking (as it forces them to pay an insurance premium that they don’t want to and/or imposes a penalty if they don’t purchase the insurance)
April 13, 2010, 7:43 pmloki13 says:
70. . . .the compelled purchase of health insurance also constitutes the ”taking” of private property under the Fifth Amendment to the United States Constitution. Requiring Plaintiffs to devote a penalty or a percent of their personal income for a purpose which they otherwise would not voluntarily choose based on individual circumstances is an arbitrary and capricious “taking” of property.
Ironic that this gets posted just two days before April 15th, eh?
April 13, 2010, 7:43 pmarmyboy says:
I didn’t want to look in the complaint. R. Randall Kelso probably shedding tears of joy that I remember.
April 13, 2010, 7:44 pmDavid Schwartz says:
The “mandate” is actually a tax on not buying health insurance. In order to buy a house, I have to disclose all kinds of personal information to the bank. In order to get married, I have to give my spouse all kinds of legal powers over me. Both of these things have significant tax consequences.
Since this is using the taxing power, implements a legitimate regulatory goal, and the amount of the tax reasonably correlates with what’s needed to accomplish the regulatory goal, I don’t see the issue. To file your income taxes electronically, you have to pass information through a third party. Would it be unconstitutional for the IRS to give you a $10 discount, comparable to the savings in not processing a paper tax return, if you filed electronically?
Honestly, this argument is basically frivolous.
April 13, 2010, 7:45 pmJoe Kowalski says:
Okay, so if people don’t want to disclose personal information that would be required as part of the purchasing health insurance, they don’t really have to. The law provides a mechanism for people that don’t want to be covered to instead pay a tax penalty. Don’t want insurance? Fine, don’t get it and pay the IRS 2.5% more per year. Or pay your tax bill minus that 2.5% and guess what, the ACA explicitly has a provision that prevents the IRS from going after anyone who does not pay the extra penalty.
As far as how much information the insurers will require, they probably won’t require much up front since the premiums will be based on community rating and not on individual risk. So name, age, address, etc, is probably all they will need.
April 13, 2010, 7:46 pmChris Travers says:
What, exactly, do you mean by that? If I take steps to evade forcible collection fo that 2.5% penalty, does that make mean I am not guilty of tax evasion?
April 13, 2010, 7:51 pmChris Travers says:
Right. However, my question is that simply as a takings case (setting aside other arguments for a moment), is there any difference? I can see a few possible differences, but none really revolve around the federal/state line.
(Of course, just an observation. For a family of four making 40k per year, I am willing to bet that the penalty will be equivalent to 1 month’s premiums or less, so I would expect that the ban against considering pre-existing conditions will mean that many more people will choose the penalty and then get insurance when something goes wrong and they need to insure against losing assets in bankrupcy….)
April 13, 2010, 7:58 pmmetro11 says:
As I understand it, although this is an area I don’t know much about, the “tax” arguments made by loki, Schwartz and Kowalski run into this problem: such a “tax” under Obamacare would be a “capitation tax” – which is not permitted under the U.S. Constitution. See, e.g., here:
http://www.encyclopedia.com/doc/1G2-3401800671.html
April 13, 2010, 7:59 pmloki13 says:
“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”
April 13, 2010, 8:06 pmmetro11 says:
loki:
but the Obamacare legislation does not propose a tax on income, as I understand it.
April 13, 2010, 8:13 pmChris Travers says:
Do the minimum penalties count as capitation taxes? If so, would the minimum penalty amounts be declared as Unconstitutional (and if I make, say, an adjusted income after credits, etc., of $4000 then I would only have to pay a $100 penalty)?
April 13, 2010, 8:20 pmChris Travers says:
the legislation that was passed has:
1) An income tax penalty at 2.5% of adjusted income
2) but the tax penalty can be no less than certain statutory minimums.
Obviously 1 is not a capitation tax. What about 2?
April 13, 2010, 8:21 pmloki13 says:
Here’s my quickie analysis (you get what you pay for!):
1. Takings clause. Okay… um, I respect the work done by some conservative legal groups in this area in terms of the more outlandish regulatory takings, but… this isn’t going to fly as construed. The argument boils down to – the government taxing and spending on things I don’t like is a 5th Am. taking. No court would open that can o’ worms (think of the people who don’t like the war in Iraq / Afghanistan, Social Security, Medicare . . . .)
2. Due Process / Contracts. Yippee, Lochner! I know DB is pleased, but this has less than a snowball’s chance in hell. Resurrect the most discredited (apologies again to DB) legal theory of the last century to invalidate this? Not gonna happen.
3. Privacy. While I admire the use of “penumbras and emenations” I don’t see conservative jurists wanting to expand this more than it already has been. So- don’t see this as a grounds.
4. That leaves commerce / tax & spend. While I happen to believe that the exisitng jurisprudence supports the constitutionality, I also think that given the right set of justices, this argument could fly. I don’t think it will (it seems a little too sweeping for the Roberts court), but if any argument were to succeed, it would be this one. I disagree that its uncosntitutional, both decriptively and normatively, but I can also see arguments for a good-faith turn away from Raich / Wickard / Hearts of Atlanta and their progeny to a more Lopez/Morrison world.
April 13, 2010, 8:21 pmAnonymous Jim says:
I may have missed it (and if I missed it, I apologize) but I did not see in the complaint a representation that the plaintiffs were currently exercising their right to not buy health insurance. I am not sure there is any legal significance to the representation (one could, for example, object to a city ordinance prohibiting firearms even if she did not have any intent to possess a firearm) but it would seem to me the plaintiffs would be more persuasive if they actually did not have insurance. To put it another way, if the plaintiffs are complaining that the legisilation represents an intrusion by the government because it compels the plaintiffs to share personal information with a third party it would seem odd (though perhaps not legally dispositive) that the plaintiffs were voluntarily submitting to such intrusions.
April 13, 2010, 8:24 pmmetro11 says:
loki:
see item 3 at the link:
* * *
While the $750 tax is partially a function of a taxpayer’s or household’s income, that is only for purposes of providing a reduction in the amount for those who cannot afford the tax. Otherwise, it is a flat $750, which is a textbook example of a head tax or capitation tax.
* * *
http://www.redstate.com/steven_willis/2010/03/24/of-constitutional-de-capitation/
April 13, 2010, 8:26 pm
loki13 says:
CT- caselaw says no. I suppose you could cook up a hypothetical where the income tax was a complete ruse… umm… say a new “Support the War” tax, which is based 5% of your income, with a statutory max of $100 and a statutory minimum of $100, but that would be pretty odd.
April 13, 2010, 8:26 pmDesiderius says:
loki13,
“2. Due Process / Contracts. Yippee, Lochner! I know DB is pleased, but this has less than a snowball’s chance in hell. Resurrect the most discredited (apologies again to DB) legal theory of the last century to invalidate this? Not gonna happen.”
What are the (specific, aside from questions of immediate practicality) obstacles, in your estimation, to convincing liberals/progressives to recredit it?
It is no longer the last century.
April 13, 2010, 8:39 pmloki13 says:
metro11-
I know (knew, I guess) the author of that post- Prof. Willis, good tax prof, decent guy! Let’s just say I respect his teaching, and his knowledge of the tax code, more than his reasoning in this article. You will notice his frequent use of hyperbole and lack of case law.
Again, stranger things have happened. But it’s funny- when you give this to a (very conservative) tax prof, he hopes to see a revolution in capitation jurisprudence. I’m sure DB would love to see Lochner reborn. I bet there are many that are hoping for a new dawn of 10th Am./commerce clause jurisprudence in this. People see what they need to. ;)
April 13, 2010, 8:39 pmDavid V. says:
Ok, all, you realize that by calling it Obamacare, that is an invented name that comes laden with prejudice and weakens your opinion and drives rational people who want to talk about these things away from you? If not, it does.
To address Medicare/Medicade- I am not talking about the compulsory use(however you are compelled to pay for it out of your paycheck so you would have to be absolutely daft or wealthy to not use it). I am speaking strictly to privacy.
If you do not want to use the healthcare under the new laws, you don’t have to either. And you don’t have to disclose your conditions. But even before the bill passed if you did want to participate, you did/do have to disclose your records.
I see no new privacy issue here.
April 13, 2010, 8:40 pmloki13 says:
Desi-
Seriously? Okay-
1. First, the major success of conservative thought/jurisprudence has been in getting courts to do *less*. That’s no small thing. Think of the excesses of the 60s/70s courts, micromanaging everything, making the world “a better place” etc. Bring back Lochner, and you’re opening the floddgates to courts striking down democratically (or rebulicannally- I wasn’t following that debate) elected laws based upon their, um, well, whatever. Lochner isn’t the only guest that would be coming to dinner, and I think that’s one heckuva good reason to keep the door closed. And also why we won’t be seeing it.
2. You have to remember, just about everyone who’s gone to law school for some time has learned “Lochnerism” as a catch phrase for judicial overreach. So that’s a lot of learned behavior to overcome. You have some academic types who make their bread and butter publishing against the trend (because that’s how you get published) and some true believers, but, well, most people (judges, lawyers, etc.) have a feeling toward Lochner- and it isn’t a great one.
3. As for liberals/progressives, I have no idea. You could probably sell them (the more devious ones) on the notion that once Lochner gets back, we can get the judiciary back to inventing rights all over the place again. That might do it.
April 13, 2010, 8:47 pmhilzoy fangirl says:
Yeah, this suit seems likely to have a standing problem.
April 13, 2010, 9:03 pmSara says:
The privacy injury is grossly speculative and not ripe, no one has asked them for anything and no risk pool has yet been created that requires any information, other than the public information of their name and address.
April 13, 2010, 9:10 pmmetro11 says:
hilzoy:
how can there be a standing problem? this law applies to everyone in the U.S. this is a “facial challenge” not an “as applied” challenge, as I understand it.
April 13, 2010, 9:10 pmGuest12345 says:
That’s flatly false. You have no obligation to do any business with a bank in order to buy a house. (As an aside and unrelated to your comment, people do not have to buy liability auto insurance if they are able to post a bond of an appropriate amount.)
Are you suggesting that the tax will be used to buy health care for those who have chosen not to buy their own? If not, then I fail to see how the tax is in furtherance of the regulatory goal.
April 13, 2010, 9:14 pmElliot says:
OK. What should we call it?
April 13, 2010, 9:21 pmDavid V. says:
No Child Left Behind.
April 13, 2010, 9:25 pmDesiderius says:
Loki13,
“Seriously?”
Dead. For once.
“3. As for liberals/progressives, I have no idea. You could probably sell them (the more devious ones) on the notion that once Lochner gets back, we can get the judiciary back to inventing rights all over the place again. That might do it.”
I’m actually interested in the less devious ones. So you think there might be some potential for a regime of limited positive rights in exchange for some protection of limited property rights?
April 13, 2010, 9:30 pmDesiderius says:
Also, thanks for your last two posts. Taught me a lot in a small space.
April 13, 2010, 9:36 pmAnonymous Jim says:
Then why style it as a class action?
April 13, 2010, 9:41 pmSara says:
And they’ll HATE it, if these fervid dreams ever comes to pass.
April 13, 2010, 9:45 pmJoe Kowalski says:
“The ACA” is fairly neutral moniker. Feel free to make up alternative definitions for the acronym, but your credibility as an impartial commentator will improve with by using that moniker.
April 13, 2010, 9:51 pmMichelle Dulak Thomson says:
Guest12345,
Are you suggesting that the tax will be used to buy health care for those who have chosen not to buy their own? If not, then I fail to see how the tax is in furtherance of the regulatory goal.
Nicely done.
You have no obligation to do any business with a bank in order to buy a house.
Also true, though there are very, very few people who can buy houses w/o mortgages.
April 13, 2010, 9:59 pmyankee says:
The standing problems are less than they are with the state lawsuits!
April 13, 2010, 10:01 pmMichelle Dulak Thomson says:
Joe Kowalski,
Have you tried Googling “ACA”? Can’t we find some short name that doesn’t require disaggregating from (say) the American Cichlid Association? (Not that I have anything against cichlids, except that they do have a tendency to eat the other fish.)
April 13, 2010, 10:03 pmjrose says:
The takings, due process and privacy arguments apply to the Masschusetts insurance mandate. Where are the cases challenging this mandate? Where are the precedents that support the arguments?
This strikes me as a desire for the Courts to invent a right – what often is derided as “legislating from the bench”.
April 13, 2010, 10:09 pmJoe Kowalski says:
True, but when you don’t, you don’t have any mortgage interest payments to deduct from your income, and thus pay higher taxes as a result.
April 13, 2010, 10:12 pmMichelle Dulak Thomson says:
I am now 50+ items into Googling “ACA,” and I still haven’t run across anything to do with health care legislation. The Amazon Conservation Association, the Association for the Calligraphic Arts, the Arkansas Cowboys Association, the American Composers’ Alliance (a group I actually do know something about, and support), the American Crystallographic Association…
April 13, 2010, 10:16 pmOwen H. says:
Yet again, more people that think “unconstitutional” means “policy I don’t like”. Sheesh. It’s right up there with those declaring that not having the representative they voted for win means they are “disenfranchised”. It’s already getting old.
April 13, 2010, 10:22 pmMichael says:
Michelle Dulak Thompson,
“Also true, though there are very, very few people who can buy houses w/o mortgages.”
And apparently not that many who can with mortgages these days.
To revisit the State Police Power theme, you don’t have to purchase insurance OR automobile tags if you choose not to drive on public roadways. Part of the tag tax is supposed to go to public roadway upkeep – a usage tax. Don’t know if this adds anything to the splendid material so well stated in preceding posts.
April 13, 2010, 10:23 pmMQuinn says:
The thrust of the Complaint’s Commerce Clause argument is that foregoing the purchase of health insurance is inactivity — as opposed to economic activity — and therefore outside the ambit of the Commerce Clause. See, e.g., Paragraphs 58 & 59. But that argument can not prevail: In Gonzales v. Raich, the Court affirmed that Congress may regulate even non-economic intrastate activity, so long as that regulation is an essential part of the larger regulatory scheme. Refusing to purchase health insurance is not mere inactivity — in fact, it is economic behavior amounting to a decision to self-insure, in which case the uninsured person negatively impacts the risk pool and opts to generally rely on the ER and over-the-counter medications.
Additionally, Paragraph 60 provides that:
I don’t believe that is true. Many environmental statutes require the purchase of various technologies.
April 13, 2010, 10:43 pmJohn Burgess says:
MQuinn: No, environmental statutes only require the purchase of various technologies if one wishes to engage in an industry regulated by those statutes. They don’t require me, for example, to buy CO2 scrubbers for my apartment or car. This is a tax levied on all who breathe (or their guardians).
On the name of Obamacare. That horse has died and been flogged already. Google NYT + Obamacare or Washington Post + Obamacare and see how many results you get. Repeat by substituting ACA. Obamacare it is. Now, trying to use ACA or another officially approved name tags the user as a ‘true believer’ on the other side of the argument.
April 13, 2010, 11:10 pmDavid Schwartz says:
metro11: It is a capitation tax. But it is also layed against and collected on income. There is no hard and fast rule that no taxes that qualify as capitation taxes can also be covered by the 16th amendment.
Guest12345: I can’t buy a house without interacting with a bank, maybe you can. Someone sufficiently wealthy could start his own health insurance company and thus not disclose his health history. They’re both equally realistic.
First, your first sentence asks about something for which there is no distinction. The government gets money from many sources and pays money into many sources. It is meaningless to ask if money from X goes to Y.
Second, even if you assume that’s meaningful and the answer is no, it still furthers the same regulatory goal. A tax on cigarettes, for example, may further the regulatory goal of defraying the costs of medicare, even if no money from the tax goes to fund medicare. Congress has a reasonable belief that the tax will decrease the number of uninsured and/or raise revenue. (It must do one or the other, no?)
April 13, 2010, 11:20 pmDavid V. says:
It depends on what the meaning of the word ‘is’ is.
April 13, 2010, 11:20 pmDavid Sucher says:
People are required to buy clothing and wear it. (Of course they can steal clothing but that doesn’t relieve them of the obligation.)
And it gets worse: people not only must buy clothing they must also wear it.
With Obamacare, while you do have to buy insurance there is no obligation to use it.
So why is everyone so upset about the mandate when they already have it with so many other things?
April 13, 2010, 11:33 pmyao says:
Michelle,
PPACA. Not hard.
April 13, 2010, 11:56 pmKazinski says:
I don’t get it. Is the point trying to distance Obama from the massively unpopular health care bill so it doesn’t take Obama’s Presidency down with it? Or is the point to distance the health care bill from Obama so his increasingly unpopular Presidency doesn’t take the health care bill down with it?
For better or worse Obama’s defined the health care bill as the signature accomplishment of the first half of his term in office.
April 14, 2010, 12:24 amGuest12345 says:
I can’t help the fact that you can’t constrain your consumption desires, but it doesn’t take fantastic wealth to buy somewhere to live with cash. But to be clear, what you are talking about is getting a mortgage. Which you have no obligation to get. You don’t even have an obligation to have somewhere to live.
Medical insurance on the other hand, you are now obligated to have. And the silly idea that one can start an insurance company, try to get real. You think you’ll be able to set up a company that has exactly one customer? I doubt you’ll get the approvals as it defeats the entire purpose of requiring coverage: enlarging the pools to include every able bodied individual.
But are they going to provide me with health care? They aren’t. I won’t get coverage just because I don’t have insurance. They won’t be signing me up for medicare or medicaid. And whether some random act of congress furthers a regulatory goal… that’s just another way of saying congress can order anything. Which plainly they can’t. They can’t order the execution of everyone under the age of eighteen in order to further the goal of reducing child sexual abuse.
April 14, 2010, 12:33 amJohn Herbison says:
I am skeptical about the recent enthusiasm on the right for litigating the constitutionality of legislation as to which the challengers simply disagree as to the wisdom thereof. It strikes me as seeking relief from the one remaining branch of government still under Republican control by those who can’t stand losing elections.
That having been said, the loss of privacy/forced disclosure of personal information attack is the most plausible and intellectually appealing of the various theories that have been floated. The downside, from the challengers’ perspective, is that the constitutional right of privacy has developed in the substantive due process line of cases, and the jurists most willing to carry water for the Republican Party are also the most loath to expand substantive due process rights if it means acknowledging the legitimacy of the line of cases that recognize privacy as a fundamental constitutional right.
April 14, 2010, 12:50 amBrian G. says:
I’m skeptical as to whether you actually know that they are litigating because they “simply disagree” with it as policy, as opposed to the possibility that they genuinely find it in conflict with their understanding of the constitution. It strikes me as seeking to discredit an argument, without having to actually bother with the merits, that would invalidate a bill of which you agree on the wisdom thereof.
See what I did there?
April 14, 2010, 1:13 amKazinski says:
Yeah, that’s the ticket, we’re merely sore losers. Well the point you are missing is that we simply disagree that it is Constitutional. You may also be missing the fact that, on this blog at least, many of the same people were arguing when the subject was Raich v. Gonzales that it was an unconstitutional application of the commerce clause to restrict non-commercial marijuana cultivation and use. Then the defendant was the Bush Administration.
April 14, 2010, 1:16 amNo Health Insurance | Buying Individual Health Insurance says:
[...] The Volokh Conspiracy » Blog Archive » Health insurance mandate as a privacy right viola… [...]
April 14, 2010, 2:29 amRicardo says:
Does anyone know how much private medical information is actually involved here? One of the provisions of the health care reform bill is that insurers will have to stop individual underwriting to price health insurance and will not be able to turn down someone for a pre-existing condition. Given this, how much information will you actually need to disclose to an insurance company to get coverage?
The law seems to imply once the new regulations on insurers come into play that insurance companies have no legitimate interest in knowing your individual medical history. If you don’t want the insurance company to know about your current medical details, you can insist on paying cash when you get treatment rather than going through insurance.
April 14, 2010, 2:45 amjrose says:
True, but because it is strictly a punishment (and of course, one that also violates Due Process). In contrast, the insurance mandate raises revenue. If that is only a pre-text for forcing people to buy insurance, rather than furthering the goal of funding health insurance reform, then it would not be permissible under the Taxing Power.
April 14, 2010, 3:44 amh0mi says:
The insurance requirements in the state of california is actually a requirement to show “financial responsibility” and these are permitted:
so insurance per se isn’t required.
April 14, 2010, 3:50 amjrose says:
This thread is exploring whether the insurance mandate violates the Taking or Due Process Clause (the latter through either a right to contract or a right to privacy). Does that sound like principled opposition to you? If so, doesn’t it strike you as a headlong leap into judicial activism?
April 14, 2010, 3:56 amThe Volokh Conspiracy » Blog Archive » Health insurance mandate as … | Nationwide Insurance says:
[...] the original here: The Volokh Conspiracy » Blog Archive » Health insurance mandate as … Share and [...]
April 14, 2010, 4:26 amhaha rimshot says:
But it doesn’t “amount[] to a decision to self-insure,” anymore than the refusal to purchase hats amounts to a decision to manufacture one’s own hats. You are piling “inference upon inference in a manner that would . . . convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” Lopez, at 567. One could infer a reliance on substitutes from a refusal to purchase virtually any product — thereby affecting the market of the product in question. Could Congress therefore compel the purchase of any product whatsoever?
Bottomline, you’re still inferring activity from inactivity.
April 14, 2010, 4:28 amhaha rimshot says:
But laws against public nudity are generally local or state laws, which fall under the states’ police powers. Just because a state may require you to do something doesn’t mean the federal government can. Which is kinda the point: the fact that a state such as Massachusetts may mandate insurance coverage doesn’t settle the constitutionality of Congress doing the same.
April 14, 2010, 4:42 amhaha rimshot says:
But see Heart of Atlanta Motel v. U.S., 379 U.S. 241 (1964), in which the Court squarely rejected such arguments.
April 14, 2010, 4:48 amnoahp says:
Going back to the infamous case about growing wheat to feed a farmer’s own chickens, doesn’t this kind of claim (the ‘mandate’) amount to telling a farmer he must grow wheat and how?
April 14, 2010, 5:58 amis bluetooth headsets better for you than holding a cell phone to your ear? is there much radiation exposion? | Bluetooth Cell Phone Accessories says:
[...] The Volokh Conspiracy » Blog Archive » Health insurance mandate as a privacy right viola… [...]
April 14, 2010, 7:50 amjrose says:
That sounds correct to me with one additional condition: Congress must be motivated by a legitimate desire to influence the market, not as a pre-text to compel the purchase. If the Necessary and Proper Clause, as applied to the Commerce Clause, permits Congress to prohibit production of a product for private use in order to influence the market, why wouldn’t requiring a purchase also pass muster?
That said, The Court need not reach this issue in finding the mandate Constitutional. It is sufficient to note that any regulation (whether or not it involves economic activity) is permitted under the Necessary and Proper Clause, if without the regulation a legitimate exercise of the Commerce Clause power would be undercut. In this case, the mandate keeps the regulations concerning preexisting conditions from being undercut.
April 14, 2010, 7:55 amdaniel says:
Just a quick question. Why is it ObamaCare when in fact he had little to do with the final shaping of this law. He did a lot toward getting this passed, but if you are going to name something after him, don’t you think it should be something he did?
April 14, 2010, 9:07 amPubliusFL says:
With respect to those who had voluntarily entered the hospitality market, at least. Harder to say whether SCOTUS would have reached the same conclusion if the law had required every citizen to be willing to accept (on a nondiscriminatory basis) interstate travelers as boarders in their home, whether they had any interest in becoming innkeepers or not.
April 14, 2010, 9:35 ambyomtov says:
Requiring Plaintiffs to devote a penalty or a percent of their personal income for a purpose which they otherwise would not voluntarily choose based on individual circumstances is an arbitrary and capricious “taking” of property.
I don’t get this taking argument at all.
Any taking involves making someone give up property they would rather keep. The question is one of compensation. Is the insurance you get just compensation? Well, you might not think so, but someone whose property is taken by eminent domain doesn’t like the price either. Isn’t the question one of market values, rather than private values? And it seems the market value of the insurance policy is, or will be, well-established.
April 14, 2010, 10:06 amJoe says:
Among the lawsuits filed against Obamacare
can we call Medicare stuff passed during the 1960s, LBJ-Care? Lets be consistent.
who do not wish to be subject to the health insurance purchase mandate,
so they will pay the tax, right? no one is mandated to buy insurance like they are to educate their children.
the power to regulate interstate commerce does not include the power to force people to purchase a product.
no one is forced here
“Had the Founders intended the commerce power to be unlimited, enumerating three categories of commerce for Congress to regulate would have been wholly unnecessary.” (And as Justice Thomas pointed out in Lopez, the theory of an unbounded interstate commerce power is also contradicted by Article I’s enumeration of a separate bankruptcy power.)
The power here is tied to interstate commerce. It is not “unlimited” akin to a freestanding law against possession. Thomas concurred alone in Lopez
the compelled purchase of health insurance also constitutes the ”taking” of private property under the Fifth Amendment to the United States Constitution. Requiring Plaintiffs to devote a penalty or a percent of their personal income for a purpose which they otherwise would not voluntarily choose based on individual circumstances is an arbitrary and capricious “taking” of property.
taxation that can be avoided by doing something (e.g., buying an environmentally friendly device) is not taxing … this sort of thing wouldn’t have flied in the 1920s … even Bailey v. Drexel involved a significant tax, one to avoid a decision made by the Supreme Court on the point, not one this small.
For the purposes of a substantive due process analysis there is no meaningful distinction between a person who asserts the right to contract or associate with another private entity and a person who asserts the right not to enter a contract or to associate with another private entity.
yes, SDP analysis like this will fly
to be free from entering a private contract or an involuntary association.
can I use this argument to avoid jury duty too?
Moreover, compelling Plaintiffs to enter into a private contract to purchase insurance from another entity will legally require them to share private and personal information with the contracting party.
Whalen v. Roe upheld a limited requirement to supply personal information and personal contractors are used in government functions in various cases so this would come up in other cases too … privacy laws are obviously important … still, again you don’t HAVE TO BUY INSURANCE. Pay the tax. Having children requires submitting private information to other parties in many cases too. The result are tax deductions. I’m unsure if this is a problem too.
In contrast, the insurance mandate is a mandate for the involuntary disclosure of many of the most intimate details about one’s life–and making that disclosure to a corporation that in effect functions as a highly-regulated public utility, and which will turn the information over to the government under certain conditions.
the same can be said about garbage pick-up … Brennan wrote a good dissent (and a few state courts agreed) as to the privacy violation potential there.
April 14, 2010, 10:09 amJoe says:
“is not taxing” … sorry, I meant “taking”
April 14, 2010, 10:20 amJeffH says:
The oral argument from McDonald v. Chicago should be evidence enough that this court is not going to be revisting any economic liberty or right to contract arguments any time soon.
April 14, 2010, 10:28 amJMA says:
K, I’ma stop reading any and all “arguments” starting with “Obamacare is a dirty word and we don’t say that here.”
April 14, 2010, 10:40 amwhiskey says:
If the 14th Amendment’s equal protection clause means anything under Barnett’s originalism, how does the federal government not have a general police power?
April 14, 2010, 11:15 amDesiderius says:
Jeff H.,
“The oral argument from McDonald v. Chicago should be evidence enough that this court is not going to be revisting any economic liberty or right to contract arguments any time soon.”
Look forward to reading that argument. In the meantime, the terrain has changed; to the extent that the recent past may not be such a reliable guide to the immediate future.
“Nothing concentrates one’s mind so much as the realization that one is going to be hanged in the morning.”
- Samuel Johnson
April 14, 2010, 11:37 amMark Field says:
Do you apply the same standard to those whining about the use of the word “teabaggers” to describe the Tea Party movement?
April 14, 2010, 11:46 amChrisTS says:
Did you read any prior to making this announcement?
April 14, 2010, 11:56 amloki13 says:
Desi,
Just got back. I think the oral argument from McDonald is a good guide to what the Court is thinking, but the definitive answer will be in the final ruling. If, as I expect, the SDP argument wins out over PorI by 8-1 (Thomas, J., dissenting) then I think we can be fairly sure that the Court will not be eager to look into new rights.
As for your earlier questions (exchange of limited positive rights for more protection of property rights), the answer is not so simple. It’s not like you can just do a trade-off (you get these five rights for more property right / contractual right protection). What you’d be looking at, instead, is allowing the judiciary to go back to finding more rights- either “ordered liberty” or “natural law” or “rooted in the history and tradition of our nation” (cf. Glucksberg) or extending their antenna into the ether (19th century) or divining the inkblot of the 9th Am. etc.
There are those conservative (libertarians) who are happy with this, because they believe that a more active judiciary will strike down more laws, and the fewer laws, the more free we will be. There will be liberals that are happy with thi because they can expect liberal justices to find all sorts of rights for the courts to enforce that legislators won’t (and therefore bypass the legislature, like they did in the 60s and the 70s). I happen to think that these two goals are in conflict- but, hey, it would be entertaining.
So to answer your question, I think that an alliance would be possible, and both sides would end up getting something they’ll end up being really unhappy with. Win-win?
April 14, 2010, 1:06 pmDilan Esper says:
Besides that, mandatory auto insurance is usually for a harm you might do to someone else, not for the auto owners.
So no fault insurance laws are unconstitutional, then?
April 14, 2010, 1:23 pmDilan Esper says:
I’m considering offering a standing bet with any of the Volokh bloggers or commenters who think that these arguments are going to get any traction.
Basically, my bet is this: all challenges will ultimately lose, at the District Court, Court of Appeal, and (if any case is taken) Supreme Court level.
We’d have to escrow the funds, though. I want to get paid.
April 14, 2010, 1:26 pmMQuinn says:
I respectfully disagree. The individual mandate tax/penalty is applied only to those with income. It is structured as and functions as an income tax.
April 14, 2010, 1:38 pmRoger Zimmerman says:
Re: the takings argument and …
The full takings clause includes the allowance for “public use” and then requires compensation. Income taxes arguably fit the constraints on both counts. In the case of health insurance, it is a stretch, though I believe the plaintiffs should have included those part of the clause and made their argument against them explicit.
April 14, 2010, 2:18 pmJoe says:
The individual mandate tax/penalty is applied only to those with income.
So rich people without income (or token amount from interest or whatever) don’t have to pay the tax?
April 14, 2010, 2:20 pmSpendulus says:
So under Constitutional privacy rights, a woman has a right to choose abortion procedures (when the Left wants such a right, this is where it is pidgeonholed).
Now under the Constitutional right to privacy, conservatives argue that a mandated release of medical records and other parts of mandated health insurance is a violation of said right to privacy.
I’d like some right to choose and some of those privacy rights.
The right question may not be any of the above but rather “Do we have a hard or soft landing in our Constitutional crisis”.
April 14, 2010, 2:23 pmEvan Thomas says:
Comparing auto insurance to health insurance is apples to oranges.
Auto insurance is voluntary. If you want to drive legally, you purchase. The state government doesn’t require me to buy auto insurance. They simply have the right to punish me if I do drive without it.
Auto insurance is a voluntary contract for those that choose to drive. Millions of Americans don’t drive and thus have no car insurance. Car insurance isn’t opt-out, it’s opt-in.
With the health insurance mandate, there is not a voluntary contract. The only way to opt-out of mandatory health insurance is death.
Driving a car is not a civil right. Breathing without punishment is.
April 14, 2010, 2:24 pmJohn Herbison says:
Brian and Kasinski, southern folk wisdom holds that, when one throws a stick into a pack of dogs, the dog that gets hit is the one that hollers. My substantive point was that the privacy/forced disclosure argument may have more merit than some other legal theories floated by the challengers, even if I am skeptical of some challengers’ motives.
I realize that it is easier to respond to snark than to substance; however, the conundrum I was trying to address is that acknowledgement of privacy as a fundamental constitutional right is based on a line of cases–such as Griswold v. Connecticut, Roe v. Wade, Casey v. Planned Parenthood that those jurists who care most about the impact of their decisions on Republican political fortunes have little use for. I am therefore skeptical that the result-oriented Republican scolds on the bench–SCOTUS still includes three of the Bush v. Gore wardheelers, plus Roberts and Alito–will find any attack on health insurance reform which is based upon the recognition of a fundamental right to privacy to be persuasive.
April 14, 2010, 2:24 pmGuest12345 says:
Except for the minimum amount of $750. (Or whatever it is now.)
To go completely off topic, this business of levying taxes on the basis of action or inaction is interesting. Consider, in an effort to control STD’s the government chooses to encourage condom use. The way they choose to do this is to use the commerce clause to regulate condom sales. Since the availability of abortions reduces the incentive to use a condom, which leads to fewer condoms purchased, they decide to levy two taxes, one on people who perform abortions and one on those that get abortions. The amount of the tax will be X% of income or $Y minimum. (Alternately, they levy a tax on everyone with a refund for those who don’t perform an abortion or get an abortion.) Keep in mind they aren’t banning abortions, they’re just encouraging condom usage. What values of X & Y are applicable? X = 2.5 & Y = $750? X = 10000 & Y = $5,000,000?
Long term, I am thinking that abortions won’t survive Obamacare in general anyway.
April 14, 2010, 2:26 pmjgreene says:
It is imperative that the American People vote these tyrants and socialist Democrats out of office in November 2010 and in 2012.
We have to insist that the ORIGINAL INTENT of the Constitution’s General Welfare clause be upheld and overturn the unconstitutional usurpation of the Sovereignty of the People beginning with the SCOTUS court case of Wickard v Filburn.
The Federal Government of the United States has for too long run roughshod over the States and the Sovereignty of the People.
April 14, 2010, 2:28 pmToddK says:
Cityduck,
I agree with you entirely that case citation and legal argument in a complaint is unusual if we’re talking about a normal case. This ain’t no normal case. I have included extensive legal argument in complaints before in unusual constitutional or structure-of-government cases. I would say that in that field of law, extensive citation IS the rule, because the issues are so unusual. Further, the facts are usually not disputed, so if all you pled were facts, they would be “This law was passed. It is unconstitutional. Prayer for relief.”
Don’t be so snotty.
April 14, 2010, 2:28 pmEvan Thomas says:
So would a woman who gets an abortion have to disclose that to the government via their health insurance company? Wouldn’t that be a threat to the right-to-choose mantra?
Also if someone had a STD or high blood pressure because of behavior at the home – say lots of ice cream, wouldn’t their dietary habits be covered under Lawrence v. Texas?
April 14, 2010, 2:34 pmDavid Schwartz says:
Or you could just pay a tax penalty.
April 14, 2010, 2:35 pmSpendulus says:
May I respectfully suggest, to those who have supreme confidence that the mess known as ObamaCare will be found by the Supreme Court reconsider. This nation is not the first that has gone down such a path by any means.
Video of part of Documentary on Argentina
We were called the hand-raisers
“We were called the hand-raisers
We were devoted, committed
We voted with our eyes closed
As the party asked us to
We were called the hand-raisers
We legislated without remembering
And our voters were betrayed
And we didn’t hear their boos”
From the documentary “Argentina’s Economic Collapse”.
April 14, 2010, 2:51 pmJeff says:
until one is required to purchase collision insurance anyone who waves the “Obamacare mandate is the same as auto insurance flag” is simply making a apples and oranges comparison and should be ignored. (liability insurance cover your ACTIONS, i.e. an accident as opposed to your INACTIONS, see the difference.)
As far as the “you’ve got to buy clothes” line of thinking … NO YOU DON’T … you can make your own and not be arrested for indecent exposure … its just easier to buy clothes than to make them of course … otherwise you could be cited for “not buying clothes” …
wait, cited and fined for NOT doing something ???
Since Obama is stirring the pot with the Citizens United case where he clearly thinks the court should follow the populist talking points it will be interesting to see his defense of a bill that clearly is out of favor with Americans of all stripes … but then again hold 2 opposing viewpoints appears to be his strong point …
April 14, 2010, 2:52 pmMatty_J says:
This differs from the mandate to maintain automobile insurance in one way. No one says you have to buy auto insurance. The alternative, of course, is that you won’t be able to drive. However, the HCR bill will require you, as a condition of living in the US, to purchase and maintain health insurance. You have no alternative,except death.
April 14, 2010, 2:54 pmBrian says:
Not so… There is no “takings” involved in auto insurance. If I buy a vintage auto with the intent of parking it in storage as a collectible, I am not compelled to buy insurance for it. I am not financially penalized should I choose not to insure it either. Instead, the insurance is a pre-requisite for state vehicle registration. If I do not wish to register and do not wish to insure, I don’t have to. There are consequences of course, but therein lies the difference. I can own a car without insurance, but cannot legally drive it on public roads. I cannot be penalized for simply owning an uninsured vehicle.
April 14, 2010, 2:59 pmJonC says:
Could a ‘taxpayer’ get insurance, without disclosing any personal information? If health-insurers are unable to refuse an application due to preexisting conditions, then would they also be forced to provide insurance to an applicant that provides no personal information of any kind?
April 14, 2010, 3:06 pmRAK in Texas says:
People do NOT have to buy clothing. They could (and some do) choose to make their own.
April 14, 2010, 3:10 pmMartha says:
My friend has often complained that his inaction carries a tax penalty–specifically, his inaction in not fathering children. Clearly the tax code has penalized him merely for breathing (and not fathering children). I see now that the State’s forcing him to father children is a pretty huge invasion of his privacy, too. He hadn’t thought of the privacy argument, but I’m sure he’ll be happy to start complaining about it.
April 14, 2010, 3:12 pmDavid V. says:
But, again, this is state law, correct?
Which brings it back to comparing against other Federal programs like SSI and Medicare- compelled to pay in to but not compelled to use.
April 14, 2010, 3:15 pmGuest12345 says:
I don’t know about Medicare, but I have an uncle who was a teacher for the state of Nevada for decades and never paid into Social Security. Now that he’s retired, he regrets that his non-contribution means he only receives limited distributions, but never the less he didn’t have to pay:
April 14, 2010, 3:30 pmdmitry b says:
Actually, at least in California one is not required to buy auto insurance. What is required is financial responsibility which is defined as either of:
- A motor vehicle liability insurance policy
- A cash deposit of $35,000 with DMV
- A DMV issued self-insurance certificate
- A surety bond for $35,000 from a company licensed to do business in California.
[http://www.dmv.ca.gov/pubs/brochures/fast_facts/ffvr18.htm]
April 14, 2010, 3:31 pmRichard G says:
David Schwartz says:
“The “mandate” is actually a tax on not buying health insurance.”
—
Good one. The Schwartz is strong in this one commander.
So I guess the death tax is a tax for not breathing?
April 14, 2010, 3:35 pmMaybe we need a tax for not thinking. Applied to Congress retroactively we could pay off the National Debt.
Hyphenated American says:
A lot of people still claim that you will be required to pay a tax if you don’t buy insurance. This is false on its face, because the main legal proponent of this legislation, Barack Obama, specifically said publicly that this is not a tax. The law was written and signed with explitic guarantee that it is not a tax.
April 14, 2010, 3:38 pmIn other words, the people of America are forced to disclose their private health information or suffer a fine. If this stands – does it mean that the federal government can legally compel all of us to agree to government wiretapping of our phones without the court order or suffer $100,000 fine?
David V. says:
Now this is interesting. But the state can only do this for it’s employees. Can the state do the same for any business within it’s borders?
And Section 32 feels related to this discussion re: mandate vs. taxation
April 14, 2010, 3:44 pmAustin says:
Even if nobody is actually “required” to buy health insurance, doesn’t the individual mandate tax substantially burden the exercise of the right to privacy in one’s medical records? And at that point, we’re into strict scrutiny land anyway, right? By way of analogy, a $750 tax on abortions would be subject to very, very strict scrutiny from the Court. And in such a case, the defendant wouldn’t get anywhere by arguing that he hasn’t actually “prohibited” anyone from having an abortion.
Also, at the end of the day, it looks to me like those who call the individual mandate an unconstitutional overreach of federal power are going to win even by losing. Their point is that the feds can’t force people to buy something as a condition of existence. The best response to that argument is “wait a second, we’re not forcing you to do anything; we’re just taxing you, and by the way, we can’t even enforce this tax.” If that’s the argument that carries the day, the opponents of Obamacare will (at least from a public relations perspective, if not a legal one) have proven their point — which is that the federal government can’t force people to buy health insurance.
April 14, 2010, 3:47 pmGary H says:
David V
April 14, 2010, 3:49 pmSSI and Medicare are not contracts and not insurance. SSI and Medicare have a tax component and a benefit component that are only loosely tied together. Too much to argue here….
David V. says:
I still don’t get this tack. If you choose not to participate and pay the tax, your records are not revealed to anyone. And when you do choose to participate, your records do not get revealed to the government. Same as now.
April 14, 2010, 3:56 pmHyphenated American says:
David,
why can’t same argument be used for warrantless wiretapping? All citizens may be told either to give government authority to listen and record all your phone conversations, or you are forced to pay $10,000. Would this be legal, in accordance with US Consitution?
April 14, 2010, 4:02 pmAustin says:
“If you choose not to participate and pay the tax, your records are not revealed to anyone.”
But you have to pay a tax/fine in order to not participate. How does that not burden your right to keep your private info to yourself?
April 14, 2010, 4:06 pmDavid V. says:
No. But there are a number of reasons I don’t find this to be a valid comparison- namely you are not compelled ever to share your medical records with the government regardless of your choice to pay the tax or not. And your example clearly does directly violate privacy.
But thankfully, The Patriot Act legalized(legitimized?) warrentless wiretapping and all we had to pay for was the creation of DHS.
April 14, 2010, 4:11 pmSteven says:
I’ve been beating the right to privacy drum for awhile now. I think they’re just going for the low hanging fruit here. I’d like to also see arguments made that a great deal of the regulation of the insurance companies was not done for the stated goals (i.e. to keep the insurance companies honest in their dealings with the public). They were regulated for the social goal of forced equality and/or to regulate us the public. Which is another violation of our right to privacy / freedom to enter into contracts of our choice (which might be more of less coverage than the government exchanges will mandate).
April 14, 2010, 4:13 pmAdmirer says:
I love these threads because somebody eventually says something thought-provoking: doesn’t JonC have something?
In other forms of insurance, disclosure is required for pricing and pooling, etc., but does health insurance? The health plans I’ve been on have never asked for “personal” information at all other than the usual address, SSN, phone numbers. It’s life insurance that’s snoopy with regard to blood tests, prior surgeries, family health, etc. I haven’t read the American Cartographers Act, so clue me in.
April 14, 2010, 4:14 pmGeoff says:
So lets make the liberals pick between Roe and health care reform.
April 14, 2010, 4:15 pmDavid V. says:
I think we’re veering in to reasonable/unreasonable burden here. I get what you are saying but it’s not very strong – it seems a reasonable burden.
April 14, 2010, 4:17 pmDavid V. says:
Ha. Nice.
This is a very good question. The providers are private companies and can set the requirements, no?
April 14, 2010, 4:22 pmhnf says:
Bingo. To the extent disclosure of personal information was a prerequisite to purchasing health insurance in the past, it would seem to be of little purpose going forward given the ban on discrimination due to pre-existing conditions.
April 14, 2010, 4:22 pmHyphenated American says:
David,
“But there are a number of reasons I don’t find this to be a valid comparison– namely you are not compelled ever to share your medical records with the government regardless of your choice to pay the tax or not. And your example clearly does directly violate privacy. ”
Where does the Consitution differentiate between the enforcement of sharing your most intimate private information with private or government entitites? Are you saying that the government can fine you $10,000 if you refuse that a private company were allowed to listen and record all of your phone calls – and this would be Constitutional?
April 14, 2010, 4:25 pmSteven says:
Admirer says:
“In other forms of insurance, disclosure is required for pricing and pooling, etc., but does health insurance”
When you enter into a group plan, like with an employer, yes. If you try to buy
April 14, 2010, 4:27 pmyour own 1 person policy, they ask a lot of questions.
byomtov says:
hnf,
To the extent disclosure of personal information was a prerequisite to purchasing health insurance in the past, it would seem to be of little purpose going forward given the ban on discrimination due to pre-existing conditions.
Indeed. When I first moved to MA, before the Romney legislation, the state had community rating. When I applied for an individual policy I was astonished that the “application” wanted only my name, address, age, maybe SSN, and asked me to confirm that I was a full-time resident of MA. That’s it.
April 14, 2010, 4:29 pmAustin says:
“I get what you are saying but it’s not very strong — it seems a reasonable burden.”
What would the Court say about a $750 (and up) tax on abortions? Would they say it is a reasonable/not undue burden? Of course not. They would drop the strict scutiny hammer on that in a second.
With the individual mandate, the government is forcing you to pay $750 (or more) in order to exercise your right to keep the most intimate details about your body to yourself. Surely strict scrutiny would apply. Of course, the feds might be able to make a decent argument that they pass strict scrutiny. That’s another question.
April 14, 2010, 4:36 pmDavid V. says:
No. Where is the public welfare protected in them listening to everyone’s phone calls? Where is Commerce? I am a novice, but this feels like a specious argument.
And for the nth time, I despise this bill(PPACA). But not because it’s potentially legally flawed but because it is logically and economically flawed. To achieve both goals, Single Payer is precisely what the country should have done and eliminated the notion that health is an insurable thing.
April 14, 2010, 4:37 pmDavid V. says:
Yes, because it is singular almost never used(comparatively) procedure. The tax imposed (if you can afford to pay it) is for a pool that goes to every procedure, including the one who pays the tax when they have to go to the emergency room. Reasonable.
April 14, 2010, 4:39 pmke_future says:
David V., I disagree. It is not a reasonable burden. I should not have to pay the government in order to keep my personal information private. If you think this is reasonable, may I humbly suggest that you put the crack pipe down.
And to those of you who are claiming that it is not a tax because the law says it is not a tax are just plain silly. Calling it something else in no way changes what it functionally is.
April 14, 2010, 4:52 pmAustin says:
David, “reasonable” is not the same thing as “necessary to achieve a compelling state interest.” I think you are mixing the commerce clause analysis with the substantive due process analysis. They are two separate issues.
April 14, 2010, 4:55 pmloki13 says:
Huh. Amazingly, there is very little about the free-floating right of privacy. We have some case law about abortions and contraception (the Griswold/Roe line of cases) and we have the sexual autonomy in the home case (Lawrence, and, perhaps, the 5th Cir. dildo case) but there is no case law supporting a completely untethered higher-level right to privacy, as opposed to more granular applications of it. So you set up a false dichotomy. This would be similar to someone mounting an attack on the income tax saying it violates the right to privacy (how much we earn and from what sources), and that we’d have to chose between Roe and the IRS.
On a more salient point that I think many conservatives are missing-
the bill that was passed was substantially similar to the GOP counter-proposal to Clinton’s failed health care plan (I think the Heritage foundation was a major intellectual contributor to it). In other words, this is a more “free-market” alternative to unviersal coverage. A plan that was single-payer and funded from general revenue would not have any of these supposed constitutional problems. But would probably be more unpalatable to conservatives.
So, what happens if, four years (or so) from now, after so many people are covered, the Court does strike it down? And people suddenly get kicked off the coverage that they had come to expect? What do you think the fix will be?
Therein lies the rub. People aren’t happy with some of the provisions of this bill (and I can understand, as this was a horrible compromise). But overall, the American people do want comprehensive health care coverage. The GOP did nothing during their time in power. While I think that a constitutional challenge is doomed to fail (I agree with Dilan on that), I think that a worse outcome (for conservatives) is that it succeeds- and we get a spiffy new constitutional bill that doesn’t need mandates….
April 14, 2010, 4:57 pmHealth Insurance Mandate = Privacy Violation - US Message Board - Political Discussion Forum says:
[...] utility, and which will turn the information over to the government under certain conditions.[/i] The Volokh Conspiracy Blog Archive Health insurance mandate as a privacy right violation The privacy issue may be the money shot to kill this Obamanation. Where oh where is the ACLU? [...]
April 14, 2010, 4:58 pmPolitical Observer says:
The auto insurance requirement that most states require is a poor analogy to the health care mandate for a number of reasons.
One, most states require both a licenses for the driver, a license and registration for the vehilce and some sort of guarentee of liabilty covereage to operate your vehicle on a public road way. There are no such requirements to operate a vehicle on private land as long as you have permission from the owner to do so. Because the activity involves use of a public surface the requirement is essentially a licensing of the use of that public resource.
A second point is that the state does not require that you purchase insurance. Instead it requires that you provided proof of your ability to provide a specific level of financial resources to ensure your ability to pay for the damage that you cause to others through your act of operating a motor vehicle on a public roadway. That can be a financial deposit with the state, a performance bond or other guarantee of payment or insurance. The choice is yours.
Finally you are only required to provide proof of financial ability to cover the damage and los that you inflict upon someone else. The states have no interest in your losses or financial obligations that you may incur on your own behalf. Under Obama care the argument that has been advanced is that you must but health coverage so that others will have lower health care cost.
The Obama analogy plays well with the simple minded media but the health insurance requirement is not the same as needing to prove financial ability to operate a motor vehicle on a public roadway.
April 14, 2010, 5:05 pmDan Lavatan says:
While the mandate is clearly a tax, as the bill instituting the tax originated in the Senate it violates Article I Section 7 of the US constitution.
I disagree that the regulatory goal is legitimate and that the tax correlates with accomplishing any goal. Pissing off a large segment of the population and then handing them a blank check just means all insurance companies would go insolvent if such a program were constitutionally enacted.
April 14, 2010, 6:00 pmniovw3hrfig says:
And Obama won’t even release his long form birth certificate. What a hypocrite
April 14, 2010, 6:36 pmMichael says:
Automobile insurance is only mandatory if one wishes to drive an automobile.
April 14, 2010, 7:35 pmDavid Schwartz says:
A bill originated in the HoR. The Senate “amended” it by replacing it with the health care bill. Personally, I think this stinks, but it’s been done before.
You disagree that Congress has the authority to regulate the health insurance industry? By what rationale?
By “legitimate”, I don’t mean that it’s a good idea or will work. I mean that it’s within Congress’ scope of Constitutional authority if done by regulation. For example, Congress cannot implement a 100% “tax” on government payments in compensation for takings because it’s trying to use its taxing power to accomplish a goal that is not legitimate as a regulatory goal.
Where the goal is the regulation of commerce, the use of the taxing power is legitimate.
April 14, 2010, 7:37 pmdagny says:
Isn’t Roe v Wade based on a woman’s right to privacy. Since Obamacare violates privacy rights how will this effect Roe v Wade?
April 14, 2010, 10:03 pmDesiderius says:
loki13,
“I think that a worse outcome (for conservatives) is that it succeeds– and we get a spiffy new constitutional bill that doesn’t need mandates….”
Hence my sudden enthusiasm for limited positive rights – in lieu of unlimited ones, which tend in time to devolve into negative wrongs, without much exception.
That said, unless liberal/progressive opinion leaders can be made aware of that tendency, I don’t see much to stop the slide.
April 14, 2010, 10:07 pmDesiderius says:
loki13,
“What you’d be looking at, instead, is allowing the judiciary to go back to finding more rights– either “ordered liberty” or “natural law” or “rooted in the history and tradition of our nation” (cf. Glucksberg) or extending their antenna into the ether (19th century) or divining the inkblot of the 9th Am. etc.”
No, what I’m looking at is a constitutional convention to bring our de facto consensus on positive rights (one that I’m not particularly happy about, as in my view the enforcement of positive rights inevitably impedes the more fundamental role of government in protecting the negative ones, but that’s a question for some future generation to tackle, given the clear consensus of the present ones) more in line with our de jure constitutional structure, in order to restore the confidence of the people in both the legislative and judicial branches.
As for conservatives wishing the courts to do “less”, surely you recognize a distinction between the judiciary replacing the legislative function (i.e. legislating from the bench) on the one hand, and on the other “umpiring” the legislative function, as in Boumediene. Perhaps as a non-lawyer, I’m seeing more of a distinction there than actually exists, but it is my sense that the distinction is still an important one for the layman, however illusory it is in practice. That layman also expects the umpire to discharge his function as actively and the legislator discharges hers, with due modesty to be sure, but no more.
If, however, the rulebook no longer reflects the spirit of the game, the time comes to change the rulebook, not for the umpire to bend the rules, or even to look the other way in a misplaced sense of “judicial modesty” while the players break them. If we are to have positive rights, let us have them, within broadly agreed upon limits*, so as to free both of legislature and judiciary from having to play the games they do to get around our not having them, and thus from the malus such games produce.
* – the consensus already exists, it’s what drives the games in the first place.
April 14, 2010, 10:35 pmDesiderius says:
Shorter version: having a government of truly enumerated powers is more important than which specific powers those be. If we wish for government to have a specific power, we should enumerate it.
April 14, 2010, 10:50 pmDavid Schwartz says:
That’s a great sound bite, but it’s obviously frivolous. Marriage and parenting are much closer to abortion than health insurance is, and the government encourages both of those with tax policies that are only considered of questionable legality by crazy people.
April 15, 2010, 1:16 amDon says:
One of the things I was thinking about, as opposed to the broad constitutional issues, is something as simple as somebody getting whacked financially due to the healthcare bill, which gives them standing.
That prompted me to wonder, Can a shareholder of a public company that just announced a charge to their balance sheet sue the government because the healthcare bill changes the original deal by withdrawing the tax-free status of the rebates?
Or, could a shareholder sue the companies for maintaining those plans after the government changed the after-tax costs of maintaining the plans?
April 15, 2010, 7:57 amJohn Herbison says:
One aspect of standing is the ability of a court to order a remedy that would address the wrong of which the plaintiff complains. In the above hypotheticals, what relief would the plaintiff request that would support an allegation of standing?
April 15, 2010, 1:47 pmour founding truth says:
As I’ve posted earlier, the health bill is entirely Constitutional, the basis however, liberals know nothing about, showing their ignorance of the framers.
Here is my post on Ron Paul’s site:
“Just ask Alexander Hamilton, George Washington, and the High Federalists, such as: Ames, Jay, Witherspoon, Stockton, Adams, Pickering, et al. who passed the Bank of the United States.
Hamilton’s defense of the Bank is in Article I, Section VIII, the last clause. Hamilton called it “implied powers” He shot down Jefferson’s defense, saying the government wouldn’t work if strictly left to “enumerated powers” leaving us to be an agrarian society, which is what the infidel Jefferson wanted.
The Constitutional mandate for the bill is called “taxes” not interstate commerce; the liberals have no idea about the Constitution anyway.
Hamilton said as long as a bill does not violate the Scriptures, or Divine Law, it’s fine.
Deutoronomy 15 implys the government provide for the poor, as the text says, “you can trade with other nations.”
How can individuals trade with a nation?” The context appears to be in a governmental context of Israel.
April 15, 2010, 3:07 pmTR says:
Medicare Part A is mandatory. If you do not sign up for Medicare, ever since Clinton, you will not get “Social Security” payments.Also, the government can demand your records any time, if you are on Medicare or Medicaid, and they often do. Also, with the “Resource Audit Contractors” other people can also look at your records. HIPAA is a fraud. It does not in any way protect your privacy. It does impose draconian penalties if someone in a hospital discloses something, but the fine print says that your “private ” medical info can be released to gov’t, law enforcement, banks, mot only without your consent, but without even your knowledge. The root cause of this whole problem lies in the UnConstitutional programs, Social Security, Medicare and Medicaid. It is unConstitutional to confiscate the earnings and labor of one citizen and bestow it on another that the gov’t has decided is more deserving. It makes second class citizens of hard-working people. It turns old people into leeches on the young, and it allows a huge underclass to gorge itself on their fellows who work for a living. There is no brake on the old and “poor” who can make appointments anytime they please with a physician, and use whatever money they please, often over trifles, like a cold, or hair on their chin. I know, because I have seen it first hand.
April 15, 2010, 9:29 pmjaybo says:
Under the Obamacare rationale, couldn’t all women be mandated to conceive children or face a tax? After all, it serves a societal good. We need future taxpayers desperately. Heck, let’s tax men too who won’t participate also.
April 16, 2010, 1:11 amMichael says:
TR, your comment is not on point. Simply put, I will not be fined if I choose NOT to take advantage of Medicare. I simply am not obligated, as a matter of law, to use Medicare.
Michael
April 16, 2010, 1:57 amFourier says:
ObamaCare includes the establishment of massive databases of everyone’s medical information. You will not be able to opt out and your entire medical history will be available to the government. This is being required so that government can control medical care with clinical guidelines and pay-for-performance penalties on physicians and other providers.
In general, private insurers have access only to previous claims data and individually reported history for underwriting purposes and many states limit disclosure periods to 10 years. ObamaCare includes no such privacy protections and in fact makes everyone’s medical record public property.
The claims on this thread that say that the mandate fee/penalty/tax is a head tax are also wrong. The fee/penalty/tax does not apply to people who have certain narrowly defined religious exemptions, people who “can’t afford coverage” as defined by federal poverty guidelines which themselves have significant problems, illegal aliens, members of Indian tribes, or people who meet some yet to be administratively determined hardship exemption.
As some of these exemptions are not dependent on income it is not an income tax. It is also not a head tax as some heads are more equal than others.
What it is is a big, fat, mess of historic proportions.
April 21, 2010, 6:19 pmMandatory insurance violates your medical privacy | Independence Institute: Patient Power says:
[...] Dave Kopel notes: [...]
May 24, 2010, 3:34 am