Replies on Compulsory Insurance

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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108 Responses

  1. Kyle Cupp says:


    Would a single-payer system, in your view, suffer from the same or similar problem that you see with compulsory insurance?Report

    • Jason Kuznicki in reply to Kyle Cupp says:

      I am unsure. Much would depend on the details. But it strikes me as untenable that we might satisfy a generality requirement, however broadly construed, by directing the particular actions of individuals and corporations.Report

  2. Aaron says:

    Are you characterizing the General Welfare Clause as being a limit on the power of Congress to impose taxes? The language “to pay the Debts and provide for the common Defence and general Welfare of the United States” gives Congress broad discretion in how it spends the taxes that it collects. As the Supreme Court observed in Buckley v Valeo,

    Appellants’ “general welfare” contention erroneously treats the General Welfare Clause as a limitation upon congressional power. It is rather a grant of power, the scope of which is quite expansive, particularly in view of the enlargement of power by the Necessary and Proper Clause. M’Culloch v. Maryland, 4 Wheat. 316, 420 (1819).

    In terms of funding a national health insurance program, it would be a much better fit if used as the defense of a new tax (or the use of the general fund) to pay for the provision of insurance to individuals. After Medicare and Medicaid, at least from a legal perspective that approach should be non-controversial.

    Much more curious to me is why, when faced with questions like this, so many are so eager to insist that the federal government has the power to do absolutely everything.

    Between the past century’s jurisprudence under the Interstate Commerce Clause and the Necessary and Proper Clause, I can understand why people would have that impression. Moreover, often it’s a question of “Where there’s a will, there’s a way” – with a creative enough approach to an issue and a broad set of “findings” to support a piece of legislation, Congress can touch pretty much any aspect of our lives. But for the Bill of Rights, I’m not sure that the qualifier, “pretty much”, would be necessary.Report

    • Jason Kuznicki in reply to Aaron says:


      This clause can be one of two things. It can either be

      (a) A generality requirement for how taxes are collected and spent. Note that even if this isn’t your preferred interpretation, said requirement would not be unreasonable.


      (b) A grant of legislative power given almost parenthetically, but so broad in scope as to make the rest of Article I, section 8, and indeed much of the rest of the Constitution, completely otiose — “serving no useful purpose; having no excuse for being.”

      The canons of legal interpretation weigh against (b). We are not to presume that legislators wasted any ink whatsoever, let alone many lines of it, not when a reasonable interpretation exists that gives force and meaning to all sections of the law.Report

      • Aaron in reply to Jason Kuznicki says:

        @Jason Kuznicki, it’s not just me who believes that the General Welfare clause grants Congress broad discretion in its expenditure of funds, it’s the Supreme Court. Consistent with case law, the clause can grant a lot more discretion than is suggested by option (a) without becoming option (b).Report

        • Jason Kuznicki in reply to Aaron says:


          Slow down a bit. I fear you’re conflating several different ideas here.

          You write: it’s not just me who believes that the General Welfare clause grants Congress broad discretion in its expenditure of funds, it’s the Supreme Court.

          But that’s not the problem. The controversy here is between people who believe roughly one of the two following things:

          1. The general welfare clause is a generality requirement in the way taxes are levied and spent. It says taxes must only be levied and spent for things that are of general benefit to all. (That would be me, Randy Barnett, James Madison, and a few others.)


          2. The general welfare clause allows Congress to do whatever it deems to be in the general welfare, whether or not this relates to taxation. (People holding this view include pretty much everyone on this thread, as well as Supreme Court majorities for most of our history.)

          No one is saying that the General Welfare clause grants broad discretion, but only in how spending is conducted. Not that I recall anyway (the thread is getting long, mind you).

          And I must say it still seems absurd to me that such an expansive power would be granted in the middle of this particular clause, and in this offhanded way, and that this supposedly granted power would turn the rest of the entire section of the Constitution into an irrelevant scribble.

          Consider the sentence in its context. It forms one part of a list of powers, a list stretching through section 8. Each of the other powers is specific, and all of them conduce to the “general welfare” in a very obvious way.

          But why would any of these be needed if the general welfare clause already worked as a general grant of power? Why have a post office clause, when Congress can simply find post offices to be in the general good and create them? Why have a clause about patents? Or a clause about coining money? I can’t believe that our nation’s most important legal document would have been written in such a sloppy manner.

          Further, I can’t believe that such an expansive power, if it were indeed granted, would be granted as part of a parenthetical construction, sandwiched in between two clear constraints on a different power entirely — after a series of constraints on the use of tax money, but before a constraint on the way taxes are assessed.

          In other words, my opponents’ reading of the clause looks something like this:

          The Congress shall have power To lay and collect taxes, duties, imposts and excises,

          1. to pay the debts and provide for the common defence;

          2. they get a grant of limitless power to do good!;

          3. but all duties, imposts and excises shall be uniform throughout the United States.

          It’s just not even remotely tenable, and I don’t care how many Supreme Court decisions say otherwise. Report

        • Aaron in reply to Aaron says:

          @Aaron, I’m aware that a handful of people have taken an expansive view of the General Welfare Clause, not consistent with its language or precedent. The point I raised, though, backed by reference to Supreme Court Precedent, related to your interpretation of the clause, not theirs. I have not posted anything that would endorse the position that “You can do anything under the General Welfare Clause”.Report

        • B-Rob in reply to Aaron says:

          @Aaron, This clause is not the only place in the Constitution where the drafters were less than precise. Think of the 10th Amendment and the 9th Amendment. The 9th Amendment, especially, is entirely open ended and not rooted in any then-current understanding of what the various unenumerated rights might encompass.Report

        • Michael Drew in reply to Aaron says:

          @Jason, I think you make a very good argument, but this: ” I don’t care how many Supreme Court decisions say otherwise,” gives a serious hit to your credibility in terms of believing you are in good faith trying to argue about what is functionally the law in our country in this world today. You can absolutely have these views about the Constitution, but they eliminate your relevance to a discussion of what the law is. Especially when you are addressing a particular matter without being clear about all the other implications of the justification for your view on the one at hand are.Report

          • Jason Kuznicki in reply to Michael Drew says:

            I do understand how the law functions today. What I’m trying to do here is to show that the way the law functions today makes a mess of the Constitution’s logical structure.

            I’d like to get back to the interstate commerce clause at some point and write about it instead — when I do, I hope you will consider revising your opinion. As a teaser, I take the commerce clause justification a great deal more seriously than the general welfare clause justification. It annoys me more than I can express here that people seem to think I’m flailing away at a strawman, when really this post was meant as a bit of a sideshow to the real argument as I see it.Report

        • Michael Drew in reply to Aaron says:

          @Aaron, Why do think I’m just talking about the IM at this point? I’m not. I’m addressing your general approach to Constitutionalism. Have been throughout this discussion (which I’ve much enjoyed, by the way)? You’re not accounting for the consequences of your logical arguments here, not to mention any ideas about the constitutional legitimacy of the cumulated effect of practice accepted over time vis-a-vis theoretical textual meanings that have almost never had force in law. You’re verging on one-man-SCOTUSism here (which is always a wonderful place to be in; I’m frequently there myself).

          If you’d see fit to reflect on any of these issues, I’d be very interested to read it, and also if you manage to rescue Social Security, Medicare, or the Department of Education from this post and thread, I’ll be duly impressed.Report

          • Jason Kuznicki in reply to Michael Drew says:

            @Michael Drew,

            I would not try to save the Department of Education. I think Social Security might be saved, but my preferred approach to doing it — means-testing — sits badly with a generality requirement. I’m aware of this, and I admit I don’t have a good answer. I consider Medicare to have similar problems. My preferred social safety net would be a negative income tax/guaranteed minimum income. With it, one could easily buy catastrophic health insurance among one’s other needs, and one would be foolish not to.Report

        • Michael Drew in reply to Aaron says:

          @Jason, that was meant.Report

        • Michael Drew in reply to Aaron says:

          @Aaron, I suppose in that case I wait with baited breath, though the point is I shouldn’t have to.Report

  3. Tim Kowal says:

    Someone once wrote regarding the Fourteenth Amendment:

    It falls to us, and not to the dead hand of 1868, to work out the details. In this we are not changing the meanings of the words. On the contrary, we are being true to them. We are uncovering the full implications of justice, which were not known perfectly by 1868 any more than they are known perfectly to us. The principles are eternal, and they are there on the page. But the work of realizing them lasts an eternity.

    Does this sentiment apply to the rest of the Constitution, viz., the General Welfare / Necessary and Proper clause?Report

      • Jason Kuznicki in reply to Tim Kowal says:

        @Tim Kowal,

        It does apply. And I have offered what I believe is the best interpretation. Shall we talk about it?

        I think my interpretation is the best not because it’s the oldest (or the newest), but because it is the only one I know of that does not rob any other clauses of their meaning, and because my interpretation — unlike the others — doesn’t result in a grant of arbitrary power.

        I take these to be necessities for any proper interpretation of any clause. But if you want to plump for arbitrary power, or for James Madison merely doodling in the margins around the words “general welfare,” then go for it. I’m all ears.Report

        • @Jason Kuznicki, Do I want to plump for arbitrary power or a loose interpretation of the text? No. I agree with your post. I just wonder how General Welfare gets held to its textual/structural meaning while the Fourteenth Amendment seems to get markedly looser treatment.Report

        • Jason Kuznicki in reply to Jason Kuznicki says:

          @Tim Kowal,

          I disagree that I am giving the Fourteenth Amendment any “looser” treatment. If anything, my reading of the Fourteenth Amendment places stricter requirements on our legislative process than yours does.Report

        • @Jason Kuznicki, “Looser” in terms of the meaning of the words, not the power they afford to the legislature.Report

        • Jason Kuznicki in reply to Jason Kuznicki says:

          @Tim Kowal,

          Again, I don’t agree. I think it’s a very loose interpretation of “all persons” to read it as “all blacks and former slaves.”

          The strict interpretation of “all people” is that it applies to all members of the human species, regardless of group affiliation, physical features, or other traits. That’s the strict interpretation of the text.

          But we argued all this before, and if we didn’t agree two months ago, we’re not likely to agree now.Report

        • Jason Kuznicki in reply to Jason Kuznicki says:

          @Tim Kowal,

          Also, I’d note that my (and modern liberals’) readings of the Fourteenth Amendment suffer from none of the defects of legal reasoning that I outlined in comment 2, above. These are the reasons I reject the expansive reading of the general welfare clause, and they clearly don’t apply to the Fourteenth Amendment.Report

  4. F says:


    I know you’re fully caught up in your Constitutional reasons to disagree with the mandate portion of the ACA, but Kay at Balloon Juice has written what I believe is the best response I’ve seen to your concerns.

    Health Care vs Health Insurance

    You don’t have to buy health insurance. You don’t have to pay a private insurer. What you do have to do is contribute to the costs of covering the pool called “the uninsured” because if you don’t purchase the subsidized policy and instead pay the tax penalty, you’ll be uninsured. And it costs to provide emergency care to “the uninsured”. A lot. And the federal government reimburses part of that cost.

    Please read the whole thingReport

    • Koz in reply to F says:

      If we stipulate that for the sake of argument that there are some ways that the federal government can force the American people to pay for uninsureds’ health care, it doesn’t necessarily follow that the Obama bill is one of those ways.Report

  5. F says:

    Kay’s post summarizes alot of what I believe about healthcare, and I also just love throwing this quote at my Libertarian friends.

    That’s why the conservative- libertarian argument fails. I can’t ensure that I won’t be participating in the health care system. I can opt out of health insurance, but I can’t opt out of health care, unless I have a crystal ball, and I’m never going to end up in an emergency room. The whole country recognizes this, or we wouldn’t mandate emergency care regardless of ability to pay, and we do.

    Please read the whole thing.Report

    • Jason Kuznicki in reply to F says:


      I will read the whole thing. For the moment I am unmoved, however, because we were already providing emergency care to the indigent long before this program came along. Far from making the process cheaper, it’s going to cost a whole lot of extra money.Report

    • Tim Kowal in reply to F says:

      This argument suggests an involuntary quality of our engagement in medical care. While it is true people don’t know what health care services they may need in the future, this does not mean there is no opting out of it. There may be procedures that are available that we don’t want because of risks, quality of life issues, religious issues, on going cost issues, etc. Just because the government makes certain emergency services available does not make them compulsory, such that our ability to choose to voluntarily engage in them is sapped out. Indeed, if that were the case, entitlement programs would create substantive due process issues.

      As for the Commerce Clause argument, even assuming, arguendo, that all of us are driven to engage in health care services sooner or later, can the fact that laws mandating the provision of emergency services establish a “market” for these services, or that they are “commerce”? It is the government, not the economy, that is the reason there are high, unrecovered costs for the provision of emergency services to indigents. This is not “commerce” for purposes of the Commerce Clause. This is a welfare entitlement program—albeit one that is hard to object to—not economic activity. To enact a new penalty/tax on the purported justification that it is necessary to regulate “commerce” is a sleight of hand.Report

    • Simon K in reply to F says:

      @F, Kay makes a good point about conflating health care and health insurance. Unfortunately, its harder to do this than it seems. For starters, health insurance is mostly not insurance. Secondly, a lot of healthcare is not in fact health care, or at least doesn’t need to be carried out by Health Care Providers.

      Lets start with the easy one. Insurance is a financial product that transforms the risk of a large, unpredictable expense into a stream of predictable payments. Its sort of like debt in reverse, except you may never really need to borrow the money but you pay the principle and interest anyway. Which makes it sound like a bad deal. Which it is – no-one in their right mind would ever choose to pay for a predictable expense using insurance, and in most cases if you can self-insure against a particular outcome by holding sufficient cash reserves, its better to.

      For most people, most health care expenses are predictable or largely predictable. Vaccinating your kids, delivering a baby and annual checkups are totally predictable. The odd minor ailment is predictable enough that it would make more sense to self-insure. So why the hell do we pay for these things through “insurance”? Well, thats easy – its tax exempt. The tax exemption totally changes the math for most of us – if the government is happy to carry at least 15% of the cost, it makes no sense to save for them at 3% interest (in good times).

      This in no way invalidates the idea of medical insurance that functions as actual insurance and pays only for unforeseen expenses against which it would make no sense to self-insure. Had the HCR bill limited itself to requiring people to have insurance against genuine emergencies, it would have been on much firmer grounds. As it is, its forcing people to invest in a tax-sheltered purpose-specific savings plan that doesn’t pay any interest and never returns the capital. Why?

      What makes it worse is that most health care can only be provided by people who are massively overqualified. In no way does it require 4 years of nursing school, let alone med school to stitch a cut, match symptoms to antibiotics, read the results of a blood test, or interview patients. These things and similar trivia and what doctors spend most of their time doing. In may cases they’re not even very good at it. This is not a trivial point – requiring that jobs be done by massively overqualified people hugely increases the costs of medical care over what it could otherwise be. But of course we have no incentive to change this as individuals, because generally the marginal cost of our care to us is zero, since we’ve already committed the money to healthcare and have no way to get it back.

      So if we’re really going to stop conflating healthcare with health insurance we could in fact significantly reduce costs and cover more people as a consequence. I don’t see how taxing people for not having a tax-sheltered, inefficient health-savings plan as well as giving them a tax break for having one really helps, though.Report

      • Boonton in reply to Simon K says:

        @Simon K, You forget that insurance does often pay for those ‘small predictable things’. Auto insurance companies give you a discount for taking a driving course. Fire insurance may pay for a smoke alarm or give a discount for installing a sprinkler system.

        Medical expenses have a higher probability than car accidents or fires but they still contain an element of risk. Yes older, obese people get heart attacks, but not every person in that category. Many will eventually get cancer in their lifetimes but not everyone or even a majority.

        Likewise smaller expenses sometimes do make sense to be paid for by insurance if they reduce the larger overall risk. Hence fire insurance may happily offer a free detector or two to new customers since that program may pay for itself if it reduces fire damages by 50%. Likewise health insurance may offer the free yearly checkup or vaccination on the simple grounds that getting people to have regular contact with their doctor increases the odds that they will take steps to lower the risk of the big medical expenses like cancer, heart disease, diabetes etc.Report

        • Simon K in reply to Boonton says:

          @Boonton, That’s true. It does make sense for a health insurer to pay for (or offer discounts for) preventative care. It doesn’t make sense to insure against those things, though – subtle difference, but its important.

          In providing a discount, the insurer reduces his likelihood of having to pay out, so the insured doesn’t have to pay anything. Thats different from insuring against those things, in which the insured simply pays up-front for something rather than paying for it on delivery and loses interest in the process.

          After all, while your home insurer may give you a free smoke detector, it doesn’t make sense to get “buying a smoke detector insurance” in which the insurer pays for a smoke detector if you choose to buy one. I picked bad examples above in talking about preventative care above in the list of predictable expenses – it does make sense for a medical insurer to offer discounts for these things, although not to factor their cost into the premiums.Report

        • Boonton in reply to Boonton says:

          @Boonton, Simon, true but no one buys health insurance just for the little things. I never heard of a policy, for example, that just pays for routine visits but not more expensive matters. The closest I can think of is ‘discount cards’ which give you access to a list of physicians for a % off their regular prices. But that’s not normally considered health insurance nor does it make up a big part of the market.

          Clearly, though, real life is a lot more complicated than the simple theory you offer. It’s not a ‘pure probability play’ in the insurance industry. There is, for example, a complicated game theory behind it too. Consider a fire insurance company that offers a discount on a sprinkler system, say 75% off for a year. In a market of only one insurance company this is a great deal if a system reduces the risk of fire damage to nearly zero. But what about a very competitive market. I may install my system this year, take my 75% off but then go to another company next year and negotiate 25% off since I’m a ‘safer’ person to insure. The investment company A made in reducing my long term risk is realized by company B. But then maybe if company B has a similiar policy company A’s loss is offset by customers moving in the opposite direction. As you can see this gets complicated. It makes sense to incentivize preventative care but insurance companies have to play the game in a much more complicated board.

          Likewise there’s also just plain old marketing. What does toast have to do with bank accounts? Nothing but banks used to give away free toasters for opening new accounts. Likewise insurance companies may offer frills like free vaccinations in liu of simply lowering premiums to keep customers.

          But then look at casinos. If anyone in an economy would offer a pure play on probability it would be them but they don’t. They bundle their ‘probability services’ with expensive drinks, hotel rooms, cheesy shows and more. Theory and implementation remain two very different animals.Report

        • Artnesten in reply to Boonton says:

          @Boonton, I think that simply illustrates further why subsidizing preventative measures/small things is a bad idea.

          It would be far better for fire insurance companies to incentivize good behavior by offering a significant discounts for customers who purchase for themselves sprinkler systems proportional to the cost-savings probability data, e.g. 75%. That way, behavior is encouraged, but the fire insurance business doesn’t lose money on customers who switch.

          Similarly, there would be lower overhead expenditures if a discount were given for smoke detectors instead of giving everyone free ones. As a customer, I’d rather get buy the cheaper insurance policy from the company who can afford to do so because they realized asking a question is much cheaper than giving away smoke detectors to all their customers. While people could lie, they could also fail to install the smoke detector correctly or simply sell it. The point is that subsidies for small, predictable events is generally going to be inefficient, which is why we don’t have insurance for gas and groceries. On the other hand, if subsidies did exist for gas and groceries *insurance* then you can be sure people would get it.Report

        • Simon K in reply to Boonton says:

          @Boonton, No, absolutely – I think we’re agreeing on this. No-one has insurance for the “little things”. I believe the only reasons we use insurance to pay for predictable expenses (not all of which are little, by the way) are firstly the tax break, and secondly the fact that the price and regulatory structure makes it extremely difficult to buy healthcare as an individual consumer. Its more than most people want to take on, and providers can’t help much without being regulated as insurers which is a huge headache for them. If the tax break and other obstacles were removed, this problem would go away.

          Its true that its possible insurers might choose to offer some predictable expenses as a freebie to attract business even without this constraint, but its hard to see how the economics would work out. In general giving something away as part of a business deal has to either be very cheap for the giver (toasters), have a benefit for them too (fire alarms, although I’m sure they’ll only discount you the actuarial benefit for the period you’re locked in for at most), or drive out competitors (software licenses). I can’t see how the economics of any of these would work out for most of the predictable stuff our insurance currently covers, but part of the problem here is that we just don’t know because of the huge market distortion created by the tax break on employer provided insurance.Report

        • Boonton in reply to Boonton says:

          @Boonton, Well there’s another reason to have health insurance that is different from most other types; health insurance acts as a ‘buyer’. By that I mean that insurance counter balances the power that doctors and other providers have in pushing expensive services. Presumably the HMO will be able to assemble its own doctors and experts to evaluate expensive treatments and figure what whats and what is more snake oil. On top of that they have negotiating power to strike bargains with docs and hospitals, something the individual isn’t going to be in a mood to do if they just got diagnosed with cancer.

          I understand the argument against insurance covering ‘little things’ but the fact is in the 1990’s HMO’s got big in the market doing just that and they were successful at least holding down price increases for a while. Before that period insurance was concentrated on only covering ‘big things’ in medicine.Report

  6. Francis says:

    There’s a lot of different ways to approach this issue. Here are a few:

    1. The idea that the federal Constitution imposes strong substantive limits on the federal government’s exercise of power has faced two historical tests: the Civil War and the Great Depression. In both instances, those who argued for a narrow interpretation lost, badly. (It’s worth remembering that this country came very close to collapse in the 30s. FDR did, really, save the country.)

    2. The statists (for the lack of a better word) don’t need to amend the Constitution. The Congress, the Executive and the Sup Ct have all seen the issue the same way. (The dissents in Raich were written by O’Conner, joined by Rehnquist, and Thomas. O’Conner and Rehnquist have left the court. Does anyone believe that the current court is more libertarian than it was then? If so, please get your meds checked.) If libertarians truly believe that the country hungers for a Constitutional amendment restricting the power of the federal government, then go get one. Ball’s in your court, sport.

    3. Limits on the exercise of federal power come from the same place as limits on the exercise of state power — we voters. Plus the 1st, 4th, 5th, 13th and 14th amendments. But the real bulwark against tyranny (about which libertarians like MFarmer are so concerned) lies not in appointing federal judges who have the fortitude to strike down federal excesses; it lies in us.

    (Unfortunately, most people suck; but that’s a really hard problem.)

    4. On health care — the idea that charity will save the poor is laughable. More to the point, it’s profoundly anti-democratic. Every industrialized state (now including the US) has voted for a comprehensive system of healthcare. The voters are getting what they want.

    The federal government imposes all sorts of penalties for inaction — try not paying Social Security taxes. I was required to register for Selective Service (do young men still have to do that?). And the federal government also imposes all sorts of additional taxes for failures to do things — I don’t get agricultural subsidies or dependent children deductions.

    5. One of the key ideas in Raich was the existence of a comprehensive federal regulatory system. Years ago, the US adopted laws requiring all emergency departments to provide service without regard to ability to pay. We did not, however, match that obligation with a system that provided basic care to the poor. So urban emergency departments became the primary provider of care for many Americans. That system proved untenable. This is the comprehensive alternative.

    By virtue of being a citizen of this country, you have (and have had for a while) the entitlement of free medical care at emergency rooms. You are now being required to pay for it in advance. No, you don’t get to opt out. Citizenship has its obligations from time to time.Report

    • Jason Kuznicki in reply to Francis says:


      I do not believe that we need an amendment. I believe that the Constitution says pretty much what it ought to say, and that it has been badly — often knowingly — misinterpreted. In other words: The good guys lost.Report

      • Michael Drew in reply to Jason Kuznicki says:

        @Jason Kuznicki, Right, but losing in the game of legitimate (and the SCOTUS is as legitimate an institution as we have in this country) Constitutional interpretation (even if it’s willfully mistaken) really is losing. You admit that, right? Having lost an argument a couple hundred years ago about what the Constitution means, that means that claiming a law that would be unconstitutional if that decision had gone the other way, but isn’t the way they’ve been calling the balls and strikes for like two centuries — claiming that law is in fact unconstitutional today is just not a rightful claim. You know that, right? Even if you are in fact right about what should have happened two hundred years ago.Report

        • Jason Kuznicki in reply to Michael Drew says:

          @Michael Drew,

          I grant everything that you say here, if you also grant that one day the precedents may also be reversed. Deal?Report

        • Michael Drew in reply to Michael Drew says:

          @Michael Drew, I actually had, “(Though that could all be changed tomorrow)” in there after that long sentence and took it out thinking I had over-caveated already. So yep, deal. But then that means you’re cool with the idea that at any one time the Constitution doesn’t MEAN what it “means”; at any one time it only MEANS what it MEANS. And does this not prove it is a living, breathing document, however we feel about that fact, since obviously in this case MEANS means, “whatever legitimately ruling jurists say it means,” and legitimately ruling jurists will be living and breathing, at least when they’re saying what the Constitution means?Report

        • Jason Kuznicki in reply to Michael Drew says:

          @Michael Drew,

          There’s a phrase you’re looking for. It’s “mainstream jurisprudence.” The constitution’s effect is what mainstream jurisprudence holds it to be, or at least the enforceable subset thereof.

          The meaning of the text may be quite different, based, as I suggested above, in part on canons of legislative interpretation that existed before our republic and will continue to exist after it is gone. One line of text is not to be read as completely vitiating or rendering superfluous large sections of the rest, not if there are other plausible readings of that line, and PARTICULARLY not when said lines were all enacted together, and when no express repeal of the supposedly vitiated lines was ever done. That’s just not a proper reading of any legal text, regardless of what mainstream jurisprudence says.Report

        • Michael Drew in reply to Michael Drew says:

          @Michael Drew, Fine, but if interpretation goes against much of that, does that mean the meaning of the Constitution is how it is applied, or what the meaning of its text is? Who says the Constitution means what its text means?Report

        • Jason Kuznicki in reply to Michael Drew says:

          @Michael Drew,

          Who says the Constitution means what its text means?

          If the Constitution does not mean what its text means, then we do not have a constitution at all. We have a bunch of suggestions and nothing more. I do not accept this view. Do you?Report

        • Michael Drew in reply to Michael Drew says:

          @Michael Drew, Because what does it even mean to say any text has a fixed meaning? I think that is an absurd idea on its face, in all contexts but especially in the case of law, which is text that is written precisely to have effect via interpretation and application. There is no way to ensure that any text will have only one meaning.Report

        • Jason Kuznicki in reply to Michael Drew says:

          @Michael Drew,

          But surely some readings must be rejected, right? Or do you hold the view that Freedom is Slavery, Peace is War, et cetera — provided only a guy with a gun tells you so?Report

        • Michael Drew in reply to Michael Drew says:

          @Michael Drew, I think the Constitution, from the very first moments of coming into contact with facts to which it was meant to apply, and even before, has not meant what its text means, if only because there was never any single authority containing that meaning (meaning exists only in minds), even during its drafting and ratification. It is a set of words whose meanings were contested even by its very composers, who were plural in their understanding of it. Thereafter, the meaning of this set of words became an infinitely contested matter, most of all in precisely the places charged with interpreting said meaning and putting it into real effect (the expectation that it be put into effect by people contesting its meaning being the only undisputed part of its meaning). The idea that that or any set of words has an immutable meaning is not just false, it is absurd.Report

        • Michael Drew in reply to Michael Drew says:

          @Michael Drew, Isn’t Freedom vs. Slavery a bad way to illustrate that surely the U.S. Constitution means what its text says?Report

        • Jason Kuznicki in reply to Michael Drew says:

          @Michael Drew,

          So any interpretation is fine by you? Any interpretation whatsoever?

          Please don’t misinterpret me — ha! — all I am saying is that some readings are clearly more justified than others. In particular, I think my reading of the general welfare clause is stronger than the mainstream one in terms of where it leaves the rest of the document.

          If you’re not satisfied by this, then let me further submit, in accordance with your views, that the First Amendment establishes Buddhism as the state religion of the United States of America.

          It’s just my interpretation. It’s neither wrong nor right, because words have no immutable meaning. Any other view would be absurd.Report

        • Francis in reply to Michael Drew says:

          @Michael Drew, Jason,

          concerning your comment: That’s just not a proper reading of any legal text, who made you philospher-king? These are not issues for which there are clear right answers, no matter how much you insist otherwise.

          Why is it that original public meaning is the decisive tool of Constitutional interpretation? All those people are dead, there’s no way to be sure what public meaning was, terms like commerce and due process are vague (intentionally so) and the founders deprived the franchise from women and slaves (among other problems).

          And, to the extent the answers are clear, your side (not good, not evil, just different) lost, twice.

          It’s also worth noting that there are plenty of Sup. Ct. decisions that would be baffling to the Founders. Citizens United is one. Bush v. Gore is another. The court’s 11th amendment jurisprudence is a third.Report

        • Michael Drew in reply to Michael Drew says:

          @Michael Drew, I’m not saying the words have no meaning, or that they don’t suggest clear ideas. Only that they don’t hold any one, complete, unchanging meaning. All the basic doctrines that determine how the words of the Constitution apply to facts have been inventions of interpreters. We have a sense of what was meant, better in some sections than others, and ultimately we have to reject certain interpretation, but it’s always at most because some interpretation is further from our sense of what was meant by the language, not by any certainty about that meaning. And usually, extra-textual values play a big role in that decision as well.

          This matter is unlike the question of whether there is a true “way things are” out there, regardless of how well that it represented in our brains via senses. The two issues are structurally similar, but in the case of the brute nature of the exterior world, there can be a Way Things Are, regardless of how we experience it. But in the case of words’ meanings – though we wonder and seek after it, there just aren’t any meanings that words have that are separate from the meaning they have To Someone. We’d like that to be different for constitutions, but alas, it’s not – they’re words too, and have no meaning apart from their meaning To Someone.Report

    • Jason Kuznicki in reply to Francis says:


      I would suggest to you, and to Michael, that you are only so complacent about interpretation because the prevailing interpretation happens to dovetail rather closely with your own policy preferences. If, as I suggested above, the courts were to re-interpret the First Amendment as establishing Buddhism — and making you a compulsory Buddhist — you’d find yourselves reaching pretty quickly for something a whole lot like my views.

      The constitution either binds according to established procedures for legislative interpretation, or else we have no founding law. All we are left with are suggestions, personal preferences, and who can get away with doing what, to whom, by force.Report

      • Michael Drew in reply to Jason Kuznicki says:

        @Jason Kuznicki, “The constitution either binds according to established procedures for legislative interpretation”

        I don’t believe I’ve said it doesn’t do this, have I? I’ve only meant to say it doesn’t have any precisely determined “meaning” apart from just those interpretations. I don’t mean to say all interpretations are equal. We have authorized interpreters precisely because we need to agree on the basic meanings in functional law. If a court said that about the 1A, it would be wrong, but not because of all the precise angles and curves between the ink scratchings on the parchment at the Archives, but because of all we’ve come to agree upon about the meanings of those scratching since they were scratched. That does call into question the proposition that absolutely any precedent can be legitimately overturned without denaturing the Republic (even if initially wrongly decided), but if you want to go to that fundamental a level, then yeah, we *are* governed by force alone. I mean, really, we are.Report

        • Jason Kuznicki in reply to Michael Drew says:

          @Michael Drew,

          Ah, I think I see the problem.

          When I speak of the canons of interpretation, I am not speaking of the results of interpretation. I am speaking of the methods — first established in the English common law tradition — for how laws are supposed to be read and how they are not supposed to be read.

          While you are always free to supply an alternative or even a fanciful interpretation, there are most certainly some proper and established methods of reading — established hermeneutics — that cast doubt on many such interpretations.

          The Constitution is to be interpreted according to these canons, as the Court itself has continuously held. One of their dictates is that

          [E]very part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary.

          No interpretation of a law is legitimate when it makes large sections of the law superfluous, unless that interpretation is unavoidable. I am arguing that the left-liberal reading of the general welfare clause violates this interpretive canon, because the “makes large sections of the Constitution superfluous” reading is obviously avoidable. As I said near the top of the thread, we can read it as a generality requirement for proper exercise of the taxation power.Report

        • Michael Drew in reply to Michael Drew says:

          @Michael Drew, I’m down with that, completely. but that is an entirely self-conscious process of contestation over the act of interpretation. It concedes everything I’m after. If we do it wrong, it’s wrong via having failed to follow a prescribed method, not via having found the text to mean something other than what it truly, specifically, eternally MEANS, owing to the shape of the scribbles on the page. Even if these protocols pre-date said text. So we agree on that, right?Report

        • Jason Kuznicki in reply to Michael Drew says:

          @Michael Drew,

          I think so. (See, Francis? No name calling needed…)Report

        • Michael Drew in reply to Michael Drew says:

          @Michael Drew, Or rather, it is a set of procedures to guide what will an entirely self-conscious process of contestation over interpretation of a text. It doesn’t give the absolute meaning of the text you want to treat; it just tells you how to do the jurisprudence following from it. This is exactly what allows for there to be interpretations that are universally agreed to be wrong by a convention outside the jurisprudential record that is at issue, while still not appealing to an absolute meaning of the text.Report

      • Francis in reply to Jason Kuznicki says:

        @Jason Kuznicki, Utter nonsense.

        The constitution is not undetermined; it is underdetermined. Bush v. Gore was wrongly decided not because it’s inconsistent with the phrase “equal protection” but because it’s inconsistent with 150+ years of judges trying to give useful meaning to that phrase.

        You are welcome to believe that the establishment of Buddhism as a state religion is as inconsistent with the First Amendment as the health care insurance mandate is with the Commerce Clause. I’m also free to believe that you’re either arguing in bad faith or you’re an idiot.Report

  7. Dave says:

    I just wonder how General Welfare gets held to its textual/structural meaning while the Fourteenth Amendment seems to get markedly looser treatment.


    Assert that all you want. There are competing interpretations of the proper role of the state police power that would call your claim into question in certain situations (if you recall, Randy Barnett defended both Lawrence v Texas and Romer v Evans on originalist grounds and he has a damn good argument).

    Due process did at one time include judicial review to determine whether or not the legislature acted within the proper scope of its power. Before judicial conservatives were all over this like white on rice, it was the New Deal progressives. The dissents in Lochner v New York as well as the majority opinion in West Coast Hotel v Parrish are good examples IMO.Report

  8. Sigh says:

    Your mode of consitutional interpretation has been rightly rejected, over and over, for numerous reasons, but perhaps chief among them — and chief among the reasons that your entire worldview is so massively, incorrigibly stupid — is that people left to themselves treat other people like dirt.

    The size and scope of governments has grown for precisely the same reasons that they formed in the first place. Are there limits? Of course, although they’re often difficult precisely to define.

    Are you even remotely in the ballpark with those limits?

    No. You’re in an ivory tower of academic arguments. Here on the ground, we’re dealing with real people, real problems, and real solutions.

    Your interpretations — your view of government, generally — has proven woefully, disastrously inadequate.

    We’ve moved on. You should, too. Although you’d be out of a job, I guess.Report

  9. Francis says:


    somewhere deep in a pile of files I have a canned brief sent to me by Legislative Intent Service regarding the use of legislative intent by California courts. Since it’s deeply buried I can’t quote from it directly, but the general idea is that legislative intent is useful, except when it’s useless, which is essentially whenever a court so decides.

    In other words, courts are very reluctant to invalidate the acts of legislatures, for good reasons (deference to the political branch) and bad (being perceived as ‘activist’). But it’s simply way too far of a step to go from judicial reluctance to the idea that the federal government is unconstrained. It is, by precedent, by the advice legislators receive from lawyers, by judicial review, and even, occasionally, by the text of the Constitution.

    No, it’s not a perfect system. But frankly I’m far more concerned about other issues. Like the court’s willingness to find money equals speech. Or the court’s willingness to limit punitive damages on corporate conduct while upholding life terms on citizens who have committed relatively minor crimes. Or the fact that median wages have been stagnant for 30 years. Or that libertarians, by allying themselves with conservatives, appear to value economic freedom of the upper class (ie, freedom from taxation) far more highly than personal freedom of everyone else (ie, the freedom from being impoverished by disease / misfortune).Report

    • Jason Kuznicki in reply to Francis says:


      I take it that I’m striking approximately the right balance, then. Leftists dislike me for this kind of stuff. Conservatives dislike me because I actually care about civil liberties, the War on Drugs, and the many breaks our system gives to wealthy corporations.Report

  10. Boonton says:

    I’m unimpressed by the unconstitutional arguments.

    1. I’d like to see a theory that shows how you can hold this unconstitutional without also voiding Medicare, Medicaid, and Social Security. Yes maybe you think the Constitution enshrined the economic thinking of the early 1800’s in stone and that can only be altered by amendment but be clear you are then mounting an argument from outside the mainstream, even from the fringe.

    2. It’s interstate commerce. The primary case here involved a farmer in the 40’s I believe who was ruled to fall under interstate commerce even though he was growing wheat for his own consumption (hence impacting commerce by withdrawing his demand from the market so to speak). Not buying health insurance is an even more dramatic impact on interstate commerce as most health care providers are required by Federal Law to provide emergancy health care regardless of your ability to pay. If the farmer is under interstate commerce (and that case has never been overturned and remains valid law today) then there’s no way the uninsured isn’t. Even if you say the farmer isn’t under insterstate commerce the only way you can exempt the uninsured is if you establish that their refusal to have insurance does not impact hospitals & providers engaged in interstate commerce.

    3. It’s primarily a tax, in essence no different from the mortgage interest deduction or any of the other numerous deductions out there. Don’t own a house with a mortgage? Your tax is $X. Do and your tax is $X minus whatever that deduction’s value is. The insurance policy is described as a mandate in the popular press but technically it’s not. Mandates like registering for selective service when males turn 18 are actual mandates required by law. Taxes are not the equiliviant to mandates. Don’t believe me? Consider Congress could set tax rates exceptionally high but make the mortgage deduction very generous essentially making it a ‘mandate’ to own a home with a loan on it. While that’s the effect of the policy it’s technically not a mandate. In this case, though, the ‘punishment’ is hardly onerous so even from that perspective it’s hard to make the case that it’s even an effective mandate rather than tax.Report

    • Jaybird in reply to Boonton says:


      1) I’d be down with voiding Medicare, Medicaid, and Social Security. Yay fringe!

      2) I’d like to see a list of things that are *NOT* interstate commerce.

      3) Once upon a time, it was being sold as not being a tax.. You know, the way that social security isn’t a “tax”. (It’s a contribution!) Only recently has it been, sure, acknowledged as being a tax… because, when it wasn’t a “tax”, it could be sold as keeping Obama’s promise that whatever percent of us out there won’t see a tax increase but a net tax cut. Sure. Anyway, are we far enough away from that promise to forget it and call this a tax? Apparently so.Report

      • Boonton in reply to Jaybird says:

        @Jaybird, 1. Fine, but then we dispense with the idea that stopping the law by having it declared Unconstitutional is based on coventional arguments for bypassing the democratic process.

        2. I would imagine we’d have to construct a test. At the very least, non-transactions would probably not be included, hence the SC ruling that a law prohibiting drugs within a range of public schools wasn’t interstate commerce as the relationship to a real transaction was too tenuious. We then would have to construct a test that differentiate between purely in-state commerce and commerce between the states. It may very well be that the barriers to commerce have gotten so low with economic development and a single currency (free banking ended a long time ago) that in-state commerce has simply ceased to exist. The founders lived in an age where it was theoretically possible at least to live purely ‘off the land’ with minimial engagement in commerce and a non-trivial portion of people did so.

        3. You’re confusing legal concepts with our everyday language. You can pretend that your parking ticket isn’t a mandate not to park there but simply a ‘tax’ on parking in that forbidden spot. I believe our legal system developed where these are two different ideas. A mandate is something the law commands you to do and failing to do it often results in a punishment (but not always). A tax is something you’re allowed to do but must pay a fee for. It’s quite possible to have a mandate with a punishment that is so trivial that it feels like its a tax (think if library fines for overdue books). It’s likewise possible to have a tax that is so large it feels like its a punishment for committing some crime (say, perhaps, the ‘penalty’ of withdrawing your 401K early and neglecting to withhold enough). They remain, though, two seperate ideas and concepts in the law.

        Rhetorically you can call a tax a ‘contribution’ and sometimes it helps to think of it in those terms (after all SSI’s benefits are linked to how much tax you paid in while other gov’t aspects, like defense or crime, are not). That doesn’t change its legal nature. Likewise sometimes rhetorically a politician can call things taxes that are nowhere near taxes (admission fees on a park, gas prices that simply feel ‘too high’, subway card rates etc.)

        In everyday language we can talk about the bill’s ‘mandate’ because its part of the overall concept of the reform. Everyone buys insurance so insurance companies won’t go bankrupt thru moral hazzard in being required to cover pre-existing conditions. But the actual bill is more of a tax on uninsurance than it is a mandate.Report

        • Jaybird in reply to Boonton says:

          @Boonton, dude, read Gonzales v. Raich again. The chick was given weed grown by Californians in California using California soil, California water, and California sunshine.

          And *THAT* was interstate commerce.

          What aint?Report

        • Jason Kuznicki in reply to Boonton says:


          2. Your test idea — I like it. It’s the way jurisprudence was done before the New Deal, and before Wickard v. Filburn.

          That was the case that ruled that even wheat grown and consumed on a farm by the family who lived there counted as interstate commerce. Why? Because such actions would have an indirect effect on interstate commerce. So Congress gets to regulate.

          This reasoning has been the foundation of mainstream jurisprudence ever since, and I am both surprised and thrilled that you would overturn it.Report

        • Boonton in reply to Boonton says:

          @Boonton, I didn’t say that I would actually. I think Jaybird would be surprised to note that Wickard v. Filburn seems to clearly support the Feds in the California law (although the fact that the Federal law was trying to eliminate weed from interestate commerce seems to me to open up a window for the state law since the Fed. gov’t wasn’t trying, say, to encourage the export of weed or increase its market price like it was with the wheat case).

          I suspect actually that interstate commerce has grown so much that it covers nearly all commerce today leaving the pure-in state commerce so small that its probably impossible to define. If, for example, you use money, banks, credit cards of any type or purchase or buy from corporations or persons who do business ‘cross state lines you’re probably covered in some way by interstate commerce. There was a time when the states were often like seperate nations and maybe then the distinction between the two was larger and more easily applied to striking down Federal laws but I think that day has passed. On the flip side most people back then lived a bit better than dirt. The Constitution was highly successful in the sense of expanding interstate trade so much that its almost impossible not to be part of it today unless you’re willing to live like dirt.Report

        • Jaybird in reply to Boonton says:

          @Boonton, Wickard v. Filburn supports a double-buttload of stuff.

          This is why I’d like a list of things that ain’t interstate commerce.Report

        • Boonton in reply to Boonton says:

          @Boonton, Well start from the assumption that Wickard was correctly decided. If it was then I suspect the mandate is constitutional. Does that mean that there could be nothing that wouldn’t be covered by interstate commerce? I don’t think so. What do you think?Report

        • Jaybird in reply to Boonton says:

          @Boonton, Well start from the assumption that Wickard was correctly decided.


    • Jason Kuznicki in reply to Boonton says:


      Some quick replies. I’ve spent too much time on this already.

      1. I’m not interested in defending these programs at the moment, although they are arguably more general than the individual directive to buy from a list of products, as I implied early in this comment thread.

      2. It may very well be a regulation of interstate commerce, but that’s not the issue we’re talking about here. I wrote this post to address one specific claim, namely that the general welfare clause “simply” gave constitutional protection to the provision. It’s far from easy. The commerce clause is another argument entirely.

      3. If it is a tax, then what may I not use the taxation power to achieve? Are there any limits to it? Or may the federal government rearrange the entire economy as it thinks best by taxing (or not) every product and service in the entire economy at punitive rates?Report

      • Boonton in reply to Jason Kuznicki says:

        @Jason Kuznicki, 2. It may very well be a regulation of interstate commerce, but that’s not the issue we’re talking about here. I wrote this post to address one specific claim, namely that the general welfare clause “simply” gave constitutional protection to the provision. It’s far from easy. The commerce clause is another argument entirely.

        if the general welfare clause is more aspirational then we fall back to the other powers. Does the GW clause prevent anything at all? For example, if a certain tax rate is ‘too high’ or a certain defense policy ‘too weak’ can the SC overrule it on the grounds that while it technically is the legislative using a power granted to it, it doesn’t fulfill the aspirational nature of granting various powers to the branches? Hmmmmmm that’s an interesting idea.

        3. If it is a tax, then what may I not use the taxation power to achieve? Are there any limits to it? Or may the federal government rearrange the entire economy as it thinks best by taxing (or not) every product and service in the entire economy at punitive rates?

        Good question. Right off the bat I’d say running up against other Constitutional rights would be an easy limit (say a tax deduction for donating to Republican candidates only or saying you can’t deduct charitable giving if the object of the giving doesn’t recognize Christ as the Son of God). Beyond that the field seems widely open.

        This reminds me of an old Firing Line I saw where Bill Buckley was trying to get a person to answer if there was any Constitutional limit on income tax brackets. Could Congress, say, tax 99% of your income? Strictly speaking there doesn’t seem to be any. The amendment clearly gives congress the power to lay taxes based on income and doesn’t have any mandated test for ‘reasonableness’. The idea seems to be that the authors recognized that such questions fall to the voters as expressed by their representatives, not justices. Gov’t did, even during the Founding, tax a rather diverse array of things (playing cards, dice, tea, stamps, paper, whiskey etc.). Is it unreasonable to assume the Founders may have figured that the best policy was to let the legislature decide what was a reasonable thing to tax to ‘promote the general welfare’?

        More to the immediate point, it is also well established in constitutuional law that the SC does not grant ‘advisory’ opinions. It decides actual cases. If a tax designed to make everyone own a poofy dog is just too much to bear Constitutionally then it gets decided when something like that gets passed and the case is heard. The SC doesn’t have to explain why the poofy dog is outside the line when it decides health care.Report

        • Jason Kuznicki in reply to Boonton says:


          The general welfare clause prohibits favoritism in taxation, I would suggest, but it’s only a suggestion. I am not altogether confident in stating how it should rule on various particular instances. I only find that a “generality requirement for taxation” doesn’t get us to “you must buy this product because everyone else will benefit.”

          As to not hearing advisory opinions, you are of course correct. Yet these kinds of cases are helpful in questions of theory. We’re not hearing any cases at all here, so we’re free to speculate.Report

        • Boonton in reply to Boonton says:

          @Boonton, Banning favoritism is not quite the same, IMO, as saying a flat tax for all. In theory I could see a tax to fund fire departments that falls harder on people who own wood buildings as opposed to stone ones. Likewise you could say those who buy their own health insurance are indirectly paying a tax to lessen their burden on public health systems.Report

      • Boonton in reply to Jason Kuznicki says:

        @Jason Kuznicki, 1. I’m not interested in defending these programs at the moment, although they are arguably more general than the individual directive to buy from a list of products, as I implied early in this comment thread.

        Fair enough but its important to note there’s two types of camps that may form around the unconstitutional idea:

        Conventional Camp: This one bill has a provision that is unconsitutional and it should be struck down.

        Unconventional camp: The way we’ve been doing law for the last 100+ years or so has been way off tract and just about all the major stuff since then should be struck down, barring radical amendments passing to bring it ‘within scope’. Yea we’re going to burn the whole house down so get ready for some radical shit dudes!

        Now you may like the unconventional camp but let’s face the fact that most of the state AGs, right wing think tanks and mainstream pundits are acting as if this argument is from the conventional camp. Let’s make it clear whether or not you can accept this argument and remain within a conventional scope of Constitutional reading.Report

        • Michael Drew in reply to Boonton says:

          @Boonton, This.Report

        • Koz in reply to Boonton says:

          “Fair enough but its important to note there’s two types of camps that may form around the unconstitutional idea….”

          Ok, but why do we have to care about that for the sake of declaring the Obama health care law unconstitutional?Report

        • Boonton in reply to Boonton says:

          @Boonton, Ok, but why do we have to care about that for the sake of declaring the Obama health care law unconstitutional?

          Because consistency is important. If the conventional camp is unviable then the ‘mainstream’ people latching on to it should be called to account. Will they agree to also see SSI, Medicare, Medicaid and more held unconstitutional or will they pretend there’s some important difference that let’s them maintain the health bill is unconsitutional while leaving all their favored programs untouched? This would esp. apply to people running for office.Report

          • Jason Kuznicki in reply to Boonton says:


            As you’ve said yourself, and correctly, the courts aren’t asked to give advisory rulings. They need only rule on the case at hand. It commonly happens that the full implications of a law lie dormant for years or even centuries.Report

        • Boonton in reply to Boonton says:

          @Boonton, Very true, but it is quite common for judges to ask those making an argument in front of them about the implications of the theories they advance. Advancing a theory premised on the idea that more or less all rulings since the invention of the toaster have been on the wrong track then that should be laid out very clearly rather than deployed only in ‘just this one case’ Bush.v.Gore style.Report

      • Aaron in reply to Jason Kuznicki says:

        @Jason Kuznicki, you ask, “If it is a tax, then what may I not use the taxation power to achieve?” We’re going back, presumably, to the General Welfare Clause. I again believe it would be legally noncontroversial if this were a program of government insurance along the lines of Medicare or Medicaid, paid for out of a special tax or the general fund. But an individual mandate is something different, so it’s a square peg to the General Welfare Clause’s round hole – I don’t expect that the courts will find that an individual mandate is authorized by the General Welfare Clause.Report

        • Boonton in reply to Aaron says:

          @Aaron, I’m still not seeing the general welfare beef. If you take the clause to mean ‘no favoritism’ , that does not mean that there can be no individual mandates or that all constitutional laws must benefit people exactly equally. Clearly some actions by Congress can promote the General Welfare even though the direct beneficiaries are quite specific. Having the navy fight pirates, for example, is an old idea of promoting general welfare but clearly it’s of most benefit to those engaged in shipping. Why isn’t establishing a system of universal coverage consistent, then, with general welfare?Report

          • Jason Kuznicki in reply to Boonton says:


            What I’m trying to do here is only to answer one question — Does the general welfare clause authorize the individual mandate?

            If yes, the mandate is constitutional. If no, the mandate might be justified by other clauses instead. I’m not saying that if the general welfare clause doesn’t authorize we must scrap the mandate.

            The navy fighting pirates is actually providing for the common defense, not the general welfare.

            And again, I read the clause to say that taxes and spending should benefit people generally, without favoritism. Perhaps this is, as some very reasonably argue, a political question, not a judicial one. But even then, it’s a restraint, not an authorization of power.

            I hope to follow up on this post soon with another discussing the commerce clause, where I think the argument that the clause authorizes the individual mandate may be a bit stronger. But it’s still a somewhat new idea, even there.Report

        • Boonton in reply to Aaron says:

          @Aaron, Jason,

          I taking that your view of General Welfare is about how Congress should use its powers. In other words, fighting pirates is about defense, a power. But General Welfare says Congress should defend the country to promote the General Welfare. Likewise for all the other powers it has.

          You say this means ‘no favoritism’ which is fine but what do you mean by that? If it means everyone must benefit equally then you’re setting up a pretty radical Constitutional argument that makes the worse examples of political correctness look like dust. Powers that no one questions as legitimate (such as defense) do NOT benefit everyone equally. The War of 1812, for example, severely harmed New England states who relied on trade with Great Britain, almost to the point that they were going to drop out of the war.

          So no I don’t think you can strike the bill or the mandate using the GP clause. Yes some people benefit more and others benefit less from moving towards universal coverage but that’s not sufficient ‘favoritism’ to strike it down using any reasonable reading of GP. What could be struck down via GP?

          Well I suspect the special bill congress passed to give Terry Schiavo’s supporters against her husbands decision to remove a feeding tube from her would violate GP. Here you have a law that did nothing to alter the procedures for hearing cases for people on life support, nothing for end of life law or procedures….you had a bill that created a special process for one individual person who happened to have attracted media attention. If the case wasn’t moot I suspect it would be a good candidate as an example of something that could be struck down as violating General Welfare.Report

          • Jason Kuznicki in reply to Boonton says:


            Again, you misunderstand my position. I am not looking to “strike the bill” because it is not supported by the general welfare clause.

            I am searching for somewhere in the constitution that affirmatively authorizes the individual mandate. If the general welfare clause doesn’t do it, the flowchart doesn’t say “strike down” — it says “look in other places.”

            I view the general welfare clause as a restriction on the taxing power, and I do not consider the individual mandate to be a tax. Obviously, if you believe otherwise, you will come to different conclusions. If you think the general welfare clause is a general grant of power, taxing and otherwise, then you are home free and may do whatever you wish. If you believe the individual mandate to be a tax, then perhaps we have a problem even under my narrower interpretation of the clause. But that’s not the analysis I’m doing.

            As to the Terry Schiavo bill, you’re absolutely right that it represents a violation of the principle of generality in the abstract. But given that the bill didn’t implicate the federal taxation power, it’s not germane to the general welfare clause.

            (Personally, I’d have voted against it because I consider generality a principle to be applied to all public law, by each legislator. Even if it’s not in the Constitution, it’s a pretty good rule of justice.)Report

  11. Koz says:

    There’s a point here which I think deserves a bit more emphasis than it’s gotten: the compulsory insurance mandate is about more than money. A program which is unconstitutional in itself is not necessarily made pure because it’s funding source is constitutional (and I’m hedging my bet here only because of the unpredictability of legal wars).

    And related to that (and contrary to some of the bill’s defenders here), it is the Obama health care statute which may or may not be constitutional, not a generic law which might be functionally similar.

    Ie, even if we stipulate that a hypothetical law could levy a Medicare II tax with an offsetting tax credit for those who bought sufficient health insurance, the Obama bill doesn’t do that. The Obama bill mandates that individuals purchase some service that they may or may not want, and assesses a penalty if they don’t. If we agree that the federal government can’t constitutionally mandate that individuals must purchase health insurance, it doesn’t matter what the penalty is for noncompliance.Report

    • Boonton in reply to Koz says:

      @Koz, As evidenced by the language from the bill as cited in, the ‘mandate’ appears to me to be more of a tax. Esp. notable IMO is that the bill specifically states that violations cannot be addressed thru criminal code and refers those impacted as ‘taxpayers’, not accused.

      Even more damming IMO is the fact that the penalty is based on income further supporting the idea that its a tax fully Constitutional under the 16th amendment.

      This doesn’t mean, though, that a mandate would be unconstitutional. I don’t think it would be via the commerce clause as a precondition for engaging in ‘interstate commerce’ which is almost all of modern life.Report

    • Boonton in reply to Koz says:

      @Koz, “Obama bill mandates that individuals purchase some service that they may or may not want, and assesses a penalty if they don’t. ”

      And likewise the mortgage interest deduction requires that I carry a loan I may or not want secured by property that I may or may not want to own otherwise my tax bill will be higher than a similiar person with the exact same finances.Report

      • Aaron in reply to Boonton says:

        @Boonton, if you want to avail yourself of the mortgage interest deduction (without committing tax fraud) you do need to purchase a home subject to a mortgage; but there’s no law requiring you to purchase a home, and no penalty imposed if you choose not to do so. It’s not a subtle difference.Report

        • Simon K in reply to Aaron says:

          @Aaron, I’m not sure there is a difference. By giving a deduction to those who own homes, the mortgage interest credit penalizes renters. By penalizing those with no health insurance, the mandate gives a credit to those with insurance. Its effectively exactly the same.Report

        • Boonton in reply to Aaron says:

          @Aaron, Say you and I are exactly the same. We both make the same amount of money, have the same number of kids, etc. Our only difference is that you brought a house with a mortgage, I own my house outright because I inherited it (or I rent, doesn’t matter). You pay less tax than I do.

          Not only do I pay more tax than you do, I probably pay more tax than I would if I simply wanted to insist on being uninsured under the current law.Report

        • Aaron in reply to Aaron says:

          @Aaron, and again, that’s a matter of choice, not compulsion.Report

        • Boonton in reply to Aaron says:

          @Aaron, Indeed it is, so where’s the compulsion with the health bill again?Report

        • Koz in reply to Aaron says:

          “Its effectively exactly the same.”

          Doesn’t matter. The statute is (arguendo) unconstitutional on its face as written. It might be the case (or not) that a functionally equivalent bill would be constitutional. The bill that they did pass isn’t, and ought to go down.Report

        • Simon K in reply to Aaron says:

          @Koz, I don’t really care very much whether the provision as written is constitutional. If the political will to enforce the mandate remains when the Supremes decide that, it will be re-written. If not, it was doomed anyway (and could well be regardless).

          I would say that if two functionally identical provisions are treated constitutionally as being different, something somewhere is very wrong.Report

        • Koz in reply to Aaron says:

          “If the political will to enforce the mandate remains when the Supremes decide that, it will be re-written.”

          That’s a good point, and for me at least a very important one as well. Given what we’ve seen of the political consequences of Obamacare, the propensity for “repairing” it in the face of legal challenges looks pretty dim to say the least.

          This could have very profound political effects past this cycle. The pro-Obama-bill spin was that the bill would become popular sometime reasonably soon after it passed. That ship has sailed of course, but what’s been more or less unspoken is the implicit fallback position: that after some interval Obamacare would be accepted as part of the furniture and both parties would move on. If that also turns out to be wrong, we’re looking at the possibility of the Demo party having to choose between self-extinguishing or repealing the Obama bill.

          “I would say that if two functionally identical provisions are treated constitutionally as being different, something somewhere is very wrong.”

          Uhhh, no. Congress (and the government in general) only controls the content of the laws that it passes. We shouldn’t expect that it also controls the functional development and adaptation of those laws as well. For example, there are probably a billion hypothetical bills whose functional effect is nothing, that doesn’t mean that they’re all constitutional.Report

        • Boonton in reply to Aaron says:

          @Aaron, Koz

          1. The bill is no unconstitutional ‘on its face’.

          2. Polls have consistently shown that the majority does NOT want the bill repealed. When someone says ‘the bill is unpopular’ or ‘the people want it revoked’ that person should be made to answer what exactly it is that is unpopular about the bill. If a clear, coherent answer isn’t easily available building your case on such ‘polling results’ is a very bad foundation.Report

        • Boonton in reply to Aaron says:

          @Aaron, Reading one or two of your links seems to confirm what I said. You get barely 50%, often less favoring repeal when presented with a black and white choice. That is, of course, not the real life choice which ranges from minor fixes, major fixes, repeal & replace with nothing, repeal & replace with a totally new model (single payer, some type of Republican voucher plan, etc.)

          The key here is that there is no consistent overwhelming message to the ‘but the polls show the people hate it’. We saw this before the bill passed too when Republicans had to lump two totally contradictory camps (the right wing ‘the bill does too much’ with the left wing ‘we wanted more’) to create opposition to the bill. The key is to ask why the bill is opposed? No message is clearly given or if a message is given it cuts in favor of the left. People who want to ‘do more to go after insurance companies’, for example, may tell a pollster the bill should be repealed and replaced but they aren’t going to join a GOP/Tea Party bandwagon to override a veto on repealing the law as passed. Likewise opposition based on “16,500 IRS agents with guns” or “Grandma being offed by Medicare Death Panels” is going to be tough to sustain as years go by and the lack of gun toting IRS agents and dead grannies becomes awkward even at Sarah Palin rallies.Report

  12. Boonton says: pg 131 also supports the concept that the mandate is really a tax. Not only are criminal penalties waived but even civil judgements and leins are as well, it would appear that the penalty would only be applied in the form of reducing a taxpayers refund or sending them a notice that they owe the IRS money.Report

  13. B-Rob says:

    A few thoughts:

    1) I think it is probably wrong to consider the mandate in light of ONLY one clause of the Constitution, such as “general Welfare.” You can think of it in terms of the Commerce Clause, i.e., failing to buy insurance and then receiving medical care has an impact on interstate commence. So to manage that impact, the mandate is put in place.

    2) This is not the only individual mandate in a federal statute. The Military Selective Service Act mandates that males register for the draft when they turn 18, as a means of permitting Congress to raise an army and regulate the military, per Article I, Section 8. Congress can pass “all Laws” to exercise its powers under Section 8; if a mandate is an appropriate way to raise an army, then why would a mandate be an impermissible way to manage interstate commerce?

    3) If government can mandate that a power plant operator install scrubbers (which, of course, they must buy) to alleviate the impacts of pollution on others, then how is an individual mandate to have insurance (which, of course, you must buy) to alleviate the financial impact on others, so different? In that sense, the mandate on individuals “to buy a product from another person” is not nearly as novel as some would have it seem.

    4) I will circle back again to the impact of uncompensated care, one of the problems that will be alleviated by this mandate. There can be no rational argument that uncompensated care has impacts on interstate commerce. On a less intelligent conservative site, I pointed out that, according to the Texas hospital lobbying group, hospitals in that state spent $10 billion on uncompensated care in 2006. The bloggers were so uncomfortable dealing with that aspect of the mandate solution that they simply . . . ignored it declared uncompensated care “not a big deal.”Report

    • Jason Kuznicki in reply to B-Rob says:


      1. Of course it is wrong to consider the mandate in light of only one provision in the constitution. I have repeatedly said so above, and even insisted on it. But the wrongness here is that not that the analysis is faulty — only that it is incomplete. I have never said otherwise. This is an incomplete analysis.

      To evaluate constitutionality, we do have to consider this provision — like all other provisions of the Constitution — and consider what authorization they might give.

      As I’m now getting tired of saying, the flowchart doesn’t end here with the words “strike down.” It says “keep looking.”

      2. The Constitution specifically gives Congress the power to raise an army, which makes individual mandates for national defense a lot more easily defensible. If the Constitution said “Congress shall have power to enact a national system of health insurance,” then we would not be having this debate at all. In that case, I would then have to say that the mandate was constitutional.

      I might argue that it was unwise, but that would be a different debate entirely. (As a parallel example, I think that much or possibly all of our patent and copyright system is unwise, but I can’t say it’s unconstitutional, because the power is specifically named.)

      3. If government can mandate that a power plant operator install scrubbers (which, of course, they must buy) to alleviate the impacts of pollution on others, then how is an individual mandate to have insurance (which, of course, you must buy) to alleviate the financial impact on others, so different?

      The difference is clear. I can always choose not to operate a power plant that pollutes. I could do something else with the land, I could adopt non-polluting technologies that don’t need scrubbers, or I could even let it remain idle.

      But there is nothing whatsoever I can do to avoid the individual mandate in health insurance. That makes it different.

      4. If your argument is that the individual mandate will have good social effects, then that argument is (while possibly true) irrelevant. We are talking solely about one question here — the one you originally raised, of whether the general welfare clause authorizes Congress to act in this way.Report

      • B-Rob in reply to Jason Kuznicki says:

        @Jason Kuznicki,

        3) Actually, as I understand the law, the individual mandate does not kick in until 2014 and itonly kicks in IF states do not have an alternate health insurance coverage scheme. So there is no guarantee that any individual will actually be subject to the mandate in 2014.
        In addition, if you are Amish, for example, you can avoid the insurance mandate because they have an alternate system of payment. I also easily imagine HHS establishing some rules where people do not have to buy classic health insurance, but can enroll in a bill paying pool (heard about one on NPR), i.e., everyone in the pool submits their bills, then the cost is split per capita. Almost like a mini-Lloyd’s of London.

        The “escapability” distinction is real, but not very convincing. Because everyone walking around has the right to medical care in an emergency situation regardless of ability to pay. The mandate (i.e., that you show some financial responsibility for the care that you are entitled to) in that sense is “unescapable” because the burden potential you pose to the rest of us is, likewise, unescapable.Report

        • Boonton in reply to B-Rob says:

          The “escapability” distinction is real

          Where in the Constitution is there a right to ‘escapability’?

          It seems here that the bill impacts interstate commerce. A state can create its own system which means it will fall back on its own powers to either mandate coverage locally or derive some alternative system. But the sense I’m getting here is that there’s some clause that guarantees an ‘escape’ from various laws. Where is it?

          For example, it very well may be a fact that it is impossible to live in modern day America without engaging in interstate commerce, at least in regards to health care. If that is true then even a real mandate (as opposed to this modification of the tax code) would seem to be quite Constitutional.

          Part of the objection seems to be novelity. It’s not easy to think of examples of the gov’t requiring people to purchase a ‘specific product’. Likewise it’s easy to imagine examples of hypotheticals that would be Constitutionally suspect (imagine a law requiring everyone to purchase at least 3 books from Regency Press every year). But that doesn’t mean all laws requiring the purchase of something are unconstitutional.

          We have had colonial examples of laws requiring individuals to purchase and maintain rifles and ammunition. Driving requires purchasing auto insurance in most states and while that’s not a Federal law its easy to see how it could become one since the roads and cars are very much interstate commerce even if one particular car may spend most or all of its time inside one state.Report

      • Boonton in reply to Jason Kuznicki says:

        @Jason Kuznicki, The difference is clear. I can always choose not to operate a power plant that pollutes.

        True but it’s not quite as easy as that. A mandate that plants use scrubbers not only impacts people who own power plants but people who use power from plants….which is just about everyone…even the Amish who occassionally use electric services in emergancies.

        But there is nothing whatsoever I can do to avoid the individual mandate in health insurance. That makes it different.

        Well you could simply choose not to earn any income. Hard but even those with zero income tend to use electricity indirectly so it’s not quite clear to me what is harder. And even so, it remains a tax. The Constitution permits ‘head taxes’ which you can’t legally escape no matter what the circumstance.Report