Question for Supporters of the Individual Mandate

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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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86 Responses

  1. Avatar North
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    says:

    Well the insurers were engaging in all kinds of fun chicanery involving cancelling coverage after subscribers got sick. Sick people and their mourning relatives suck at lawsuits. Also people with no insurance still get sick and hurt and people really blanch at leaving them on the sidewalk and alleys to die so the costs of those free riders are also conveyed to the people who do pay via increased costs.
    So the government leaps in and says if people are sick then the insurer isn’t allowed to deny coverage/service.
    But of course this would lead to adverse selection, under these rules no one would buy insurance until they were sick. Insurers would either go out of business or raise rates to unimaginable levels.
    Which brings us to the mandate, that was created so that everyone, healthy or no, has to buy insurance so that they can’t game the system.
    It sure is messy.
    Do you have any thoughts on the compulsory provision of medical care rules aka the ‘We won’t let you die on the street for lack of medical insurance” that seems to be at the heart of this?Report

    • Avatar MFarmer in reply to North
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      says:

      @North,
      Leave healthcare services and insurance to the free market — leave mercy and compassion to charity.Report

      • Avatar North in reply to MFarmer
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        says:

        @MFarmer, Irrelevant Mike. Pre 1900’s nostalgia is nice but irrelevant Mike, the law is the law. If you’re brought dying into a hospital in the US you’re legally required to be treated regardless of the ability to pay. Do you think that law is incorrect and should be done away with?Report

        • Avatar MFarmer in reply to North
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          says:

          @North,
          If the healthcare laws aren’t repealed and are allowed to progress to their natural consequences, one day you will come face to face with heartlessness, whether directly or indirectly, and then you will understand and pray for charity.Report

        • Avatar North in reply to North
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          says:

          @North, Read the question Mike. Employ the reading skills you so often exhort others to use. I have said not one word about heartlessness. I asked a simple question: Do you think that the laws that currently compel medical institutions to provide service regardless of the ability to pay are statist and wrong? Should they be done away with?Report

      • Avatar Trumwill in reply to MFarmer
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        says:

        @MFarmer, what North said. You may be willing to let people die for non-payment, but most people aren’t. And once you take that step, a free market health care system becomes impossible.

        That being said, this doesn’t mean “Then we should let the government run it all!” as the only alternative. But we need to be more realistic than letting people die for non-payment if charity does not step up to the plate.Report

      • Avatar Louis B. in reply to MFarmer
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        says:

        @MFarmer, much as I probably agree with you in terms of prescription, I can’t comprehend this kind of attitude.

        What you are essentially saying here is that it’s perfectly fine for people’s lives to be at the mercy of the kind of people who, in the immortal words of Freddie, “have had, do have, and will continue to have the kinds of parties where ice sculptures piss $200 a bottle vodka.”

        “Charity” is never a solution to anything; it’s a fucking perk.Report

    • Avatar Trumwill in reply to North
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      says:

      @North, my thought is that you deny coverage of PECs for a period of time proportional (probably 1:1) with how long you were uninsured up to a certain amount (a year, say). Or, to prevent one-month-on, one-month-off, you take the total amount of time they were uninsured over the previous year and deny PECs for that period of time.

      The problem as it exists now is that you can have a lapse of 32 days and be denied for a full year (or more). If someone hasn’t been insured for a full year, I don’t have a problem with PECs being denied for a year. But right now you only have to lapse 32, 61, or 91 days (depending on the company) and you’re out just as long as you would be if you were trying to game the system.

      Punishing those that accidentally let it lapse seems reasonable, but not nearly that much. And I think that a proportional method would probably cut into gaming of the system as much as the amount being proposed by PPACA.Report

    • Avatar MFarmer in reply to North
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      says:

      @North,
      You have no vision whne it comes to th private sector. And the reactions to this are indicative of the demonization of different ideas.Report

      • Avatar 62across in reply to MFarmer
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        says:

        @MFarmer, please don’t take this as demonization or disrespect, as I sincerely want to know.

        Where does your vision of what the private sector is capable of come from? Can you site examples of for-profit hospitals doing pro-bono work of the scale we are talking about and not passing the costs indirectly onto paying patients?

        The American public is amazingly charitible, but as my sister (who directs charity work for a massive church with lots of money and connections) says, charities don’t have nearly the resources to address the magnitude of need they see. And that’s without asking that they pick up the slack from State programs.Report

        • Avatar MFarmer in reply to 62across
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          says:

          @62across,
          That’s because so much of our resources are confiscated by the State. You have to understand private assistance from the perspective of a truly free market. The American people would support private assistance and free clinics and charity hospitals if our money didn’t first go through a rapacious welfare state. Most peopl would love to get involved in such activities — they State has restricted this part of human nature, but when released, it’s powerful.Report

        • Avatar 62across in reply to 62across
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          says:

          @62across, Mike, you’ve stated that much here again and again. Forgive me if I insist that just repeating something doesn’t make it more likely to happen. I’m asking for data to back up your assertions.

          I don’t doubt the innate generosity of the American people or question the power of people to effect positive change. It’s not a question of principles or our views of human nature. It is a question of scale. What evidence do you have to suggest that the increase in capacity for private assistance made possible by greatly limiting the State would be sufficient to meet the magnitude of need?Report

      • Avatar North in reply to MFarmer
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        says:

        @MFarmer, Mike, you appear to be going into a frenzy over nothing. I have imputed no heartlessness to you specifically nor to libertarians in general; I asked a simple question. Your frantic ad-homonyms seem indicative of an insecurity that puzzles me. Are you having a bad day or something?Report

        • Avatar MFarmer in reply to North
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          says:

          @North,
          Actually, I had a good day — the only thing I said was you don’t have vision when it comes to the private sector — the reactions I referred to are the other reactions, the ones which accused me of allowing people to die, not your reaction.Report

        • Avatar North in reply to North
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          says:

          @mfarmer, Humph, well I’m the one being accused of a deficit of vision. Now my vision may be deficient but you still haven’t answered the question about whether compelling hospitals to provide care to the dying regardless of ability to pay is an unacceptable statist intrusion into the market. Should it be done away with?Report

        • Avatar MFarmer in reply to North
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          says:

          @North,
          No, not unless we implement a free market, then hospitals should be able to turn away people if they choose to — but they wouldn’t choose to in emergency situation — hospitals that sent people back into the street to die wouldn’t be in business long. Each hospital would likely have emergency funds and plans worked out with private assistance organizations. What I’m talking about is well-funded private organizations which concentrate on social needs like medical care for the poor. But in a free market, the healthcare industry would adjust to meet supply and demand, he economy would be more vital — there would be higher employment and more people would have some type of insurance to cover emergencies. Our society is not going to let people die in the street — we’ll find a way to deal with those problems. If it can be done poorly through the State, it can be done effectively by private members of a community.Report

      • Avatar Simon K in reply to MFarmer
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        says:

        @MFarmer, Here’s a hypothetical for you Mike – Tomorrow morning President Obama and the entire Democratic causes, plus a couple of Republicans for good measure, announce that they were wrong and are going to completely deregulate the entire healthcare industry and as much of the rest of the economy as required for your to accept that this is a healthcare regime you can’t object to on ideological grounds (you can take that as far as “the whole economy” if you choose). When the consequences of this change finally pan out, it turns out that charity and productivity improvements are not sufficient to provide critically needed care for at least some people. What what you do? Would you still argue that the resulting regime was the fairest thing possible?Report

        • Avatar MFarmer in reply to Simon K
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          says:

          @Simon K,
          One thing I wouldn’t do is continue the same thing which fails over and over and expect a different result each time.Report

        • Avatar Simon K in reply to Simon K
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          says:

          @Simon K, Not really an answer to my question, Mike.Report

        • Avatar MFarmer in reply to Simon K
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          says:

          @Simon K,
          It is an answer — it implies “no”, if it turns out to not be the fairest thing possible. If supplemental action is required, and people are dying in greater numbers than they are now, it can be dealt with when necessary — society adjusts to problems when they have the power to adjust — so, what do you do, now, that it turns out that statism is not sufficient to provide critically needed care for at least some people. Do you argue that the existing regime is the fairest thing possible? Or, do you suggest we simply do more of the same?Report

        • Avatar Simon K in reply to Simon K
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          says:

          @Simon K, No, I think the current regime is pretty awful and unfortunately the timetable for reform has made it worse in at least some respects. The fully reformed regime after 2014 will be marginally better if the next congress doesn’t start messing with it. I don’t view it as “the same” although I’m not particularly a fan, for reasons you would probably agree with.

          Your ideal world and mine probably look very similar. My main worry is how to get from here to there – I’m not happy with “remove the government and all will be well” as a reform program. Absent any program for doing that – for the avoidance of doubt Obamacare is not a step in the right direction – I’m more worried about welfare than whether things are ideologically correct.Report

  2. Avatar Jaybird
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    says:

    My question was the question about thingy.

    Sometimes my wife and I engage in thingy. I understand, however, that there are people out there who engage in thingy in exchange for money.

    Blessedly, my thingy needs are met by my wife. However, for the sake of argument alone, let us posit that if I were not married and had no intention of entering the wasteland that is the dating scene, ethical considerations aside, I could see how a professional thingy provider would have a lot less hassle than some of the other options available (it seems to me that many relationships are thinly veiled closed markets where one party provides thingy in exchange for barter from the other party).

    Which brings us to the (thankfully theoretical):

    Does this possibility mean that I am adversely affecting interstate commerce when I engage in thingy with my wife?Report

  3. Avatar Lyle
    Ignored
    says:

    Much simpler, the 16th amendment allows congress to tax as it pleases:
    There is imposed a health care tax of X$ per person (actually that is allowed by the original consititution as a head tax). However if you show that you have health insurance you can get a credit up to the amount of the tax for premiums you or your employer pay (or medicare pays). No commerce clause needed no issue here the courts would have to let it go as a legal head tax.Report

    • Avatar Michael Cain in reply to Lyle
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      says:

      There seems to be little or no question that Congress can tax and buy health care for individuals (Medicaid), and Congress can tax and buy private health insurance for individuals (Medicare Advantage). However, there may still be some question as to whether Congress can mandate individual behavior which produces results that are similar — but not identical — to a program that taxes and buys private health insurance for everyone.Report

      • Avatar Trumwill in reply to Michael Cain
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        says:

        @Michael Cain, so long as congress has the ability to tax, I do not understand why they cannot simply impose a tax and then declare you exempt if you affirmatively commit some act? We play favorites with our tax code all the time. I don’t see why we cannot “favor” those who purchase health insurance.

        The mandate is a problem if you’re going to throw someone in jail for non-compliance, but that hasn’t really been discussed.Report

        • Avatar Michael Cain in reply to Trumwill
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          says:

          @Trumwill, The difference, and I grant that it is a fine point that the SCOTUS may decide does not matter, is that what I must spend to gain a tax credit in the other cases is set by the federal government in advance and is consistent. In the case of the mandate, the cost to gain a fixed tax credit (ie, avoid paying the penalty for not buying health insurance) will vary somewhat from state to state and from employer to employer. Would a tax credit with the kinds of variation in what must be spent to claim it that we will see in this case pass constitutional muster?Report

    • Avatar Plinko in reply to Lyle
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      says:

      @Lyle,

      This was up today at the Volokh Conspiracy and, as I thought the “Individual Mandate” was imposed as a tax with credits for positive action, kind of made all the discussion moot to me.Report

  4. Avatar Mike Schilling
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    says:

    Failure to register for the draft is illegal. So is driving a car having failed to insure it. So, in many places, is walking around having failed to purchase clothing.Report

  5. Avatar ThatPirateGuy
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    says:

    Did you know that I have a to pay a government fee because I rent instead of mortgaging a house. I have to pay more in taxes because of that. Tyranny I tell you!Report

  6. Avatar Mike Schilling
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    says:

    by this theory I actually am the Wal-Mart corporation

    Le entreprise, c’est moi.Report

  7. Avatar B-Rob
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    says:

    A simple explanation as to why the statute is constitutional. Article I, Section 8 of the Constitution empowers Congress to adopt “all Laws” that work toward “promot[ing] . . . the general Welfare.” Individuals who are not insured pose a threat to the general public of socializing their health insurance costs due to the statutory mandates that hospitals treat all comers. Hospitals pass those costs on the other consumers of health care and to insurers and, indirectly, to Medicare. As such, the mandate is a requirement that each individual show financial responsibility for their own health care costs.

    There is one other way we could get at the free rider problem and that is to require every adult, on behalf of themselves and their dependents, to show on their tax return that they have health insurance coverage for the coming year or face confiscation of the first $2,000 or so of any income tax return, or a phase down of a deduction, such as the child deduction. You don’t want to buy insurance? Fine, but it will cost you something to cover what government will have to pay to fix your a$$ up if you or your kids get sick.

    Personally, I would no problem telling adults that if they don’t have coverage or $100,000 or so in cash (or access to such cash via a letter of credit type instrument), then they don’t get any health care, emergency or non-emergency. This would, of course, tend to concentrate the mind because our current system puts no costs on people who just decided not to buy insurance because they have better things to do with their money. But if we are going to have a “compassionate” society that grants some modicum of health care to all, then it comes at a price to all who might use that system.Report

  8. Avatar Andy Smith
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    says:

    “Nor does the usual analogy to auto insurance hold up — auto insurance is a product tied, at the state level, to another very clearly related set of actions — owning and driving a car. ”

    Very few people don’t own or drive a car, and I don’t know anyone who, so upset with the prospect of having to buy auto insurance, exercises the right not to buy or use a car.

    If you want to make the “this is different from car insurance” argument, I think you need to emphasize that anyone driving a car is potentially impacting the safety of other car drivers. If you have an significant accident, there is a very good chance someone besides yourself will suffer personal injury and/or property damage. So even if you took a laissez-faire, everyone for himself attitude, and didn’t care if someone smashed up his own car and body, you do have to be concerned about his ability to pay for the injury/damage caused to others. Whereas if you get sick, you are less likely to impact others directly (though this is certainly possible in the case of contagious diseases). I’m not saying I completely buy this distinction, but I think it’s a better one for debating.

    Another important factor that sometimes gets left out in this discussion is the actuarial situation. Those of us who are middle-aged, or have young children, likely need regular access to the health care system, and thus mandatory health insurance makes sense. People in this group are going to use it. Twenty-something singles are far less likely to need medical care. This is not to say insurance is still not a good idea–accidents happen, and so do unusual diseases–but the cost of their insurance should reflect the far lower risks involved. But it probably doesn’t under the new system.

    Again, not saying I accept this argument either, but I like it better than a blanket dismissal of the notion that everyone should have health insurance. I think everyone should have it, but how much they should have to pay for it ought to be up for serious debate.Report

    • Avatar Trumwill in reply to Andy Smith
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      says:

      @Andy Smith, If you want to make the “this is different from car insurance” argument, I think you need to emphasize that anyone driving a car is potentially impacting the safety of other car drivers.

      Agreed. And this is pretty explicit in the law. I don’t have to insure myself or my own car. I have to insure against the damage that I cause. At least in every state I’ve lived in, it’s not been an “automobile insurance” requirement, it’s been an “automobile LIABILITY insurance” requirement.

      Does any state require you to insure against damage to oneself or one’s car?

      (That being said, I don’t see a constitutional problem with a mandate along the lines of what Lyle mentions.)Report

      • Avatar Lyle in reply to Trumwill
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        says:

        @Trumwill, There is one party that does require you buy collision and comprehensive, just like it requires that you buy homeowners insurance, the party who holds the title to the car. You borrow money you have insurance. If you pay cash or have paid off the car collision and comprehensive are optional. (Actualy for an old beat up car they make no sense anyway).Report

      • Avatar Aaron in reply to Trumwill
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        says:

        @Trumwill, you ask “Does any state require you to insure against damage to oneself”?

        Yes, Michigan does. Automobile owners are required to purchase PIP coverage to pay for their own medical care if they are injured in a car accident.Report

  9. Avatar Jaybird
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    says:

    My problem is that “health care” consists of the time of professionals for the most part (the parts that don’t are another rant).

    I don’t think that anybody can be “entitled” to the time/materials of a stranger. A parent? Sure. A child (of yours)? Maybe. A sibling? We can talk about it. A stranger?

    What exactly gives you the entitlement to the time of another person? The fact that you will die without it?

    I don’t know. I’m pro-choice. “They’ll die without your support” is one of the things that doesn’t move me, particularly.

    It makes more sense to call that clump of cells a parasite.Report

  10. Avatar Simon K
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    says:

    I find this whole area of debate pretty ridiculous, really. If the mandate is unconstitutional as written, congress will find some way of making it, or something equivalent, constitutional. The distinction between Medicare, in which the government takes my money and buys something for me with it, and the mandate, in which it merely insists that I buy something for myself, seems to be one of those distinctions without a practical difference. While it may not be in accord with the written constitution, it doesn’t seem to violate the principles behind it any more than using my money to buy Predator drones and inland naval bases, neither of which I particularly want either.

    Which isn’t to say I like the mandate very much. There are better solutions to the problem of creating a large and random enough insurance pool to make insuring sick people profitable, and in the end I don’t think “health insurance” as currently conceived of is a very good idea. But this seems like a trivializing way of attacking the current plan without trying to put anything better in its place – fine for Republican Attorneys General trying to score some political points for their runs for governor. Not really very interesting for anyone else.Report

    • Avatar Aaron in reply to Simon K
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      says:

      @Simon K, that’s not an unreasonable assumption – that if the law is invalidated before it comes into effect there will be an amendment to make it valid – or perhaps which has the effect of rendering the past litigation moot and requiring the various litigants to start over with new suits. I also think it’s more likely that, despite the novelty, the Supreme Court will uphold the law than hold the mandate unconstitutional.Report

  11. Avatar Michael Drew
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    says:

    I thought the last admission we were stridently looking for was that the individual mandate IS a tax – as written! Because otherwise, it would be, you know, maybe unconstitutional, but if it’s a tax it passes muster. Now we’re saying we want an admission that it’s an unconstitutional regulation of non-action. So which admission do we want more?Report

  12. Avatar Boegiboe
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    says:

    I’m really confused about this whole health care fine stuff. Can someone (preferably a lawyer or law student) please explain what is wrong with FactCheck.org’s analysis of this law?

    It seems like it has no teeth. Can it grow some? (Please read the “Full Answer” part of the link: I’m not trying to point to the 16,500 IRS agents packing heat issue.)Report

  13. Avatar Michael Drew
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    says:

    The other response here would be that there isn’t any reason that I can see (certainly none given here) why there is a greater line-drawing problem in madating that certain actions be taken rather than not than there is in prohibiting certain actions or regulating others. It’s always a question of what will be regulated/prohibited/mandated – and always lines wll have to be drawn by some method or other. One can equally say, Well if you’re going to prohibit this, then what will you prohibit next? as one can say, If you’re going to compel that, then what will you compel next? The line drawing is the same. It’s fair enough to say that there must just be an inherent presumption that to be compelled to act contrary to one’s volition not to act is a greater violation of liberty than to be compelled not to act in violation of one’s will to act – I get that as an argument. But I don’t see a greater slippery-slope problem in mandating actions than I do in prohibiting or regulating them. Perhaps I can be enlightened.Report

  14. Avatar Kaleberg
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    says:

    It’s sort of like demanding people serve in the army. I always thought the draft was unconstitutional, and the individual mandate is no different. They both punish inaction.Report

  15. Avatar greginak
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    says:

    @jay- unalloyed good. civilization and basic humanity are a harsh mistress.Report

  16. Avatar gregiank
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    says:

    @jay- ummm huh…when did i do that? No forbidding hospitals from turning away people in emergencies is an unalloyed good. You haven’t shared your view?Report

    • Avatar Jaybird in reply to gregiank
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      says:

      @gregiank, and I’m saying that if it were an unalloyed good, we wouldn’t need a law forcing people to do it.

      If it were an unalloyed good, people would be champing at the bit to get themselves a piece ‘o that.Report

      • Avatar Tim Ellis in reply to Jaybird
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        says:

        @Jaybird, yes, and people are. But the insurance companies are not. Because there is a profit motive involved that runs contra the public good.Report

      • Avatar gregiank in reply to Jaybird
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        says:

        @Jaybird, We have laws against rape and child abuse. Those seem to good things to stop but we still have laws against them. We have laws against not dumping toxic waste which seems to be a pretty good idea, but we still have needed laws to stop that stuff.

        You don’t really have any argument here do you? Just a bit of, if we don’t have it, then we don’t need it. And people seem pretty happy with the concept of giving medical care to people in emergencies. And you haven’t said what YOU think should happen to people in medical emergencies with no insurance. Just asking questions is easier isn’t it.Report

  17. Avatar Tim Ellis
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    says:

    I’m afraid the initial premise here is incorrect, whatever the merits of the sentiments (and I think the sentiments are sound).

    http://www.law.ucla.edu/volokh/2amteach/SOURCES.HTM#TOC33

    George Washington required able bodied males to purchase guns.

    You can also be ticketed for failure to buckle your safety belt. Nobody bats an eye about that. Didn’t purchase car insurance? There’s a fine.

    The flaw in your argument is in your extrapolation. If you make inaction regulable (and as you can see, we have for ages) then you can make ANYTHING illegal!

    Well, yes, that’s true; but if you make government able to regulate things, then you can make ANYTHING illegal, too. But government by it’s nature must be able to regulate. And just because you COULD make things illegal, doesn’t mean you will.

    The solution, in my view, is to simply make everyone a part of the already-regulated, already mandatory health insurance pool – Medicare.Report

    • Avatar Jason Kuznicki in reply to Tim Ellis
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      says:

      Requiring militia service or requiring individuals to purchase guns in case of war are powers unrelated to the general welfare in any sense at all. They fall under the “common Defence” header, if anything, and more specifically under the congressional power to raise an army. Because that power is specific and enumerated, it gets a great deal more deference.

      (Minor comment edit: I see it was 1792, was confused for a moment there about the section you meant.)Report

      • Avatar gregiank in reply to Jason Kuznicki
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        says:

        @Jason Kuznicki, Couldn’t we play the slippery slope game though with “common defense.” The gov could order us all to inform on each other or say its our duty to bend over for TSA rectal exams or some such.

        Some of the things in the constitution are just general and don’t give us a specific list of do’s and don’ts for us to follow.Report

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