Okay, So It IS a Tax. Whatever.


Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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41 Responses

  1. As I wrote at the time, the argument that the mandate was something other than a tax was not only disingenuous and wrong, it also destroyed the strongest argument for the constitutionality of the mandate: http://www.ordinary-gentlemen.com/2009/12/taxes-where-political-and-constitutional-expediency-collide/

    Had I been more interested in giving a forecast in that post, I would have also gone so far as to predict that the administration would ultimately have little choice but to reverse its position that the mandate was something other than a tax since that position was Constitutionally dubious.

    Looking back, that decision to call the mandate “not a tax” appears somehow even more incomprehensible than it did at the time. There was virtually no political gain to be had by avoiding the “tax” word at that point in the debate, and they had to have known that any denial that it was a tax would either need to be reversed or would severely handicap their legal arguments if and when the mandate got challenged in court. So they gained nothing from it and now they’re in the embarrasing position of having to completely reverse themselves, which they should have been able to predict at the time.Report

  2. Avatar Koz says:

    “Looking back, that decision to call the mandate “not a tax” appears somehow even more incomprehensible than it did at the time.”

    It makes perfect sense when you think about it. One recurring theme that deserves more attention than it gets is that Leftist-liberal politics are above all else the institutionalizion of bad faith advocacy.

    The Obama Administration made certain promises during the campaign about taxes, so for the sake of selling the health care bill it’s not a tax. Now, for the sake of advocacy before the courts it is. Now that might be defensible in some circumstances because the mandate in some ways functions like a tax, in other ways like a penalty and other ways like a fee for service. But as you point out, at no time did the Administration or its outside advocates show any accountability for what it actually is instead what was convenient at the time.

    I don’t know if you’ve seen it, but there’s an especially (for me at least) jarring revelation of the Journolist emails wherein Spencer Ackerman and his buddies conspire to accuse conservatives, eg Fred Barnes wrt embarrassing revelations regarding Obama’s relationship with Jeremiah Wright. It’s especially comical considering the whole episode was triggered by a debate question from George Stephanopolous. More on that later I’m sure.

    This is especially topical in light of the liberaltarian business over the last few days here. As I understand it, for you the point of liberaltarians isn’t to be effective as much as the opportunity to advocate in good faith for what you really believe. And to that end associating with the Left is never a good thing.Report

      • Avatar Koz says:

        What, do you think I’m making too big a deal about the Journolist thing?Report

        • @Koz, 1. Yes. 2. IIRC, the big debate during the campaign for Obama was whether he would have a mandate at all (he was savaged by Krugman, et al, because his plan didn’t have one). 3. “One recurring theme that deserves more attention than it gets is that Leftist-liberal politics are above all else the institutionalizion of bad faith advocacy.” I have no idea where to begin with this one….just wow.Report

          • Avatar Jaybird says:

            @Mark Thompson, I do think that a journolist sidebar thread might help in the short term.

            God only knows what emails will come out tomorrow.

            That’ll let this thread discuss such things as taxation… rather than how the Republicans are the only hope for something something.Report

          • Avatar Koz says:

            “3. “One recurring theme that deserves more attention than it gets is that Leftist-liberal politics are above all else the institutionalizion of bad faith advocacy.” I have no idea where to begin with this one….just wow.”

            Why is this so dumbfounding? It’s a huge issue in our cultural discourse. If there was some way we could make progress on it we’d be a lot better off.

            I forget if you were one of those who was defending Weigel, but if you were what should we think about Journolist instead?Report

            • @Koz, Do you have any idea how easy it would be to find similar private rhetoric amongst movers and shakers of the Right?

              Hell, if we’re being honest, we may as well just admit that politics itself is typically the art of bad faith advocacy. Indeed, it seems worth mentioning that the entire reason for the referenced Journolist discussion was a very real perception that the Jeremiah Wright story was being pushed in bad faith.Report

            • @Koz, And yes, I’m going to put this on the sidebar to avoid any further threadjacking.Report

            • Avatar Koz says:

              Will follow up on the sidebar when it gets there.

              “Do you have any idea how easy it would be to find similar private rhetoric amongst movers and shakers of the Right?”

              No I don’t, please enlighten me.

              “Hell, if we’re being honest, we may as well just admit that politics itself is typically the art of bad faith advocacy.”

              Do you believe this? I can assure you I don’t believe it for a minute.Report

          • Avatar Koz says:

            “2. IIRC, the big debate during the campaign for Obama was whether he would have a mandate at all (he was savaged by Krugman, et al, because his plan didn’t have one).”

            I thought it was the other way around, that Clinton’s plan didn’t have the mandate, ie, Obama’s plan “more universal”. At that time it was pretty much Demo inside baseball and I don’t think that anybody except hardcore Demo activists took it very seriously. It kinda reminded me of high school sophomores arguing about whose dkkk is bigger.

            But whichever it was Obama did make a promise to the center of the American politics not to raise taxes on anybody making less that $250K/yr. Truth be told I don’t know if that one was taken to have a lot of credibility at the time either. But, the Administration didn’t want to take a political hit on that an dodged as best as they could by saying it wasn’t a tax.Report

  3. Avatar Jason Kuznicki says:

    Let me make several things clear.

    First, this thread is not about Journolist. I don’t care one bit about Journolist, or what went on there, or what Dave Weigel did or did not write. I’ve never been a member of Journolist, I’ve never read the e-mails in question, and I’ve only been at best a casual acquaintance of Dave Weigel’s.

    What I do care about are state encroachment into private life, increasing taxes, and the — yes, I’ll say it — bad faith advocacy that has enabled it.

    Koz isn’t off base about this in the least. The Democrats really very often will say or do whatever it takes to get their preferred policies through. And these policies directly encroach on our liberties.

    What Koz denies, at his own peril, is that the Republicans are precisely and obviously the same. I haven’t forgotten, and no one should ever forget, that the Iraq war was supposed to be long over by now, it was supposed to have paid for itself, and democracy was supposed to be just a short few steps away. In 2002.

    Oh, and we do not torture. We just waterboard. Which was torture when the Soviets did it, torture when the Viet Cong did it, torture when the Khmer Rouge did it, torture when the Nazis did it, and torture when the Spanish Inquisition did it. But not when we do it! Then it’s okay!

    If that’s not bad faith, then there is no such thing as bad faith. So say what you want about the Democrats, and I’ll agree. But that’s not even half the story.Report

    • Avatar Koz says:

      1. In the runup to the Iraq War, various figures on the Right said this or that. In no way have those things been ignored. They have been circulated in the public discourse, even dominated it for large parts and lots of people held accountable, politically and otherwise.

      2. The same with the torture issue.

      Damn straight I deny this tu quoque business.Report

    • Avatar Koz says:

      Also, I’m glad you responded because the immigration issue is really giving me fits.

      Wrt Arizona, you and Mark think more or less the same thing. I think something different but for now I’m more interested in the bad faith advocacy angle than the substance of the statute itself.

      From you and people with your pov, there seems to be little if any engagement with the Arizona people or the Arizona legislature. Is this an example of bad faith advocacy for you?Report

      • Avatar Jason Kuznicki says:


        Nope. I’m trying to convince the people of Arizona and elsewhere to think differently than the way that they currently do. I acknowledge that they are not in full agreement with me, and I invite them to reconsider their views. (Alternatively, if what I’m doing in this respect is illegitimate, then no discussion of any political topic is ever legitimate once a majority has expressed an opinion. This is so obviously ridiculous that it can’t possibly be your real position. Can it?)Report

        • Avatar Koz says:

          No, it’s not. That’s why for me the key premise is the lack of engagement from people with your pov with the Arizona people or the Arizona legislature.

          There seemed to very little attempt to persuade either of those parties to do something different in such a way to respect their ability to make their own decision. And lots of this or that wormy blllshtt to prevent the law from being enforced now that it has become law.

          Is that a bad premise for you?

          If it were otherwise, ie, if you were talking primarily to the Arizona polity instead of here we’d still have the same difference of opinion but the advocacy would be legit.Report

  4. Avatar Boegiboe says:

    Unlike any other tax, according to the act, the failure to pay the penalty “shall not be subject to any criminal prosecution or penalty with respect to such failure.” Nor shall the IRS “file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section,” or “levy on any such property with respect to such failure.”

    I pulled that out of the Volokh piece. Can’t tell where they got it.

    Isn’t this fundamentally different from any other kind of tax we usually think of? All other taxes, the government can fine you or imprison you for failing to pay, but the worst they can do with this one is pester, and, at worst, maybe eventually deny you treatment if you refuse to pay and you get sick (though there’s nothing in the law that suggests this would happen). Your credit record might get pinged, which would only worry those who could really afford to pay anyway.

    So, defending the law from the point of view of the power of Congress to levy taxes may look like they were being disingenuous before, but isn’t this a big experiment in several directions, no matter which way you slice it? It’s not a tax in the way most people think, because you don’t get punished for not paying it. It IS a tax in the way the courts consider it, because Congress will use it to reimburse contractors with the government.

    So, sure, maybe they pulled a fast one so it could get through both houses and hopefully survive court challenges. But I don’t feel fooled.

    As long as we’re talking about it, I think the growing phenomenon of medical tourism shows just how broken the U.S. medical system is for everyone involved, rich, poor, middle-class, whomever. Medical tourism is American citizens, almost exclusively, traveling abroad to get treatments from doctors who were often trained in the U.S., but can’t figure out how to make enough money practicing in the U.S. to stay here. Treatments that are either not covered by insurance and too expensive to pay for here, or not allowed in the U.S. because of regulatory problems.

    There are proven effective treatments to destroy tumors with ultrasound that are not allowed in this country, but are done with equipment designed and built in the U.S.. We hired a family friend as a contractor who went to Germany to have his life saved by just such a treatment.

    I doubt Jason would disagree that our current health care system is totally botched, and largely in ways that would never have happened had libertarians been in control. But continuing to attack the first positive change to the system in decades seems wasted energy to me, serving only to cloud the waters. Other governments have nationalized their health care, gone through a tough adjustment period, and then come out with systems strong enough to…
    …save the lives of Americans whose system can’t do a thing for them.Report

    • Avatar Jaybird says:

      @Boegiboe, But continuing to attack the first positive change to the system in decades seems wasted energy to me, serving only to cloud the waters. Other governments have nationalized their health care, gone through a tough adjustment period, and then come out with systems strong enough to…
      …save the lives of Americans whose system can’t do a thing for them.

      Boegiboe, dude, good to see you.

      I have issues with an assumption or two that I think you’ve made in the excerpt above…

      You say that it’s a positive change. It seems a hair early to me to say whether it’s positive or not. From my perspective, we’re in a situation where price keeps going up indicating an increase in the rate of acceleration of demand above that of the increase in the rate of acceleration of supply and this bill does not create something analogous to supply but, instead, fuels demand.

      Maybe I’m wrong about that though… but I don’t see how it’s a positive step yet.

      At this point, I’d say that the only thing we know is that the cat is still in the box.

      When you say “Other governments have nationalized their health care, gone through a tough adjustment period, and then come out with systems strong enough to…save the lives of Americans whose system can’t do a thing for them.”, I notice that you’re careful to not say that what we’ve recently done is Nationalizing our Health Care… but what we’ve done isn’t even *CLOSE* to making us more like the countries out there that we’re shopping to go to. It’s a giveaway to insurance companies and companies that provide “health care coverage” rather than creating incentives to companies that provide “health care”.

      Hell, I would have preferred a complete Nationalization of our Health Care services to what we actually got, but instead of making us more like Denmark or more like Canada or more like Britain, what was passed was nothing more than a law that made the US more like the US… only more so.

      Which is a negative step.Report

      • Avatar Boegiboe says:

        Fair enough, I probably would’ve preferred real nationalization over what we’ve got.

        What I think we’ve been seeing over the last decade or so is not a real increase in demand, but an artificial decrease in supply caused by consistent, systematic refusals by HMOs to allow services. They only get away with that because their customers have been, increasingly, able to pay the higher costs (hidden from upper-to-middle class folks because they’re paid for out of gradually increasing upper-to-middle class salaries). In the meantime, people who actually get sick are refused coverage, people who can’t pay are shunted into emergency rooms so that hospitals go bankrupt, and people who can pay more think they’re paying less.

        It’s a legerdemain that has gone on too long. By forcing all patients to be accepted, the whole system of only allowing profitable patients in breaks down. The one, absolutely most important thing that needed to happen in health care reform was to guarantee that everyone would be covered. And that happened. That is why I say it’s an improvement. In fact that is probably the most salient feature of a truly nationalized health care system: everyone gets health care.

        Once that’s happening, everything else is just adjusting the knobs to reduce the cost to taxpayers. I suspect that the way it was done may be the most costly way to have done it to start, but we’ll start keeping our brothers and sisters healthy right away, and maybe we’ll see the government improve the cost efficiency later on, maybe with republicans in control.Report

        • Avatar Simon K says:

          @Boegiboe, If it were correct that “[What] we’ve been seeing over the last decade or so is not a real increase in demand, but an artificial decrease in supply caused by consistent, systematic refusals by HMOs to allow services” you would expect HMO profits to have risen and payments to physicians and hospitals to have fallen. This is more or less the reverse of what has actually happened – insurers in general have pushed premiums up but their take has remained about the same, where payments to providers have continued to rise. This says to me that the underlying problem is a shortage of provision relative to demand, although I should note that “demand” is a tricky concept in healthcare.Report

          • Avatar Trumwill says:

            @Simon K,

            This says to me that the underlying problem is a shortage of provision relative to demand, although I should note that “demand” is a tricky concept in healthcare.

            You touch on a big part of it on the last part. Insofar as it is a supply-demand problem, I would tag the bigger problem being “demand”. A lot of people are thinking that doctors are cleaning up cause of the reduced supply, but by and large physician compensation has been stagnant. I think the big thing is the increased demand. Faced with possible shortages of revenue (as well as fear of lawsuits), a lot of doctors are creating their own demand. Ordering new machines, paying the machines off by running the tests more aggressively, and so on.

            I say this to counter the impression some have that the increasing health care costs are due to physicians and hospitals being able to command gargantuan fees because there is a shortage of providers. The problem is that you can wipe out the shortage and end up costing the system significantly more rather than less money if doctors respond to fee cuts by simply increasing demand yet more.Report

            • Avatar Simon K says:

              @Trumwill, Yes, I agree with this. Doctors fees aren’t particularly outrageous, although the lack of transparency in pricing worries me a lot. Most of the excessive cost of medicine in the US is, as you say, due to inefficiencies in supply that create excessive “demand” – over-testing, overuse of hi-tech equipment, repeated testing, over-treatment and lack of coordination.

              The key to all of this has to be making the same entity responsible for both treatment decisions and the costs of treatment – to some extent it doesn’t matter whether that’s the government, the PCPs office, the patient or a health insurer as long as its the same person. In the end in the US I think it has to be the patient and medical group that bear the costs and make the treatment decisions, since its pretty clear neither insurers nor the government have the credibility.Report

          • Avatar Trumwill says:

            @Simon K, other than that, I agree with our comment. There is not an artificially reduced demand. All arrows seem to me to point in the other direction. Demand is inflated by the fact that the recipient does not pay for the service and the fact that the provider determines necessity (and thus demand). The insurance companies (whom I loathe) are in some ways caught in the middle.Report

    • Avatar Jason Kuznicki says:


      I am also skeptical that the new system will be an improvement. I’d add that much of the impetus for medical tourism comes from a difference in living standards across countries — in some, it’s simply cheaper to live, and medical support personnel, administrators, and the like will all earn less. Which translates to cheaper health care costs that are arbitraged away in the (very, very) long term.

      As to the penalty not being subject to criminal prosecution for nonpayment, that’s a new one on me — I hadn’t been aware of it. But I give it a slim chance of lasting very long, because the whole system can’t hinge on such a completely toothless penalty.

      Lastly, doesn’t taxation for failure to act strike you as unjust? At least with an income tax, you can avoid liability by simple inaction. Not here! (And this raises many, many constitutional issues besides.)Report

      • Avatar Michael Drew says:

        @Jason Kuznicki, The whole system doesn’t depend on it. The whole system depends on the employer mandate – that was the big quid given to the insurance companies to keep them from spiking the bill. Huge numbers of employees will ow have to be covered that don’t now – all via the employer mandate. The individual mandate really only comes into play in very small businesses and for the unemployed. And then, yes, it does seem that imprisonment is off the table. You say you don’t see how it works without imprisoning people; I say look at the language – it’s off the tabel, and the quickest way to get this health reform taken off the books would be to start throwing people in the clink over it. But in any case “the whole system” doesn’t hinge on imprisoning people over an individual mandate that specifically takes that penalty off the table. It hinges on the employer mandate, which, by the way, is not a tax on a failure to act, since choosing to employ people at a low wage without health insurance is in fact an action.Report

        • Avatar Jason Kuznicki says:

          @Michael Drew,

          You probably imagine I’m unconvinced. You’re right. The individual mandate was needed so that liberals wouldn’t spike the bill, and so that the claim could be made that millions more would be insured. Which is true enough, but somewhat doubtful as accomplishments go. If you want to keep them that way, you’re going to have to either resort to force, or endure the adverse selection death spiral that will come with a “penalty” that doesn’t ever get enforced.Report

          • Avatar Michael Drew says:

            @Jason Kuznicki, Uh, you show no evidence of having read what I wrote. Liberals, by the way, would have perfectly happy for a bill without an individual mandate to pass – the subsidies, the regulations of coverage, and a public option were the things they cared about. The insurance companies were the ones who cared about the mandates, but especially the employer mandate. The penalty will, by the way, obviously be assessed, and moreover threatened — all unpleasant enough — and that is where most of the behavior change is expected. Do me a favor – find me some examples of people who have been jailed for non-coverage in Massachusetts, where there is 95% coverage and an individual mandate (and hence five percent of the population available to be jailed, if that was the path we could expect to go down).Report

            • Avatar Michael Drew says:

              @Michael Drew,You’re obviously right that without any mandate, the selection problem is immediate and total. But the issue I’m addressing is not whether there needs to be a mandate, but whether people can/will be jailed over it. And according to the law, they can’t, and I’m saying that won’t change, because the law would immediately be repealed if it were. But the mandate will still work well enough because it’s going to be much more pleasant to just take the subsidy and sign up than to constantly be told they owe the government $700 for non-coverage. Only cranks will push the issue, though they’ll find there will be no actual threat of imprisonment to push back against – the government will just let them fall through the cracks and remain uninsured and unincarcerated, owing $700 a year.Report

            • Avatar Jason Kuznicki says:

              @Michael Drew,

              And you show no evidence of having considered the adverse selection problem, which I do think will be real, in the admitted absence of harsher penalties than your average library fine.Report

            • Avatar Michael Drew says:

              @Michael Drew, Well regardless of that impression you get I nevertheless have thought about it, but I notice you don’t deny you didn’t think about what I wrote. I don’t deny or ignore the problem, rather I specifically say I think the employer mandate, combined with the assessment of individual penalties even though explicitly foreclosing the threat of jail or liens, will be enough to make the rickety edifice hold up against that problem until further reform – always a given – is undertaken. (My defense of this law has always been mainly premised on the notion that getting the ball rolling on some reform at this time is better than not doing so. What is being done now may not work to the extent that an entirely new approach will need to be emplaced [I think that’s not what will happen, at least not in the near-to-medium term], or it might work okay but need various adjustments [much more likely].) Now, you can certainly say you think I’m wrong to effectively lay this bet, but you’re just demonstrably wron to say I haven’t demonstrated having thought about it. i would note that the mandate penalty is much greater than any (well, most any) library fine, and that library fines, like this mandate penalty, do not carry the threat of imprisonment. And yet people do still pay their library fines.

              You’d be right to point out that library fines do carry with them the revoking of check-out privileges. And in that vein one possibility for enforcement that I have seen looks like this:

              One option: Encourage everyone to obtain insurance but present those who do not with a choice. They could pay a much larger penalty than the one in the new law, while still retaining the ability to seek subsidized coverage if they do become
              sick; or they could sign a form on their tax return acknowledging that they were not insured and would therefore be ineligible for a fixed period—say, five years—for federal subsidies or for the protections in the law that allow people to buy coverage even if they have preexisting conditions. This would leave them facing a market with all the uncertainties of the current one. http://bit.ly/9VE4LV

              This gives those who do not want to participate the option not to do so, but prevents them from benefitting from the new regulations. And it doesn’t involve jail. So while I have said that that imprisonment is off the table (because it is), you’re wrong to say I have admitted there will not be penalties any harsher than library fines. Can you really believe there is nothing in between those alternatives? That the trouble associated with legitimately being assessed fines and having various options (not to include freedom to walk the streets) thereby foreclosed is not a real penalty to which people will in fact respons with behavior changes? Again, maybe I’m wrong on all that, but not coming to the same conclusion as you have on a question is not tantamount in to my showing no evidence of even thinking about the issue. ON the other hand, that I can see in your response, you really didn’t take up any of the points I made; you just declared yourself unconvinced. And that’s perfectly acceptable, but with no specific responses to the things I wrote, I’m left with not much I can say back, and that’s why I wrote that you didn’t seem to have actually considered what I had to say in any serious way.Report

          • Avatar Michael Drew says:

            @Jason Kuznicki, Did you miss, by the way, that the thrust of the VC post you link is not that the mandate is a tax, but rather that the Commerce Clause claim against the mandate is actually much stronger than had been imagined, precisely because the reversal the administration has been forced into because of constitutional vagaries — that the mandate penalty actually is a tax — is actually fairly tenuous in terms of the actual structure and language of the legislation?Report

      • Avatar Bo says:

        This discussion reminds me of when Badnarik ran on the Libertarian ticket, and it came out that he hadn’t filed a tax return in something like 7 years. I’d read my PJ O’Rourke too, so I remember wondering at the time, ‘Don’t they throw people in jail for that, or did they just keep those laws around in case they ever needed to charge Al Capone with something?’

        BTW, what ever happened with that? The wikipedia page was very short and very vague about the whole incident. It sounded there like, despite being a claimed tax resister, he mostly wasn’t paying because he was unemployed.Report

        • Avatar Jaybird says:

          @Bo, remember what he said when asked what his first act as President would be?

          He said that he’d have everybody in the House and Senate in for a 1 on 1 class on the Constitution.

          Good times.Report

          • Avatar Bo says:

            Yeah, nobody’s crazy quite like crazy software engineers, a group to which I proudly belong. It was pretty disappointing to see both the Libertarian and Green parties running crazy career politicians in 2008 instead of crazy programmers or crazy consumer advocates; if you’re going to lose any way, that just guarantees that you’re going to lose boring enough that no one cares.Report

            • Avatar Simon K says:

              @Bo, You may be the first person to call Ron Paul boring … Crazy, certainly, but I wouldn’t have gone with boring myself.Report

            • Avatar Bo says:

              I was mostly talking about Bob Barr and Cynthia McKinney, but, hey, Paul can join too.

              That said, Ron Paul is really, really boring. I mean, the idea of Ron Paul is interesting, and he did a great service participating in the GOP primaries in 2008. But the actual Ron Paul is about as interesting as listening to paint dry. Go to youtube and watch a couple of his speeches if you don’t believe me. Ron Paul may be crazy, but he doesn’t do crazy like Badnarik does.Report

            • Avatar Simon K says:

              @Bo, I’d forgotten that Barr was the official Libertarian candidate. He is that boring …

              And yes, Ron Paul isn’t that interesting to listen to. He talks like one of those crazy relatives you always try to avoid at family gatherings – like he doesn’t particularly care who if anyone is listening.Report

  5. Avatar Kaleberg says:

    It’s sort of like the tax on going outdoors in public. The government insists I wear clothing. Clothing costs money, and it’s mandatory, so it’s a tax.Report

    • Avatar Jaybird says:

      @Kaleberg, also, it’s been demonstrated that the government can draft you into the military and make you kill Japanese people.

      Seems silly to say that they can make you be a racist murderer but they can’t make you pay for coverage for your own kid’s absess, amirite?Report

  6. Avatar John David Galt says:

    The Administration is now calling it a tax for a reason: the mandate will more likely be overturned *because* the bill calls it a penalty rather than a tax. See