The Mandate Double-Bind

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Will

Will writes from Washington, D.C. (well, Arlington, Virginia). You can reach him at willblogcorrespondence at gmail dot com.

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  1. Avatar Aaron says:

    The penalty, from what I’ve read, is $650 for singles and up to $2250 for families. (If I were feeling a bit more motivated I would dig out the statutory provision.) To me, that doesn’t seem like a steep enough penalty to convince people to buy insurance at anything close to market rates, so absent a significant subsidy it wouldn’t be much of an incentive to me. But “in economists we trust”, I guess – they applied a mathematical model to predicts how many people will sign up for insurance to avoid the penalty. Let’s hope they’re not ‘assuming a ladder’.Report

  2. Avatar greginak says:

    I don’t think you can look at the mandate without looking at all the other provisions. Getting everybody to buy insurance is certainly part of the plan but so are the exchanges that make it easier to compare and buy insurance, ending preexisting condition clauses, payment caps and the subsidies for the many people who can’t afford to insurance. The mandate is just one part and in no way is a the entire solution.Report

  3. Avatar Koz says:

    “The fact that the Affordable Card Act includes a mandate (or the functional equivalent of a mandate) doesn’t automatically render it unconstitutional, but I don’t buy the argument that the mechanism the ACA relies on is just a minor penalty.”

    Of course not. There’s a line of argument that the penalty is really a tax (mostly advanced here by Boonton) because its functionally equivalent to a hypothetically rewritten law where the penalty provisions of the mandate are phrased as a tax. That argument is weak because, semantic questions aside there is no reason why the mandate has to be a tax any more than a penalty. It’s more credible to say it’s really penalty masquerading as a tax than a tax masquerading as a penalty.

    One thing we haven’t dwelled on as much as we should is the fact that the statutory language was phrased in this particular currently unconstitutional way is no accident or happenstance. The Administration had to pull out all the stops and cash in all its chits to get this bill through Congress. And one of the representations that the Administration made was that this bill did not increase taxes.

    And, that’s also why the unconstitutionality of ACA affects more than the bill as written, but the entire liberal agenda for health care reform in general. If it were a matter of mere bookkeeping, they could go back to Congress to pass some minor amendment or modification to keep a judge happy. But because the legislative history combines an abuse of the legislative process and the judicial process both, we can hope that the ACA and the liberal agenda both can go down in an unmourned heap.Report

    • Avatar Boonton in reply to Koz says:

      Koz

      That argument is weak because, semantic questions aside there is no reason why the mandate has to be a tax any more than a penalty. It’s more credible to say it’s really penalty masquerading as a tax than a tax masquerading as a penalty.

      Problem, what is the difference between a ‘penalty’ and a ‘tax’? Well semantically the word ‘penalty’ seems to come up quite a bit in places where most everyone thinks we are talking about taxes. For example, if you take money out of your IRA too soon you’re subject to a penalty. Where do you pay that penalty? On your tax form.

      If you really try to nail down a definition of penalty it would seem to be a type of tax that the gov’t that you have the option to reasonably avoid and the gov’t would rather you avoid but you’re perfectly free to not avoid it and opt to just pay the penalty.

      For example, a lawyer could ethically advise you to cash out your IRA early and just pay the tax penalty. But if it was illegal to cash out your IRA a lawyer couldn’t ethically advise you to do that…even if the fine was just the ‘penalty’ we have in this universe.Report

      • Avatar Koz in reply to Boonton says:

        “Requirement To Maintain Minimum Essential Coverage- An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.”

        I quoted this in an earlier thread (don’t think it was in reply to you, might have been). In any case, this comes from the statute itself.

        This tax/penalty distinction really doesn’t help you, even I thought the $695 or whatever was a tax for the sake of constitutionality (and I don’t). The tax/penalty is the consequences of the individual who doesn’t conform to this requirement.

        The point being, the requirement itself is unconstitutional: it’s not regulating interstate commerce, it’s not any other enumerated power, it’s not necessary and proper to any enumerated power.Report

        • Avatar Boonton in reply to Koz says:

          And if I don’t put solar panels on my roof I can’t claim the solar panel credit and as a result pay more in taxes than the guy who does.

          At the end of the day the fact is I’m no more ‘required’ to buy insurance than I’m ‘required’ to buy solar panels. Will’s point that a tax penalty may be raised to a point that’s so onerous that it becomes something other than a tax is well taken, at not even $1,000 a year we are nowhere near that point.Report

          • Avatar Koz in reply to Boonton says:

            Boonton, let’s start from the place where we can both read plain English. I don’t see where an analog to solar panels fits but we don’t have to worry about that anyway.

            What I have copied, in the comment you wrote in response to, is from the ACA statute itself. And there is a requirement to get some sort of insurance coverage from its plain language. If the requirement itself is unconstitutional, and for the moment at least it is, it doesn’t matter what the consequences of failing to uphold that requirement is (wrt to constitutionality).

            We could also say, like Will, that the burden is onerous enough or capricious enough so as not to functionally be a tax for the purposes of judicial review even if it were one by prima facie statute. But of course it’s not a tax by prima facie statute, therefore we don’t need to get that far before we declare the mandate, and the ACA containing it, unconstitutional.Report

            • Avatar Michael Drew in reply to Koz says:

              Different federal courts of equal rank have ruled differently on the matter, and I believe all of those rulings, but certainly the ones invalidating the mandate and/or whole law, are being appealed. I am genuinely unsure as to where that leaves the legal status of the law overall (whether it is constitutional in the jurisdictions of the vourts that have upheld the law, and not in those that have struck it down, or what have you), but I am relatively confident that it doesn’t mean that the status of the law is that it just “is unconstitutional.” But maybe I’m wrong.

              I am curious though. You say that “for the moment at least” the mandate is unconstitutional. Does that mean that your view is that the actual constitutionality of provisions of law does in fact depend on the determination of judges?Report

            • Avatar Boonton in reply to Koz says:

              What I have copied, in the comment you wrote in response to, is from the ACA statute itself. And there is a requirement to get some sort of insurance coverage from its plain language.

              You copied the requirements to not get a certain type of income tax. No doubt the bill about solar panels has a list of requirements needed to qualify for that as well.

              But of course it’s not a tax by prima facie statute, therefore we don’t need to get that far before we declare the mandate, and the ACA containing it, unconstitutional.

              Well except it looks very much like a prima facie tax as I pointed out elsewhere by citing the bill directly. It’s based on income (if your AGI is less than 8% of the cost of insurance you don’t have to pay). It’s collected by the IRS. It’s reported on your tax form. The IRS is specifically prohibited from enforcing it with any criminal or law enforcement powers. In other words it’s a tax.Report

              • Avatar Koz in reply to Boonton says:

                “You copied the requirements to not get a certain type of income tax. “

                How? That citation is one sentence long, and completely clear on its own terms. Applicable individuals are required to have minimum essential coverage for each month after 2013. End of.

                This is what is alleged to be unconstitutional, for lack of enumerated powers.Report

              • Avatar Boonton in reply to Koz says:

                Applicable individuals are those who have a certain level of income or greater. It’s an income tax.Report

              • Avatar Koz in reply to Boonton says:

                “Applicable individuals are those who have a certain level of income or greater.”

                Ok. And there is no enumerated power in the Constitution to allow the federal government to make applicable individuals purchase essential minimum coverage.

                It’s one sentence, twenty words or whatever. Look hard, and ask yourself what that one particular sentence requires applicable individuals to do.Report

              • Avatar Boonton in reply to Koz says:

                Yea it’s called the income tax.

                Now feel free to argue a Constitutional theory that the power to levy taxes based on income should only apply to income and no other considerations. Keep in mind this novel theory should apply accross the board (all deductions, penalties variations should only apply to income….no deductions for solar panels, child care, medical bills, donations to the Salvation Army etc.).

                It’s one sentence, twenty words or whatever. Look hard, and ask yourself what that one particular sentence requires applicable individuals to do.

                Why are we supposed to look at only one sentence? The bill is over 900 pages long, the sentence must be read in context of the entire bill. The sentence is independent only if Congress passed that one sentence as its own unique bill.Report

              • Avatar Koz in reply to Koz says:

                “Yea it’s called the income tax.

                Now feel free to argue a Constitutional theory that the power to levy taxes based on income should only apply to income and no other considerations. Keep in mind this novel theory should apply accross the board (all deductions, penalties variations should only apply to income….no deductions for solar panels, child care, medical bills, donations to the Salvation Army etc.).”

                I don’t see where you’re trying to go with this. We’re having enough difficulties trying to talk apples-to-apples as it is.

                “Why are we supposed to look at only one sentence? The bill is over 900 pages long, the sentence must be read in context of the entire bill. “

                Exactly. Now, being as clear as you can, and without resorting to handwaving, what is there about the context of that sentence in the rest of the bill that supports anything you and I have disputed on this thread?

                You will see, if you look at the context of that sentence in the bill, that if an applicable individual doesn’t satisfy the mandate, certain consequences ensue. Are we okay so far?Report

              • Avatar Boonton in reply to Koz says:

                Again applicable individuals are not required to do anything. To be required to do something means you must do it. There’s no options, no choices, you must do it. In the context of that section of the bill, however, the person is required to do something to avoid an income tax of about $750 or whatnot.

                This is why you refuse to address the question of whether or not a lawyer could ethically advise a client to not get coverage and just pay the penalty. You won’t address it becaue it demolishes your argument. If the bill required people to get coverage then any lawyer who advised his client to not would be breaking his code of ethics. He would be subject to being disbarred. But no lawyer, no CPA, no professional who must stake his license and career on staying within the law is afraid of advising their clients to not get coverage and just pay the penalty. Since no such requirement exists in the law, such a client would be no different than a client who didn’t want to donate to charity. The answer would be simply “don’t donate, your income tax will be higher because of that”.

                Your argument can only be saved by arguing that the power to have an income tax requires that the only provisions involve things relating to income and only income.Report

              • Avatar Koz in reply to Koz says:

                “To be required to do something means you must do it. There’s no options, no choices, you must do it.”

                Good. Let’s stay with this a minute. Now, I don’t believe that you believe that. In fact there’s very little if anything that we are required to do in the sense that you describe it, obey the law of gravity maybe.

                Given your description above, what do you believe yourself required to do? Or do you want to revise that?Report

              • Avatar Boonton in reply to Koz says:

                Actually I do believe that. Required does not mean ‘mandated by the laws of physics’…..if it did, though, what are you complaining about? By that standard the law can’t require anyone to buy insurance unless it somehow altered the laws of nature to make it physically impossible not to have insurance in the manner that it’s physically impossible to travel faster than light. If you want to push that as the meaning of required then I win the argument by default. I’ll be a gentleman, though, and won’t take the easy kill shot….

                Required means in the context of law that you must do something. I am required to submit a tax return (provided I meet various criteria). I am required not to murder anyone. I am required to keep my speed below 50mph on certain roads. I am required not to knowingly write bad checks. I am required to park my car in a legal parking space.

                These things the law requires of me in that if I am to be a law abiding citizen I must follow them. Now some people take that very seriously and are always law abiding citizens, others do not care about it at all and most are somewhere in between. When you break the law you are no longer a law abiding citizen. A different question is what happens when you break the law. The law has various punishments prescribed ranging from nothing to very harsh.

                Now the important thing here is:

                1. Just because there may be no punishment, it doesn’t mean its ‘ok’ to break the law. The town may not say you must collect the election signs you put up 24 hours after the election. The town may not have bothered to set in place a fine for failing to do that. That doesn’t mean it’s legal to leave the signs up. It’s not. If you don’t collect the signs you littered the town with then you are breaking the law. Maybe you don’t care, so don’t, it still matters from a legal POV. Hence my question about the lawyer. As the lawyer’s obligated to not advise people to break the law, he cannot advise the campaign to save money by not bothering to collect the signs after election day.

                2. Fees != Punishment. As I said, you are obligated to follow the law. That means that when a law has a set of punishments for breaking it, that’s not a menu of ‘fees’ or ‘prices’. You aren’t free to drive faster than 50mph on a certain highway, period! If the fine for speeding is $50 that doesn’t mean you can ‘buy’ the right to speed by just paying the fine when you’re caught. Some things, though, are treated as fees. “No Swimming, $50 fine” and “Town Beach, membership fee $50” are not the same thing even though an economics minded person who cares only about cost may see them as the same. The first you are required not to swim there, the second you may swim there at a cost of $50.

                It makes sense then to note first that the way we have used the word ‘penalty’ up to now in the tax code has mostly been in the manner not of requirements but options. There’s tax penalty for taking money out of your 401K early, but you aren’t required by law to keep your money locked in your 401K until you’re old. If you must have an objective definition of penalty it seems that a penalty is:

                A. A tax.
                B. A tax that’s optional in the sense that the law gives you a practical way to avoid it if you want (I say that because while technically you can say you can quite working and earn no income to avoid the income tax, it’s not practical therefore the entire income tax itself isn’t really a ‘penalty’).
                C. Often the behavior the incurrs the penalty is something the gov’t is NOT making illegal but would rather you not do (i.e. taking money out of your 401K early, if the gov’t really wanted to say you were required not to do that it could just require banks and financial firms to never disburse 401K’s early)

                If this is a requirement in the legal sense you take it to mean it’s a rather odd ‘punishment’. For one thing you are only ‘required’ if your income is at a certain level. Most requirements in the law are not contingent on your income, for example. But if it’s a requirement to avoid a tax penalty, more specifically a requirement to avoid an income tax penalty (power clearly given to Congress…to tax income) then the ‘oddness’ disappears and it fit’s reality like a well worn glove. You’re argument doesn’t fit so nicely. We would require a whole bunch of linguistic tricks to explain why numerous deductions, credits, and penalities for lots of other things in the tax code would also not be struck down OR we would have to adopt a whole new way of reading the Constitution’s power to levy income taxes….a way of reading that not even it’s author’s seemed to hold. So if the glove don’t fit, you must aquit!Report

              • Avatar Koz in reply to Koz says:

                Ok, got it. First of all, let me commend you for having written this. It’s especially important when our points of view clash as much as ours do, that we are able to go back and forth as apples-to-apples. And so finally, you’ve done that.

                Now, we both agree that just because the law requires something doesn’t mean that any other alternative is metaphysically impossible. But you believe, I gather, that the requirements of the law are absolutely binding in an ethical sense.

                Unfortunately that doesn’t quite work to the extent you think it does, as many examples illustrate. For example, laws can be in various situations impossible to abide by, or contradict themselves in a way that following one law violates another. There is also the matter of civil torts. Committing a tort against another person does not make one a criminal, it exposes the tortfeasor to liability. Nonetheless it’s not at all clear that for satisfying those liabilities he is ethically in clear. Certainly many or most victims would rather he never committed the tort in the first place.

                Finally, the law itself can be vague as to the implied ethical duty. Can a lawyer advise a client to keep the library book past its due date and pay the fine the library charges. Frankly I don’t know (or care).

                Most importantly, your theory places the ethical content of the law at the discretion of the lawgiver, which is a fundamental mistake. The legislator doesn’t live our lives, we do. Therefore can’t, and shouldn’t, subcontract the determination of our ethical responsibilities to him.

                But, it’s important to realize that if a law’s ethical imputation to us might be vague, that’s not the case with the text of this particular bill. First, and most importantly, that sentence I’ve quoted talks about things that applicable individuals “shall….ensure…..” this or that, which you’ve been slow to get your head around. Like you said, the law can ethically bind us (or attempt to) without having to specify any consequences at all, and this bill clearly does here. Think about it for a sec.

                There’s also the “penalty” which is what you’ve killed a trillion pixels trying to talk around. But, we’re not done there.

                There’s also, the “requirement” that the individual “fails to meet”, if he doesn’t have “minimum essential coverage.” These are simply not the words people use to convey that the reader has a choice. Of course not. These are plain English words to imply or induce compulsion in the reader.

                In fact, you can look at the statute and nowhere in it is there any language which states or implies that the decision to obey the mandate is intended to be at the individual’s discretion.Report

              • Avatar Boonton in reply to Koz says:

                I would say that torts are a bit more complicated because sometimes you have two different sides that honestly disagree over how to read a contract or over the facts of a case. Maybe I’m not paying you because I think you failed ot fulfill your side of the bargain, you think you did, we go to court to decide. Other times, though, I’m not paying because I don’t want to or I don’t have the money. We go to court so you can get a judgement. Legally I’m in the wrong which is why you win your judgement.

                Ethics here are maybe too strong. It’s perfectly ethical to ignore unethical laws IMO. So maybe imagine the law as a little voice in your head that says “You shouldn’t do that”. When you come to a stop sign and no one is around the voice says “you shouldn’t run it”. Sometimes, though, the voice expresses an option. Take out of your 401K early? The voice says “I’d rather you didn’t”. This conversation happens between you and a voice that represents the state. Torts are a bit different in that they are you versus other people or things where the courts decide the case. The state doesn’t care if you stiff your brother-in-law on the $1200 he loaned you. The state simply provides a forum where this dispute can be heard between you two. But fundamentally it doesn’t care in the legal sense. That’s why your brother-in-law has to do all the work in filing suit against you etc.

                BTW, the case of the overdue library books is pretty vague. On one hand you can view it as a ‘rental fee’ that just calls itself a ‘fine’… or on the other hand it really is a rule. You are supposed to get the book back in two weeks. The $0.10 a day isn’t an optional fee but a punishment for violating that rule. This isn’t totally irrelevant as some towns issue warrants for people who screw the library over big time.

                Anyway, in the bill all the language you cite are about what is required to avoid a particular income tax. This is evidenced by:

                1. A ‘penalty’ in the tax code. As pointed out penalties in the tax code are almost always about areas where you have a choice. There’s nothing in the bill to indicate this is any different.

                1.1 The fact that the ‘requirement’ is income contingent also indicates that this is a tax. Laws of the type you are talking about usually apply universally, not so contingently. Granted laws often have exceptions (no one may drive over 50mph unless they are driving an emergency vehicle in an emergency), but they are often directly related to the laws purpose (provide for safer streets). A ‘punishment’ that hits you with a sliding ‘penalty’ paid to the state based on your income is generally called an ‘income tax’.

                2. The lack of enforcement beyond the tax code. Granted a state can pass a law without passing any real punishment, but since a criminal act is a serious thing I’d expect some real evidence that is what passed in this bill. If we were getting a lawyer debarred for advising a client ot skip insurance and pay the penalty he would mount a pretty serious defense on those grounds. Since the bill also specifically states that the IRS may NOT use the gov’ts criminal justice tools against those who don’t pay or don’t get insurance this would be cited as evidence that Congress was not passing a law against not having insurance coverage but creating an income tax penalty for not doing so.Report

        • Avatar Michael Drew in reply to Koz says:

          The claim is that it is a necessary and proper part of a law that does regulate interstate commerce. That argument is of a form that is supported by current Supreme Court doctrine. Simple enough. You can of course dissent from this doctrine in principle, and/or say that the facts of this law don’t meet the criteria for that argument to be valid in its case, which you do. Fair enough. But it doesn’t mean much if you do so by just saying it’s the case. To convince people who disagree with you you have to present a killer argument of some kind for it, or have your view win out at the Supreme Court. And that’s kind of what’s been going on around here for a number of months now. It doesn’t advance the debate much just to say that it isn’t regulation of commerce, necessary and proper for that, etc., just because it isn’t. Others say it is those things.Report

          • Mr. Drew [and you & I have always been able to agree and disagree like gentlemen]: The problem is indeed that many, perhaps most Americans think this bill sucks. This is the political, not the principle, the sentiment and not the formal argument.

            There have indeed been many things of doubtful constitutionality that the American consensus has let slide, for instance, much of the New Deal! [If you’re in a google mood, see Congressman Davy Crockett on his vote to provide federal relief for the victims of a local disaster.]

            Still, Jason Kuznicki’s argument on First Principles—and it is indeed a “slippery slope” argument, so derided by some as somehow invalid—is key here. The last-ditch counterargument is always, well, we’ve already made a joke of the Constitution, so one more joke won’t hurt.

            My old friend Dr. James Hanley PhD made an incisive defense of proper “slippery slope” arguments infra:

            “Once we agree that the Commerce Clause allows Congress to require you to buy a product, there is no logic that prevents it from requiring you to buy some other product.

            And slippery slope arguments are entirely valid when we are discussing constitutional interpretation, because the interpretation of the law works by analogy. B is very similar to A, so what justifies A also justifies B. C is very similar to B, so what justifies B, which is justified by what justifies A, also justifies C. Unless there is a pretty clear disjuncture at which the analogy no longer applies, there’s nothing to really stop movement along that slope.”

            So yes, Michael, we do go to the sophistic-legal mattresses only when our favorite Gore is being oxxed, and let the rest pass. But if there’s one thing I’ve grown to value the libertarians for, it’s as honest brokers in the war for clarity. I’ll add here that I was appalled when Jason Kuznicki was attacked for “pre-emptively” anticipating objections to his his position: that’s good writing, intellectual honesty and the classic form of argument employed by luminaries like Aquinas.

            I was also appalled when Kuznicki’s very humanity was questioned just for making a cogent argument against Santa Clausism.

            But I admit to inured to the appalling these days, as I’m sure Jason has, or I would have spoken up sooner in his defense.Report

            • Avatar Michael Drew in reply to tom van dyke says:

              I’m sorry, Mr. van dyke, but I’m not clear what point of mine you are addressing here, so I don’t know how to respond, or whether I’m being asked to. I didn’t object to any of Jason’s pre-emptive arguments. They’re perfectly fair (which is not to say that I capitulate to all of them). I haven’t strongly objected to slippery-slope arguments as a category anywhere here that I recall. Do I recall incorrectly? Can I help you in some other way?Report

              • No, Mr. Drew, you cannot help me in any other way, thank you. Our business is concluded here and thank you for your time. I was attempting to lend support to your observation there’s a political dimension vitiating the formal argument of unconstitutionality. The rest was a by-the-by in support of Jason Kuznicki’s effort to get at the First Principles.

                Sorry to have bothered you. Rock on.Report

              • Avatar Michael Drew in reply to tom van dyke says:

                No bother, Mr. van dyke. I just wasn’t sure what it was you were responding to of mine.

                I wasn’t actually trying to make a point about the politics of fights about constitutionality right there; I really was attempting to confine myself to an oversimple precis of the constitutional argumentation we are likely to get from government lawyers, but I absolutely think that what you mention are some of the most important points that can be made about such things – that they are intertwined and inseparable, etc. – so I am glad to know that we both respond to such ideas.

                I also happen to think (not that you asked), that when we have political objections to political actions by our political leaders, it is better to lodge them as political, moral, and policy arguments, rather than, or at least before, jumping in a knee-jerk way into constitutionalist argumentation. We should save those objections for when we are really sure of our convictions on the points in question, lest all our political disputes become potentially fundamental constitutionalist ones that threaten to cleave us to the heart of our polity. But that view might even in the abstract be a bit overwrought, and i don’t mean to stifle peoples’ genuine constitutional objections to actions of our government in any way. And I am not saying that in this current debate anyone has done badly by this preference of mine; after all this bill is now law, and there was plenty of political debate about it before it was enacted. Now is, I suppose, the right and proper time for any constitutional objections to it to be raised. But I do sometimes wonder if everyone here has made this consideration as consciously as I have. I know of one person whose opinion I respect who has.

                Rock on.Report

          • Avatar Koz in reply to Michael Drew says:

            That’s a slightly different subject. My point is that the mandate itself is unconstitutional. Therefore it doesn’t make any difference whether the consequences for failing the mandate is a tax or a penalty.

            Specifically, the nature of the mandate comes from the statute itself very clearly. Those who want to put it in a different box to make their legal argument better are ignoring the plain text of the statute.

            As to your argument, that the mandate is constitutional as a regulation of interstate commerce. That’s an important argument, and there’s substantial hopes for liberals that higher courts will see it that way.

            On the other hand, it’s almost true that this is supported by current Supreme Court doctrine, but not quite. There are a number of precedents which can be extended to cover ACA, but none that can be directly applied to it. Read Judge Hudson, Judge Vinson, or Volokh.Report

            • Avatar Michael Drew in reply to Koz says:

              I see. Well, actually I don’t quite see. You ended the comment I responded to making a summary that was a direct denial that this provision is a necessary and proper feature of a law that regulated interstate commerce. That didn’t seem to me to be addressing the semantic equivalence Boonton has been making re penalty or tax, but rather the bottom-line Commerce Clause and Necessary and Proper arguments for the law, however we might characterize it. But if you were addressing the semantic matter there, then I misunderstood.

              And you are right: the claim is that the Commerce Clause plus Necessary and Proper does extend so far as to allow this law. I think that claim will be supported by the government with an assertion (accompanied by argument and evidence) that not only do those constitutional provisions extend far enough by their direct meaning to allow Congress to pass this law, but that previous SCOTUS decisions which produced precedent that now stands at the Court, relating to those provisions did or very nearly did already find that to be the case. Obviously, everyone and their uncle is entitled to disagree with that contention. And I could be wrong that that is what they will argue.Report

    • Avatar stillwater in reply to Koz says:

      And one of the representations that the Administration made was that this bill did not increase taxes.

      The claim was not that the bill didn’t increase taxes, but that it was deficit neutral. Taxes increase in at least two ways: employers health insurance costs above a stipulated level will be subject to tax (the so-called cadillac tax) and tax on individuals to prevent free-rider-type problems arising from people receiving benefits for which they haven’t paid (the tax imposed on the uninsured).Report

  4. Avatar E.C. Gach says:

    “there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.”

    Is there any functional difference between a tax and a penalty that would make the above remark interesting or insightful?Report

    • Avatar Jason Kuznicki in reply to E.C. Gach says:

      Taxes are in theory at least subject to a generality requirement.

      Penalties are for specific infractions.

      Now, several people on the other thread have asked about the EITC and the mortgage tax credit. These are fair questions, and good ones. I’ll try to answer here.

      A tax proceeds from the assumption that, although your income and property truly are your own, certain problems of collective action require you to surrender a portion of it. This is unfortunate, because after all you’ve done nothing wrong. But the government has to run anyway, and we’re very sorry, but we need the money to pay for it.

      The reason that the individual mandate is a penalty rather than a tax is because no supporter of the bill can honestly say that they feel going voluntarily uninsured is “doing nothing wrong.” Supporters simply don’t believe this. There has been a clear moral opprobrium here, all throughout the legislative history. It’ll be fun to see this demonstrated in court, if the issue comes up.

      Far from being free riders — as those who evade taxes are, when it comes to national defense or roads — people who evade the insurance mandate are being antisocial according to a particular ethos. It’s entirely unclear, however, that they are reaping a benefit therefrom. And the ethos is one I reject and indeed find preposterous. But even if this were a reasonable ethos, the price of violating it would be a penalty, not a tax.

      As to tax incentives, I’ve been quite consistent in opposing them. I think they should indeed be done away with. Anyone who knows anything about my preferred tax policy should know this. But even tax incentives, improper though they are, don’t mean that non-qualifiers are penalized. Even a few minutes of thought reveals why this is so.

      When you face a tax — as opposed to failing to qualify for an incentive — you must pay more than the status quo. If you fail to qualify for an incentive, nothing has changed for you.

      Very simple. Very, very simple.Report

      • The reason that the individual mandate is a penalty rather than a tax is because no supporter of the bill can honestly say that they feel going voluntarily uninsured is “doing nothing wrong.” Supporters simply don’t believe this. There has been a clear moral opprobrium here, all throughout the legislative history. It’ll be fun to see this demonstrated in court, if the issue comes up.

        This is a very interesting concept. You’re basically asserting that judges are supposed to measure the ‘feelings’ of the bills supporters instead of looking at the actual bill itself. Cute. Well suppose the penalty/tax was $1 per year but the bills supporters spouted rhetorical fire in debating the bill, calling people who don’t want to buy insurance baby killers, nazis, the scum of the earth. Suppose also, in bizzaro universe Alpha2, the same bill passed but its supporters were calm, rational and fully understanding of thsoe who don’t want to buy insurance but calmly made the penalty/tax $100,000 per person per year.

        Now I suppose you’re going to tell us that in the first Universe the courts should strike down the law but in the second universe the law isn’t an effective mandate because of all the ‘nice rhetoric’ during its passage.Report

        • Avatar Koz in reply to Boonton says:

          “You’re basically asserting that judges are supposed to measure the ‘feelings’ of the bills supporters instead of looking at the actual bill itself. Cute.”

          What are you talking about. It’s been explained more than once (through citations to the statute, judges’ rulings, etc.) that’s what’s unconstitutional here is the bill itself, not what it might be functionally equivalent to if this or that were rephrased, which seems to be what you’d prefer.Report

          • Avatar Boonton in reply to Koz says:

            What I am talking about is Jason’s assertion that it matters Constitutionally whether or not the bills supporters think a person who choose not to get insurance is “doing something wrong”.

            What the bill is ‘functionally equiliviant to’ is important because a big part of the criticism here is quite frankly based on mixing things up. We are reading “individual mandate”, which is just a short hand bullet point pundits use when talking about the bill as if the bill actually has an individual mandate. It doesn’t A mandate is not paying slightly more income taxes. A mandate is just that, a mandate and the bill simply doesn’ thave one.

            At the end then you’re reduced to trying to argue that no the bill doesn’ t have a mandate but it’s still unconstitutional because the phrasing just isn’t right for your taste. If they only called it a ‘tax’ rather than a penalty or a fine or a reversable negative tax credit or whatnot that would magically make the exact same policy Constitutional but this one isn’t because the magic words weren’t used.Report

            • Avatar Koz in reply to Boonton says:

              Jason’s reading more into this than he has to. I think he’s right but it wouldn’t make any difference if he weren’t. The statute governs behavior and under some circumstances raises revenue as well. Jason is correct to argue that the it’s the intent of the D’s who passed the bill to regulate behavior in that way but it doesn’t matter if it wasn’t because the text of the bill plainly does.

              ““Requirement To Maintain Minimum Essential Coverage- An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.”

              Please acknowledge that you’ve read this so I don’t have to cut and paste it any more (wrt you at least).

              If do don’t think the paragraph above constitutes an individual mandate, please explain why and we can go from there.Report

              • Avatar Boonton in reply to Koz says:

                Why isn’t it a mandate? Quite easy. Because the bill then goes on to specify a mere income tax penalty for not carrying insurance.

                Address the lawyer question. Ethically a lawyer cannot advise you to break the law, even if the penalty for breaking a particular law is very light (i.e. like a $50 fine for passing a bad check). Can a lawyer advise a client who doesn’t want health insurance to just pay the penalty on their 1040 tax form? I see nothing that says such a lawyer would be violating his professional norms if he did so.Report

              • Avatar Koz in reply to Boonton says:

                Ok, why are we worrying about what the bill goes on then to do? The quotation, one sentence long and not referring to any other part of the bill, clearly establishes a mandate itself. If the mandate, by the nature of its subject matter is unconstitutional, the penalties for violating it don’t change matters.

                Again, let’s not take this rhetorically. Why do I have to care what other things are in the bill if the mandate is unconstitutional?

                As far as your lawyer thing goes, I don’t know what a lawyer’s obligations are wrt legal advice regarding the mandate. Frankly, I don’t think it matters very much.Report

              • Avatar Michael Drew in reply to Koz says:

                “Why do I have to care what other things are in the bill if the mandate is unconstitutional?”

                Because of the Necessary and Proper clause. What else could the Necessary and Proper clause mean other than that some things that absolutely on their own wouldn’t be allowed must be if they are necessary and proper for the government to meaningfully exercise a power that is enumerated? (That is not a purely rhetorical question. I realize there are possible answers to it, but I have never been persuaded by them. Maybe yours will finally do it.)Report

              • Avatar Koz in reply to Michael Drew says:

                That’s a good question in the abstract, but it wasn’t Boonton’s point. Boonton’s argument bugs me because there’s no reason why he or anybody else should persevere in a line of thought that is so clearly falsifiable, kinda like the cartoon about that guy who was wrong on the internet.

                As to your question, the Volokh boys have been working that angle pretty hard, especially here:

                http://volokh.com/2010/10/06/the-necessary-and-proper-clause-and-the-individual-mandate/

                and a new one today:

                http://volokh.com/2011/02/04/health-laws-of-every-description-obamacare-and-original-meaning/Report

              • Avatar Boonton in reply to Michael Drew says:

                “Boonton’s argument bugs me because there’s no reason why he or anybody else should persevere in a line of thought that is so clearly falsifiable, kinda like the cartoon about that guy who was wrong on the internet.”

                It would be so much easier then if you just falsify it. But you can’t. Address the question, if the bill bans a person from opting not to get any coverage can a lawyer ethically advise such a client to just pay the penalty? Yes or no?Report

              • Avatar Koz in reply to Michael Drew says:

                “It would be so much easier then if you just falsify it.”

                I already did, more than once.

                “Address the question, if the bill bans a person from opting not to get any coverage can a lawyer ethically advise such a client to just pay the penalty? Yes or no?”

                I don’t know. I don’t care. I don’t think it makes a difference.Report

          • Avatar tom van dyke in reply to Koz says:

            The problem is the bill itself, and that they passed it within an inch of legality. And with barely a moment to spare before its window closed.

            A new, “clean” bill could have been written and likely passed by the House—properly, legally, constitutionally—but could not have got back through the Senate after Scott Brown was sworn into Ted Kennedy’s seat.

            So the House leadership [Pelosi] was forced to approve the Senate bill, which was designed only as a work-in-progress to be “reconciled” later with the House version and re-voted on and approved in final form by both houses.

            The problem is the bill itself. Had there been a consensus for it—all the Democrats and a big enough chunk of GOPs—the constitutional problems we’re discussing could have been solved.

            But the bill as passed and signed by the president sucks, because that Senate version was never intended to be the actual law: it was spaghetti thrown at the wall. And now, there is no consensus for it, not even a majority in Congress nor a consensus of the American people.

            So, the Supreme Court may force us to eat the spaghetti that still manages to stick to the wall, but forgive me if I don’t like it, want it, or consider their command fair, just, or constitutional.

            I’m a republican, not a democrat: consensus, not majoritarianism. If there’s a consensus that we eat spaghetti for the good of all, as a good citizen, I reckon I will.

            I just prefer mine on a plate, and properly paid for, rather than licking it off the wall because Anthony Kennedy says I must.

            Did I mention this bill sucks donkeys, and was never intended even by those who drafted it that it become the law of the land? Just to be clear here.Report

            • Avatar Michael Drew in reply to tom van dyke says:

              “forgive me if I don’t like it, want it, or consider their command fair, just, or constitutional.”

              Who has disparaged your right to have these feelings so much that you feel the need to ask (however sarcastically) for forgiveness? Who here said there is anything wrong with you just not liking this law?Report

      • This comment is better than everything else you wrote on the other thread. I will chew on it and see if the center is a delicious chocolaty confection.Report

    • Avatar E.C. Gach in reply to E.C. Gach says:

      If you use an absolute standard, then no, nothing has changed, but we know that absolutes don’t exist in society, at least with regard to taxes.

      What is the normal tax rate? Is letting a tax-cut expire returning things to the normal level? Or is it a tax increase?

      If everyone else get’s a tax cut except me, you are saying that I have not been penalized, everyone else has just been given a bonus?

      I’m not sure it’s as simple or as obvious as you say. And a few more minutes of thought might reveal that some of your distinctions lack a strong basis.

      “A tax proceeds from the assumption that, although your income and property truly are your own, certain problems of collective action require you to surrender a portion of it. This is unfortunate, because after all you’ve done nothing wrong.”

      According to what school of thought?Report

      • Avatar Jason Kuznicki in reply to E.C. Gach says:

        If you use an absolute standard, then no, nothing has changed, but we know that absolutes don’t exist in society, at least with regard to taxes.

        I’m not sure I understand what this means. I don’t know what you’re getting at.

        What is the normal tax rate? Is letting a tax-cut expire returning things to the normal level? Or is it a tax increase?

        I hadn’t thought this a difficult question. The status quo is the status quo. A change is a change.

        If everyone else get’s a tax cut except me, you are saying that I have not been penalized, everyone else has just been given a bonus?

        If this were to happen, the tax in question would violate the general welfare clause. It’s not being collected with a view toward the general welfare, but rather with a view toward punishing you. Invidious distinctions like this are not allowed.

        “A tax proceeds from the assumption that, although your income and property truly are your own, certain problems of collective action require you to surrender a portion of it. This is unfortunate, because after all you’ve done nothing wrong.”

        According to what school of thought?

        I’d thought this was the mainstream view in America, and that it only needed a clear restatement because of recent obfuscactions. Suppose I’d said “Taxes are the price we pay for civilization”? Because I certainly could have.

        Anyway, if you’re interested, I can direct you to the “taxation is theft” school of libertarianism, which I find interesting but impractical. You can argue their side if you like, and they will welcome you with open arms.

        Alternatively, I can direct you to the “property is theft” school of anarcho/syndicalism and/or communism. By their lights, what’s yours isn’t yours at all.Report

        • Avatar E.C. Gach in reply to Jason Kuznicki says:

          I’ll add that what I’m looking for is some more elaborate/fundamental defense of distinguishing the coercive property of taxes from the coercive property of penalties, as well as the distinguishing between action/inaction.

          If you could, give the argument as you see it rather than relying on precedent of popular understanding, as they both might be in error.Report

  5. Avatar E.C. Gach says:

    If this were to happen, the tax in question would violate the general welfare clause. It’s not being collected with a view toward the general welfare, but rather with a view toward punishing you. Invidious distinctions like this are not allowed.

    What if I owned 99.9% of the economy, and thus was the only meaningfully taxable entity? I’m not quite sure it would violate the general welfare clause. But even if it would, as I am not a constitutional scholar or legal expert, all I’m confused about is the tax/penalty question.

    Every tax is a penalty, every tax expenditure is a bonus. How would you unravel the penalizing/incentivizing aspect of taxes from taxes. It’s seems an inevitable consequence.Report

    • Avatar Jason Kuznicki in reply to E.C. Gach says:

      I’m not sure what to think about your hypothetical. It’s not a situation that seems likely to happen anytime soon.

      But if every tax is a penalty, I just have to ask: Why does our government hate income? Because that’s the biggest penalty, like, ever.

      (Does anyone believe that our government hates income? Even I don’t believe that…)Report

      • Logically it would make more sense to say every tax is not a penalty but every penalty is a tax. Early withdrawl of your IRA incurs a tax panalty. Does the gov’t want people to break open their retirement funds? No. But people have the freedom to do so at the cost of a penalty. If gov’t really didn’t want people to tap their retirement funds it could *command* that such funds could not be tapped.

        From a liberty perspective penalties are quite different from commands. Commands are laws you technically cannot break without being a criminal. Penalties are things you have the option to do if you wish.Report

        • Avatar E.C. Gach in reply to Boonton says:

          Interesting. I would argue just the opposite: that every tax is a penalty, but not every penalty is in the form of a tax.Report

          • Avatar Boonton in reply to E.C. Gach says:

            Since I don’t believe these are legal terms with any ‘official’ definition we are free to just use whatever definition seems to work the best.

            What I find interesting is that most of the times I can think of the world’penalty’ coming up previously it seems in relation to taxes and in relation to a certain type of tax where you get some degree of freedom to decide whether or not you’ll incur the ‘penalty’.

            Compare a penalty for ‘filing late’ or ‘withdrawing your IRA’ with paying more in income tax because you got a raise last year. Technically you could decline a raise but practically the increase in your taxes due to your income going up is automatic, out of your control except in the most blunt manner (quitting your job). ‘Filing late’ or the other things appear to me to offer you a greater amount of choice.

            Second, and I’m not sure its essential, the gov’t seems like it would rather you not take the option that incurs a penalty. They’d rather you file on time, not drain your retirement fund etc. But if you do you incur more tax than someone who opted not. You are not really under ‘command’ to avoid doing what the penalty proscribes. Will’s point is granted that in theory you could make a penalty so bad that it starts looking more like a command, or even a criminal punishment.Report

        • Avatar tom van dyke in reply to Boonton says:

          Mr. Boonton, your objection is fair; the reply to your example is that the penalty for early withdrawal from your IRA actually is a tax. You’re paying a portion of the tax you’d have normally owed on the money had it not been sheltered in an IRA. It’s not a punitive penalty as in the health care act.Report

          • Avatar Boonton in reply to tom van dyke says:

            Actually I believe the withdrawal from your IRA adds to your income in the current year and then there’s a 10% penalty on top of that so it is punitive.Report

            • Avatar tom van dyke in reply to Boonton says:

              Good point, Mr. Boonton, but it seems like a tax surcharge to me, to insure timely compliance. Such things are no more illegal than the penalty for filing late, Congress legislating such penalties surely “necessary and proper,” or few would comply.

              You are constitutionally compelled to comply with the 16th Amendment; there is no such constitutional compulsion to buy health insurance.Report

    • Avatar E.C. Gach in reply to E.C. Gach says:

      It is what it is, whether we actually feel that way or not. Whether a certain tax’s intended effect is to penalized something or not (it is intended in the instance of say, sin taxes, but not intended, though still a consequence of income taxes), it remains coercive for better or worse. This is why some people support a VAT I would think.Report

  6. Avatar Boonton says:

    If it really is only a minor penalty, healthy people will pay the fine and forgo insurance. At the very least, this should severely compromise the ACA’s effectiveness.

    Notice that you’re speculating here, if the law is ineffective that is a matter to be judged by a legislature, not a judge. Some time ago Congress passed a ‘luxury tax’ on expensive items like yachts (I think it happened in Reagan’s 2nd term). The idea was a diaster as people simply stopped buying the high priced goods subject to the high tax and the law didn’t raise any real revenue and ended up causing job losses in the industries that made the goods. In other words it was ineffective, but the resolution to that came when a future congress repealed the law based on that experience.

    The rationale behind forcing everyone to purchase insurance, as I understand it, is that if healthy people are allowed opt-out, they’ll flee insurance companies en masse, leaving only sick people on the rolls and collapsing the industry.

    Well there’s two extremes here:

    1. Everyone gets insurance, since many healthy people will be in the insurance pool insurance rates will be as low as possible. The burden the gov’t has of subsidizing those who can’t afford insurance is less, more employers will cover employees with insurance (since rates are lower) etc which is good because few people are paying the penalty since almost everyone is covered privately or via Medicare/Medicaid or their employers.

    2. Lots of people don’t get insurance. Insurance rates are higher because covered people are sicker. But then the gov’t is getting more revenue in from those opting to pay the penalty. This makes the higher burden of subsidizing the pools easier.

    Reality IMO will likely be something in between and no doubt the law will be tweaked in the future depending upon many factors that simply can’t be predicted. For example, Medicare D ended up costing less than expected because of good and bad reasons (good; more seniors using drugs ended up reducing hospital expenses for the other parts of Medicare….grandma not skimping on her diabetes medication means fewer trips to the ER with grandma in a diabetic coma…..bad; drug companies didn’t come out with as many new drugs since as before so more and more drugs went generic which meant lower drug prices. That’s good for existing drug users but if you think about it for a moment the world would be better if we had more amazing drug breakthroughs, not fewer)

    I read it as a feature, not a bug, that the law leaves the system open to continue evolving. Employer based insurance, for example, may continue as the American norm…..or it may weaken and the new norm might become individual Americans buying insurance directly. Libertarian types tend to think the latter is the best ultimate solution but IMO the bill has a conservative virtue of not locking in any particular school of thought regarding what America’s health care system will ultimately look like in, say, 50 years.

    If, on the other hand, the tax penalty is structured in such a way that makes it prohibitively expensive for healthy people to opt out, it’s effectively a mandate, regardless of your preferred terminology.

    OK here is where langugage screws up the argument. We agree the tax code can make some decisions very expensive but that in itself doesn’t make those decisions a ‘mandate’. So this opens up the question of whether the tax for not carrying insurance is so high that it effectively becomes a mandate thereby open to the Constitutional question of whether Congress can mandate citizens to buy insurance (another debate in itself). Well here’s a few issues:

    1. You have to ask is the penalty so high that it would effectively be impossible to pay for people subject to it? For example a law that said anyone who has more than two kids will have an income tax penalty of $500,000 per year would probably be deemed as a ‘two child mandate’ rather than just a tax because most people wouldn’t be able to pay it. But $500 a year probably wouldn’t.

    2. You have to ask is the difference in taxes between a hypothetical person who pays the penalty and one who doesn’t greater than other examples in the tax code that we don’t consider ‘effective mandates’. For example consider the tax savings seen by someone who has another kid, has mortgage interest, or puts solar panels on their homes. Is that tax savings a lot less than the tax savings by the guy who buys himself insurance versus the guy who doesn’t?

    Here your argument falls apart. The penalty in the so-called mandate is $750 per year. If that’s an ‘effective mandate’ then the tax code is also ‘effectively mandating’ you to have babies, buy solar panels, go into mortgage debt, make charitable contributions etc. Many people have tax bills that will swing by $750 or even more depending on those decisions. In fact when the bill first passed some analysts were concerned that the problem was the ‘mandate’ wasn’t enough of a mandate….opting to pay $750 per year is a lot cheaper than buying a $3000 insurance policy. If you want to void this bill by Judge you have to assert that a many parts of the tax code are likewise unconsitutional….or you’re just advocating judicial activism.Report

  7. Avatar Herb says:

    My guess is that if we weren’t subjected to all these weak arguments about why the PPACA is unconstitutional, we wouldn’t be hearing all this hair-splitting over “taxes” versus “penalties.”Report

  8. Avatar E.C. Gach says:

    In many people’s eyes, Strong Suggestion = Mandate.Report

  9. Avatar Sam M says:

    I guess I just don’t understand the nomencalture here. Why are we asking whether it’s a tax OR a penalty? Isn’t it a penalty delivered in the form of a tax? That is, isn’t it both?

    The government claims that it doesn’t want people to smoke cigarettes. One of the tools it uses to keep people from doing so is to rap them on the knuckles with a tax. Rap hard enough and fewer people will smoke. At the same time, this is a good way to generate revenue. So the government also gauges its tax on how much money it brings in. And then it spends the money.

    So it seems to me that if the question is, “Is it a tax or a penalty,” the answer is “yes.” Or more precisely, the tax IS the penalty.

    Either way, it’s the same thing unless you make a major distinction in how much you pay. To risk another analogy, let’s say my municipality charges $10 for a building permit and imposes a $10 fine for building without a permit. I suspect nobody would seek a permit, because you MIGHT get away with not getting the permit. And if you get caught, you still only pay $10. But if the charge for getting caught is far MORE than the cost of the permit, say $1000, that’s a pretty substantial “penalty.”

    In the case of the health care mandate, it seems like the “charge” is actually quite a bit CHEAPER than the cost of insurance. So what do we call that? And what do we expect will happen? If the cost of a permit is $10, and the penlaty for building without one is $5… who would ever buy the permit?Report

    • Avatar Jaybird in reply to Sam M says:

      “Moral Hazard”.

      I suspect that the same people who weren’t getting health care before (see, for example, Deamonte Driver) will continue to not get health care and the people who were getting health care before will continue to get health care.

      The only difference is that the people who won’t be getting health care in the future will finally have coverage for the health care they won’t be getting.

      So they’ve got that going for them.Report

      • Avatar Pat Cahalan in reply to Jaybird says:

        > The only difference is that the people who won’t be
        > getting health care in the future will finally have
        > coverage for the health care they won’t be getting.

        Yeah, this is kind of the way I’m looking at it at the moment. Root principles debate aside, this is what I see through the (admittedly foggy) goggles of near-futurism.Report

    • Avatar Boonton in reply to Sam M says:

      The nomencalture is actually pretty simple once you consider defining penalty as a particular type of tax.Report

    • Avatar E.C. Gach in reply to Sam M says:

      For those who want to get rid of the fine, you’d also have to allow hospitals/doctors to refuse treatment if you don’t have adequate coverage, as in, hold on a sec with that blood transfusion, seems like this guy won’t have any means of payment.

      Of course we could turn hospitals into pseudo pawn shops and have the uninsured trade collateral for life saving procedures.Report

      • Avatar DensityDuck in reply to E.C. Gach says:

        So if I pay the fine then I can get health care when I need it? Whether I actually buy insurance or not?

        Congratulations, you have defined the cost of health care. It is $650 a year. The market will now adjust the level of healthcare services provided to the point where providers can stay in business on $650 per patient per year.Report

        • Avatar E.C. Gach in reply to DensityDuck says:

          I’m saying that if hospitals do what they have been doing, there will be free loaders. If my arm gets slashed open, the doctor will fix it, whether I can pay or not…and yet, people still buy health insurance.

          My point is only that part of the effect of the “strong suggestion” (read: mandate), is not just to lead healthy people to drink from the insurance pool, but to also make up for uninsured who will cost the health care system anyway.Report

        • Avatar Michael Drew in reply to DensityDuck says:

          You can but you will still be responsible for all the bills; nothing would have changed for you. So no, the cost of health coverage will not be defined to $650 a year. You don’t get insurance for that. It’s a penalty for not having insurance.Report

          • Avatar Jaybird in reply to Michael Drew says:

            Out of curiosity, what’s the annual income of the folks most likely to not have insurance?

            Does it have significant overlap with the set of folks most likely to not file taxes at all?Report

            • Avatar Michael Drew in reply to Jaybird says:

              People in the latter category will be eligible for Medicaid enrollment, so long as the states and Congress don’t work too hard to defund that requirement (though that would just turn it into an unfunded mandate). The biggest thing I wish were in this bill was a serious effort at simplifying or even automatizing enrollment for people who will qualify for Medicaid.

              No one who is poor enough not to have to file a tax return will be responsible for the penalty (or very very few unless I am greatly misinformed); they’ll just be responsible for enrolling in Medicaid. That’s IF the law is fully & comprehensively implemented and funded — a HUGE if.Report

              • Avatar Jaybird in reply to Michael Drew says:

                I’m wondering about overlap.

                If there is significant overlap between the two groups, I’d wonder what problem Congress’s Affordable Care Act actually fixed, if any.

                Because, at the time, it seemed to me to be a giveaway to the insurance company lobbyists who wrote the damn thing.

                I really don’t see that I have reason to change my opinion yet.Report

              • Avatar Boonton in reply to Jaybird says:

                IMO the problem that’s been ‘fixed’ is lack of universal reasonable access to health coverage. Unlike more simplistic proposals from the left or right (such as single payer, Medicare for all, from the left or some type of health insurance voucher system from the right), it did not achieve universal coverage since it will be possible to remain uncovered either out of desire or economic circumstances.

                I think a rough way of summarizing how it does that is to say that whereever you happen to be now, you’re nudged to whatever is the easiest way to get you covered. If you’re working at a big or med. sized company, it’s easier to have employer provided insurance. If you’re very low income, it’s easier to get Medicaid. If you’re neither then you’re nudged to buy insurance from the market where insurance providers won’t filter you out by using ‘pre-existing conditions’ against you. If you’re old, well nothing really changes Medicare is the default.

                Because it provides multiple solutions to different people, the bill is a lot more complicated than a simplistic solution like single-payer, pay or play, or a right wing answer like ‘insurance vouchers’. But that also makes it less radical (if you have coverage now you can more or less remain as you are) and leaves the future more open ended to evolve rather than trying to force everything down a predetermined path.Report

              • Avatar Michael Drew in reply to Jaybird says:

                I’m not entirely sure what the concern is exactly.

                You’re absolutely not wrong that the law as structured is a forced transfer to the ins. cos. That was their price for allowing the end of coverage decisions based on PEC. They had the clout to make nothing at all happen if that proce was not met. Outside of the Medicaid expansion, what was gotten for that price was that people will be allowed to purchase insurance that covers the maladies they already have.

                Something obviously (well, probably, though as Boonton and I have surmised, we wonder if it actually would have been the case) had to compensate the ins. cos. for that big hit they’d take, otherwise they would simply go out of biz immediately or raise rates sky high. A you can see from various commenters here, a mandate was (probably) not the only way to fill that gap (limited enrollment times being another option), but it is the one they chose (or was demanded as the price by the ins. cos, I’m frankly not sure which). Or rather, what is in the bill is what they chose (or capitulated to). I guess we are having a debate here now about whether it is actually a mandate (command, diktat, etc.), and, actually, it seems quite legitimately in question at this point, at least to me.

                So in some sense, it had to either be a giveaway or else the system would blow up, unless you could hit the bullseye and exactly fill the hole. What we got for it was that lots of people who couldn’t buy insurance for the things they were sick with will now be able to, and others who are sick but have insurance can do things in their lives that would have previously resulted in losing that particular coverage (like shopping for better insurance or changing jobs), without losing it.

                Obviously, no one can decide for you whether you think this was a good tradeoff. But my belief is that no on with any sense thought of the mandate(*) as anything other than an unfortunately (perhaps) necessary concession for a reform that accomplished the above. But some might nevertheless see it as a worthwhile tradeoff.Report

              • Avatar Michael Drew in reply to Michael Drew says:

                Expansion and standardization of Medicaid enrollment is THE biggest policy change this law provides ar none (and a totally legit reason for state governments to hate this law, by the way). This law mandates that anyone below a certain percentage of poverty (I think it’s about 100-and-some-%, less than 200%, of poverty) be eligible for Medicaid coverage, regardless of (most) other facts about you (i.e. whether you have kids or not). The previous status quo was that states set all sorts of various requirements for eligibility; common ones being that a person have minor dependents or I think even be a single parent in some cases (but I’n not sure about that latter), and obviously many varying income eligibility levels.Report

            • Avatar Boonton in reply to Jaybird says:

              From my fast reading of the bill, the penalty does not apply if the cost of coverage is more than 8% of your AGI. So say the cost of coverage is $2,000, your AGI would have to be $25,000 or more in order to be concerened about the penalty. Def. in the range of having to file a tax return.Report

          • Avatar Sam M in reply to Michael Drew says:

            “You can but you will still be responsible for all the bills”

            No you won’t. Just don’t pay. Hospitals see this all the time. They call it “bad debt.” There’s nothing they can do about it, and they hardly ever collect a dime of it. Go to your local hospital. Even a small one. They will have millions of it on the books. And we don’t have debtors prisons.

            I know a guy who went to a hospital, sans insurance, and had major surgery plus a 30-day stay. It ran into hundreds of thousands of dollars. He never paid a dime of it.Report

            • Avatar Michael Drew in reply to Sam M says:

              Just because you don’t pay a debt doesn’t mean it’s not actually owed by you. If you owe a debt for a service rendered, that is being responsible for the purchase of the service. You may not discharge that responsibility honorably, but it is upon you nevertheless. Hurts your credit, causes anxiety, makes you less employable. All in all, not a desirable situation compared to the alternative. But a responsibility borne nonetheless.Report

        • Avatar steve in reply to DensityDuck says:

          Except that most people do want health insurance, they just want other things more. With some motivation, they can be tipped towards buying. If you look at Massachusetts, people are signing up for the most part rather than pay the lower cost fine.

          The amount of the penalty is also not set in stone. It can be adjusted if it is found to be too low or too high.

          In most models, you can achieve the same ends with limited enrollment periods plus/minus penalties for enrolling at an older age. Of course, that would require the political will to enforce itr.

          SteevReport

        • Avatar Boonton in reply to DensityDuck says:

          So if I pay the fine then I can get health care when I need it? Whether I actually buy insurance or not?

          I believe it would basically be along the lines of what would happen pre-bill if you didn’t have health care but suddenly needed it (like had a heart attack on the street). You’d be liable for the bill from the hospital or doctors who took care of you as an emergency. Going forward if you needed follow up care you’d either have to pay directly OOP for it or you’d have to get coverage.Report

  10. Avatar Jaybird says:

    A Law Professor (from Harvard!) argues that the government *CAN* make you buy broccoli, for instance.

    blogs.forbes.com/aroy/2011/02/02/harvard-laws-fried-a-broccoli-mandate-is-constitutional/

    Sen. Durbin: The point raised by Senator Lee – the “buy your vegetables, eat your vegetables” point? I’d like you ask to comment on that because that is the one I’m hearing most often. By people who are saying “Well, if the government can require me to buy health insurance, can it require me to have a membership in a gym, or eat vegetables?” We’ve heard from Professor Dellinger on that point, would you like to comment?

    Prof. Fried: Yes. We hear that quite a lot. It was put by Judge Vinson, and I think it was put by Professor Barnett in terms of eating your vegetables, and for reasons I set out in my testimony, that would be a violation of the 5th and the 14th Amendment, to force you to eat something. But to force you to pay for something? I don’t see why not. It may not be a good idea, but I don’t see why it’s unconstitutional.Report

  11. Before trumpeting Charles Fried as a Reaganite, we should note he endorsed Obama in 2008.

    http://blogs.wsj.com/law/2008/10/24/harvard-law-prof-reagan-sg-gives-obama-his-vote/

    I did enjoy my google search on Fried. The top hits of course came from

    HuffPo
    Think Progress
    truth-out.org
    TPM [DC]
    Democratic Underground

    I did not read them to see whether they acknowledged Fried’s endorsement of Obama. I’m curious, but not that curious.Report

    • Avatar Mike Schilling in reply to tom van dyke says:

      Who’s to say Reagan wouldn’t have endorsed Obama? He took the presidency seriously and I doubt he could have stomached Sarah Palin being that close to it..Report

      • Reagan endorsing Obama, Mr. Schilling? First time I’ve seen that interesting thought expressed. Pls do make your case, albeit tangential to noting Fried’s endorsement of Obama in 2008 and putting his status as Reagan’s SG into better perspective. Most of the supporters of the bill and its constitutionality on this point have upset the chessboard anyway, contenting themselves with counterattacks on conservatives and returning us to their regularly scheduled program.Report

        • Avatar Mike Schilling in reply to tom van dyke says:

          Why not, considering the cesspool the Republican party has become? Neither Reagan nor Goldwater was anti-gay or militaristic enough for today’s GOP. And if you think Reagan was a deficit hawk, you’re ignoring all available evidence.

          Also, look at the recent collection of GOP vice presidential candidates:

          Spiro Agnew
          Nelson Rockefeller
          George Bush
          Dan Quayle
          Jack Kemp
          Dick Cheney
          Sarah Palin

          Most of them don’t have the slightest qualifications to be president, but were chosen for their appeal to red-meat Republicans. George Bush, who is not a movement conservative, no matter how hard he worked at trying to appear to be one, stands out among the exceptions. St. Reagan of all things right-wing,m and the guy who was actually president for eight years don’t have all that much in common.Report

  12. Avatar BSK says:

    Didn’t I say all this way back when?!?!? That the mandate was pandering to the insurance companies because of the perception (or knowledge) that the system would collapse if generally healthy people took a calculated risk and opted out, the system would collapse. It is built on the backs of healthy young people who pay the same premiums as middle-aged fat smokers but never visit the doctor. Now, if young people or other healthy folks are making the decision freely to buy insurance, no problem. But if they are mandated (either through the coupling of insurance with employment, where most employers require that the worker take insurance in lieu of additional salary, or by the government), the system is assured to function.

    As much as Republicans want to decry the mandate (and there are plenty of good reasons to do so), I find it ironic that it is ultimately in place because of caving to the pressures of big business and big insurance. Snarky, I know… but true, eh?Report

    • Avatar Pat Cahalan in reply to BSK says:

      > It is built on the backs of healthy young people
      > who pay the same premiums as middle-aged
      > fat smokers but never visit the doctor

      I’ve said this elsewhere, I’ll point it out again.

      If you are going to have health insurance coverage for your entire life, and your premiums do not change (much), you’re not subsidizing a fat middle aged smoker as a young healthy person with insurance.

      You’re subsidizing *yourself*, 25 years from now. You’ll still be in the pool. You’ll be getting the benefits you’ve been paying for your whole life.

      The only people who will get “screwed” by this are the people who die young. Yes, that’s true, you will get screwed by this if you die young. But the risk that you get screwed by this from dying young is actually pretty minor, and it’s population-wide anyway.Report

      • Put another way, I find this creation of “young person who never visits the doctor” to be completely mythical. Either the “young” is misleading, or the “never” is.

        I know people who “never went to the doctor”… in their twenties. They all go to the doctor now. (warning <– anecdotal evidence in the last two sentences).Report

      • Avatar RTod in reply to Pat Cahalan says:

        Well said Pat. I was just rolling up my sleeves to start typing and saw that you had beat me to the punch.Report

      • Avatar ThatPirateGuy in reply to Pat Cahalan says:

        Indeed having the health insurance while young will help you if you do come close to dying young.Report

      • Avatar BSK in reply to Pat Cahalan says:

        Well, I do think that health insurance premiums shouldn’t necessarily be flat. Maybe that’s just me. But I think it would be prudent for insurance companies to take into account mutable characteristics of the applicant. I realize that there would be much debate about what is mutable and what is immutable, but certainly the option to avoid even the most basic preventative would be mutable and therefore potentially deserving of an increased in the premiums when older.Report

        • Avatar Pat Cahalan in reply to BSK says:

          > Well, I do think that health insurance premiums
          > shouldn’t necessarily be flat.

          I think that too, in principle, but in practice I find that to be problematic, especially with this bill, should it stand.

          Particularly if we’re going to require that everyone carry health insurance. We’re then making it “okay” for a health insurance company to rather significantly curtail your individual freedoms under a fiscal penalty that you essentially can’t avoid.

          If we’re going to accept that it’s okay for everyone to demand that you get insurance, we can’t also then grant the insurance company the power to dictate your rate based upon characteristics. It’s not cricket.

          This is the big disadvantage with the mandate: to avoid a serious loss of liberty, we have to remove market forces that could otherwise be used to cut back on seriously expensive behavior, like smoking or drinking or off-road biking or every X-games sport or even being a kid and playing on playground climbing toys.Report

  13. Avatar Boonton says:

    Actually everything is on the backs of ‘healthy young people’ if you think about it. Barring the creation of robot slaves, that’s the way it’s worked from the beginning of time and will work till the end.Report

  14. Avatar Michael Drew says:

    I think I light have just italicized like half of this entire thread. Sorry bout that, folks.Report

  15. Avatar Boonton says:

    I think the confusion here can be linked to several causes:

    1. The policy in question is described by pundits and analysts as an ‘individual mandate’. This is understandable due to the fact the idea behind the policy is to get people to buy insurance plans (or get covered elsewhere). This confuses the idea behind the policy with the policy itself which isn’t a mandate but an incentive. The tax code is littered with such incentives and nowhere else do we talk about mandates to have kids, buy solar panels, prepay at least 90% of our tax liability thru withholding etc. This may even be a disservice in the policy discussion since calling it a mandate glosses over the real issue that many people might consider it cheaper to just pay the penalty instead of getting covered thereby leaving the adverse selection problem in place. This doesn’t get much discussion because when you go around calling it a mandate you think that it means everyone has to get coverage, but they don’t.

    1.1. In that spirit, note that we do have mandates with minimal penalties. You have to register for selective service or report for jury duties but you’re probably not going to end up in jail for failing to do either unless you make a dick of yourself in refusing….but the fact is the law does not allow you to avoid these things on the grounds of “I don’t wanna”.

    1.1.1 There is a ‘command’ type policy option that’s always built into any Constitution and that’s the command that you must pay your taxes. Likewise the only real command in this bill is that you pay your taxes, and the tax here is an income tax which is fully permitted in the Constitution.

    1.1.2 Finally the arguements against this being a valid tax fall apart. It does raise revenue which goes to the gov’t. There’s a long history of gov’t passing taxes on things it wants to see (people earning more income thereby paying more income tax) as well as things it would rather not see (people smoking and paying tobacco taxes, people draining their retirement funds to live it up thereb incurring early withdrawal penalties). Unlike some taxes, this tax is in direct relation to the bill’s purpose. If lots of people don’t buy insurance, the cost of insurance will go up along with the gov’ts need to subsidize coverage for those who do want to buy insurance. This tax offsets that cost. If lots of people do buy coverage there’s less need for subsidy and therefore less need for this tax. This is the same logic that applies to making charitable donations deductible. Presumably people who are donating a lot are reducing the need for gov’t to do certain things like provide welfare for the poor and therefore get less taxes than those who don’t donate.

    2. The bill itself leads to confusion because its introduction to the ‘mandate’ cites the right to regulate interstate commerce. This leads people off into a tangent of whether or not Congress can use its ICC powers to mandate the purchase of a product as opposed to simply prohibiting certain products (like pot, drugs the FDA rejects, unsafe cars etc.) or regulating how products are sold etc. This would be relevant if Congress had actually passed a mandate along the lines of, say, selective service, but it quite simply didn’t. I happen to think the ICC would permit some regulation like this and a ‘slipperly slope’ to a hypothetical law requiring people to buy broccoli isn’t very moving. In terms of liberty what is the difference between forcing the purchase of broccoli and banning it? The former is less common in our history but not unprecedented (see the militia bill that required people to buy guns and ammo) and if you totalled up all the ways gov’t violates individual liberty you’d find many more examples of the latter. Ask yourself what would be a greater violation of liberty, a law that required every person to buy one book a year (a book of their choosing with its only requirement being that its at least 100 pages long) or a law that banned everyone buying a particular book?

    2.1 The extensions of the slipperly slope likewise fail because they tend to run up against other Constitutonal prohibitions. A law that everyone must purchase a Lear Jet, for example, could probably end up being challenged on the grounds that its a punishment for all but the richest people without due process, perhaps even a forced taking. Another problem with hypothetical slipperly slopes is Equal Protection. Usually Equal Protection is used to attack laws that have an element of racial or gender discrimination. But the doctrine also says that any law must be somehow related to a legitimate gov’t purpose. The doctrine of scrutiny only says that courts will not question the decisions of a legislature to use certain means to accomplish legitimate goals unless the means employ some type of suspect category, in which case laws have to be justified under some level of strict scrutiny. A hypothetical law requiring everyone to, say, buy a red t-shirt, would likewise fail because it couldn’t establish any legitimate gov’t purpose or interest behind it. There’s no problem with using hypotheticals to question a law but the whole Constitution must be keep in context. There’s a lot of outrageous laws that would be ok if the Constitution had nothing but the Interstate Commerce Clause. But the Founders would never had agreed to such a Constitution.Report

  16. Avatar Kyle says:

    I’m feeling a bit old-fashioned today, particularly because I just finished reading Truman (which is fantastic and I recommend it), but there’s something about this whole thing that bothers me and I wonder if anyone else feels the same way.

    Namely, that the President of the United States and his political coterie would – to get the bill through Congress – insist that the mandate is not a tax and then turn around and argue for its legality on precisely that proposition. Furthermore, that when – as Jason and others have pointed out – that slight of hand is brought up, the same group insists on how proper and necessary the whole deal was with a sense of incredulousness that anyone would even raise the point.

    It’s one thing to disagree, to have differences over policy and personality, to be a partisan. It’s quite another, I think, to without any shame at all, treat the American people as though they were dumb, lie to them, then unapologetically insist nothing was wrong because the ends justify the means.

    This goes for the President Bush and the Iraq War too.

    Whether one supports the war or the mandate or this party or that person, taking a step back from all of that, the constitutionality of the mandate is a matter of discussion but so is too, I think, the manner in which it came to be.Report

    • Avatar gregiank in reply to Kyle says:

      I think its easy to be displeased by the entire nature of the HCR debate and feel many things were said that don’t reflect well on all parties. My belief is Obama would have much rather had a wonktastic debate about all sorts of boring details with charts and numbers and that crap, but that isn’t how we make our policies.Report

    • Avatar Boonton in reply to Kyle says:

      “Namely, that the President of the United States and his political coterie would – to get the bill through Congress – insist that the mandate is not a tax and then turn around and argue for its legality on precisely that proposition.”

      This may be why we are in such a rhetorical bind right now. The ‘mandate’ as it exists in the bill is an income tax, not a real mandate….yet the administration is arguing that a real mandate is perfectly ok in terms of the interstate c’mmerce clause. Why?

      Well here’s the President way back then arguing that it wasn’t a tax:

      http://blogs.abcnews.com/george/2009/09/obama-mandate-is-not-a-tax.html

      Note several things:

      1. His argument isn’t really a direct “this is not a tax” but a kind of indirect “it’s a tax but when you put it together with these other good things it’s really not”. Technically if you have A that raises taxes $100 and B that lowers taxes $100 you still have to say A is a tax incrase….but rhetorically you don’t say that unless you want to get jumped on politically and ‘soundbitten’ to death.

      2. No one really buys it. George Stephanopoulos, supposedly a representative of the liberal MSM, seems pretty much on top of the idea that it was a tax in the interview and presses the issue as hard as he can.

      If even George Stephanopoulos saw it as a tax then the people who are really bending reality are those who now trying to assert it’s a mandate. But if courts are to pay attention to legislative intent….well you have everyone back then saying it was a tax. Even the President was saying it was a tax by choosing to answer the question in such a convoluted manner. If he didn’t he could have been more straight forward, “No it’s not a tax, its a fine for breaking the law! No different than when the FDA imposes a fine on a company that sold tainted milk!”Report

  17. Avatar North says:

    Just to stir the pot a little I’m curious.

    The Bush Minor proposition for social security was to switch to private accounts invested in some presorted list of approved stock funds. This is to say that the GOP proposed that people not only be forced to buy Wall Street investment products but that their wages be garnished at a set amount to force this to happen. Now to my amateur eye this seems even more draconian and controlling than ‘Obamacare” and its penalty if you don’t adhere to the mandate. So I’m wondering; would this be equally or even more unconstitutional? If not why not? I know the lefties and the Dems all howled and sank the proposition but I don’t recall any libertarians declaring that it was unconstitutional.Report

    • Avatar Jaybird in reply to North says:

      I was under the impression that it was an “option” rather than a mandate.

      Since the money was already being taken from you, putting it in this bullshit pile or that bullshit pile wasn’t really making unconstitutional waves.

      For my part, I saw it as a transparent giveaway to the damned boomers who wanted to keep their 401ks flush at the expense of everybody else for another decade or so.Report

    • Avatar Kyle in reply to North says:

      Two thoughts besides yay for pot stirring and obvious caveat I’m not an expert on PPACA so if I’m wrong, i’d be grateful for someone to say so.

      First, even in that system there’s still a right to exit. If you leave the workforce you no longer have to pay SS taxes and no longer have to pay into an evil, confiscatory system. In fact, your eligibility for such a system (whether it was optional or not) would depend on whether you took the affirmative action of engaging in commercial activity, earning an income. Which, this is a point hammered over and over again by those fearful of future abuses of this newly discovered ability of the government in ppaca to penalize not engaging in commercial activity. In fact the only right to exit you have from the insurance mandate is to die. Authors note: suicide is illegal.

      Second thought, if one were to view social security like a pension fund then in that case there’s a difference that I think matters less in terms on constitutionality but is important nonetheless. That the Bush II proposal would end the federal government’s monopoly as a recipient of investment funds rather than expressly forcing one to invest in only private investment products or a highly concentrated market of only private options. One could still keep the old way or invest in other public institutions.

      Just a couple of thoughts but I was under the same impression as Jay that it was an option.Report

      • Avatar Michael Drew in reply to Kyle says:

        There are financial hardship and religious objection exemptions to the mandate that I have read about, but not in a place where I could cite chapter and verse from the law about them.

        I believe the hardship exemption would have to be some kind of a temporary hardship, because (if the law is comprehensively implemented and funded) every person in every state with incomes below 133% of poverty will be eligible for free qualifying coverage via Medicaid that will be enough to get the mandate monkey off your back.

        I would concede that is not a proper exit, but it does reduce the requirement to maintain coverage to essentially an administrative task. It is still a requirement you are subject to, though. So you can drop out of the workforce and other commercial activity (such as having money in a bank earning interest) and not be forced to purchase health insurance. But it’s true you still have the obligation to maintain coverage. But the means for meeting the obligation will be provided.

        For the religious exemptions, you have to have a “sincere religious objection.”

        I wouldn’t expect you to view these as complete exits fully available to all (but that would contradict the very idea of a mandate in any case), but they seem relevant nonetheless, and you asked to be given information if it was known.Report

        • Avatar Kyle in reply to Michael Drew says:

          It’s helpful. Though in real numbers the 133% of poverty for a family of four should be just under 30K, so it strikes me as probable that the penalty (or insurance) would be a meaningful burden on families just above it.

          I didn’t know/realize there was a “conscientious observer” component to the law, though it makes sense in hindsight.Report

          • Avatar Michael Drew in reply to Kyle says:

            There is a whole schedule of “affordability subsidies” that goes into effect along with the mandate for people who make between 1.33X and 4X poverty. And, of course, it’s all scheduled differently for families versus individuals. But essentially, they’ve defined “affordability” in the law, defined as a cap on what you have to pay to an insurance company as a percentage of your total income, with the top share being 9.5% for those making ~399% of poverty. Above 4Xpoverty, I think you’re on your own, and there will like be a BIG jump there, I’d imagineReport

  18. Avatar E.C. Gach says:

    Strictly speaking, most states do not have a law against suicide.

    My analogy:

    If you choose to partake in work for income, you will be taxed.

    If you choose to partake in the purchase of goods, you will often be subject to a sales tax.

    If you choose to be a live American citizen, you will have to be insured or pay a tax.Report

      • Avatar Kyle in reply to Kyle says:

        I meant this to be amusing but to preempt a thought of glibness, I do honestly feel that choices of action cannot be compared to choosing to live.

        For that matter I also disagree with the implication that emigration is a viable alternative to reasonable restrictions on governmental power.

        One could easily say if you want health insurance, choose to live as a British/Dutch/Swedish citizen but the flaws in such a proposal are both numerous and obvious.Report

        • Avatar E.C. Gach in reply to Kyle says:

          “I do honestly feel that choices of action cannot be compared to choosing to live. ”

          Why is that? What fundamental difference do you see?Report

        • Avatar Michael Drew in reply to Kyle says:

          I agree that literal exit doesn’t meet the criteria for the kind of escape from obligation you are looking for, given that the question is what kinds of obligations citizens can impose upon each other by the state mechanism within a polity. But then you have to acknowledge that your use of “exit” in this context is something of a metaphorical one standing in for reasonableness, since emigration is in a literal sense a perfectly viable option for people dissatisfied with the burdens of residency in a given country. At some point, after all, there will be positive obligations conferred on people as citizens or legal residents of any nation-state. Or do you deny that, saying that other than this health insurance mandate, a determined person could live out a life in these United States without being burdened by any positive obligation by the state that didn’t arise out of some action of his own?Report

          • Avatar Michael Drew in reply to Michael Drew says:

            I should have used the word compulsion rather than obligation, since external compulsion really is the issue here. An obligation is a real moral duty.Report

          • Avatar Kyle in reply to Michael Drew says:

            You’re right w/r/t my use of exit in this context.

            However, I disagree that emigration is a perfectly viable option for people dissatisfied with the political burdens of their home. Certainly the United States is no East Berlin but emigration is by no means easy. It can be expensive and burdensome process with no guarantee of success or betterment, a barrier that is quite high and for people of limited means prohibitively high. For that matter, I’ve yet to see anyone suggest that those dissatisfied protesters in Egypt simply move to a country where Mubarak is not president. Or that Afghanis who don’t like the Taliban should move to another -stan. Though the PPACA is nothing like repression, I think when it comes to emigration it is a better tool for individuals in particular circumstances than to be seen as a way for a large number of people to avoid government policy they don’t like.

            Broadly, governments can of course create positive burdens. A head or poll tax is provisioned for in the Constitution as a power of Congress, with specific restrictions. The draft is constitutional. Personally, I think there are some positive obligations that we should discuss and probably adopt as a polity. Compulsory education falls into that category at least somewhat.

            However, these examples come with clear limitations on government power, involve some choice, consensus among the citizenry, and a general support, if not recognition, of the public and personal good that comes of positive obligations of the sort we have and have used. Notably not a head tax.

            Positive obligations incurred as a result of positive choices one makes seem significantly fairer that positive obligations incurred to prevent collective action problems/irresponsibility.Report

            • Avatar Michael Drew in reply to Kyle says:

              I think you greatly underrate the value and viability of emigration as a means of avoiding government abuse, or simply disliked government. I’m not claiming it is sufficient to dispense with considerations of liberty when polities consider what to compel members who are interested. And since I’m not claiming that, it’s not really relevant that emigration is a costly course of action. it certainly is that. But it remains a real, viable and relevant one that thousands of Americans and millions of people worldwide undertake yearly for various reasons, including escape of onerous government burdens or oppression. The protesters remain in Egypt because they are engaged with, committed to, and in interested in changing or even in some cases becoming part of the government of, their country. How many Egyptians have emigrated from Egypt in the last three decades precisely to escape Mubarak’s oppression?

              I’m not quite sure which view you are taking wrt to imposing positive obligations. What I mean by positive obligation is that you must do something by virtue of being a citizen, no matter what else you do or don’t do. And I’m not clear on the implications of the distinctions you make here:

              >However, these examples come with clear limitations >on government power, involve some choice, consensus >among the citizenry, and a general support, if not >recognition, of the public and personal good that >comes of positive obligations of the sort we have and >have used. Notably not a head tax.

              Is this a contrast of Selective Service to the individual mandate? I can’t think of what else it could be. (What other totally action-independent obligations are conferred on us? If you know of any, I’d actually really like to know.)

              So, the draft versus the mandate:

              o Selective service does not involve choice any more than the mandate, with its religious opt-out.

              o The individual health insurance mandate (IHIM) has a clear limit and purpose for what it does, even if you think its constitutional justification ends an existing limit on the ability of Congress to impose other other obligations. It seems clearly limited in that way to me, anyway. (My impression is that we are discussing the specific liberty implications of the IHIM as a specific policy, not those of other obligations that arguably could be, but haven’t been, imposed as a result of the constitutional effects of the upholding of this law.)

              o So the distinction you appear to drawing is that there is not consensus recognition in the polity of the need for or benefit of the IHIM; hence as a positive (i.e. not action-triggered) obligation, (which as a category you see as particularly liberty-infringing kind of obligation/compulsion for the state to impose) you see it as less fair than Selective Service registration and potential military conscription, which you see as having that kind of consensus.

              Guess what? Other than not being sure how great the consensus around selective service actually is at this point, I actually pretty much buy this, if by “fair” just mean, “There is a liberty impact here that people have every right not to be well-disposed to.”

              On the other hand, our duly elected representatives drafted, passed, and signed this legislation into law according to due constitutional procedures. So there is that to contend with.Report

          • Avatar Michael Drew in reply to Michael Drew says:

            You’re right, “perfectly viable” was too strong. And I obviously, I didn’t mean to claim that as a universal fact. Obviously, there are places where it isn’t remotely viable, as North Korea. But in the majority of countries, emigration is a viable option as a general matter, as evidenced by the thousands who undertake it, so it follows that it is a viable option for escaping onerous government burdens, among other things (unless the government places a particularly onerous restriction on emigration in particular). Whether the costs balance out is, of course, always a question in considering courses of action.

            The possibility of emigration cannot be said to be irrelevant to how one assesses one’s overall liberty in all spheres. On the other hand, it is definitionally irrelevant in a discussion inside a polity of what kinds of burdens people who intend to remain there will place on each other via the means of a state. That was my only point.Report

    • Avatar Boonton in reply to E.C. Gach says:

      Problem you have with:

      If you choose to be a live American citizen, you will have to be insured or pay a tax.

      You do not pay the tax if your income is such that the cost of coverage would be 8% or more. In other words, this would fall only on your first category (“If you choose to partake in work for income, you will be taxed”) reinforcing the position that it’s really an income tax.Report

  19. Avatar E.C. Gach says:

    While I understand that is ridiculous on political grounds, I’m not sure there is any inherent difference between what takes place in either of those three “choices.”Report

  20. Avatar greginak says:

    Posuer alert- A couple of D’s have have proposed ways of letting people opt out so they are not crushed under the fascistic weight of the mandate. There is a proposal to from McCaskill for an open enrollment period with a penalty if you try to jump in after and DeFazio for an opt-out with a barrier to prevent free riders.

    Lets see all the glorious freedom lovers in the Republican party work in a bipartisan manner to end the eviiiiiiilll mandate. Come on shouldn’t the R’s be jumping for joy at D’s willing to protect freedom.Report

    • Avatar Jaybird in reply to greginak says:

      EU.

      Like the amalgamation of countries.Report

    • Avatar North in reply to greginak says:

      Well obviously not since the GOP’s stated intention from the get go was to prevent any form of healthcare reform enacted under Obama and now that they’ve failed in that goal their intent is to reverse the loss. Waterloo I believe was the term used.Report

        • Avatar MFarmer in reply to Koz says:

          Must be a talking point sent out to faithfuls.Report

        • Avatar Jaybird in reply to Koz says:

          Leave North alone.

          I’m far more willing to believe that TNR posted his comment without attributing it (or that North emailed it to them and they posted it without mentioning his nom de plume) than that plagiarism occurred.

          Have you no decency, dude?Report

          • Avatar Koz in reply to Jaybird says:

            I’m willing to believe that too, but North can tell us for sure. The substance of the matter is way more important than the plagiarism angle anyway (it’s a blog comment thread fer chrissakes).

            Given what we know about how SCOTUS operates, there’s a strong likelihood that if Obamacare isn’t in force on the day they hear oral arguments, SCOTUS is not going to put Humpty-Dumpty together again.

            That means there’s a lot riding on stays, injunctions, further litigation before ultimate disposition on the Constitutional questions. It’s useful to know if the person who wrote it, whoever it was, has any special information that the rest of us don’t.

            This is especially interesting wrt his aside about Vinson, which seems paranoid at first glance. The writer implies that Vinson’s handling of injunctive relief was some kind of stealth lawyering, which seems stupid because the order is plain as day on that score . Unless there is something in particular about Vinson and this particular decision that the writer knows and hasn’t told us. If that’s the case, let’s hope he can trot down here to the League and spell it out.Report

            • Avatar Will in reply to Koz says:

              Just a quick note from the management –

              First, we certainly don’t endorse plagiarism. My appreciation of this site is largely a product of the volume and quality of original comments we receive on a regular basis.

              That said, North has been posting here for a long time and we’ve never had this issue before. I’m inclined to think that the email from TNR is either from him or was inadvertently posted without attribution. If you do accidentally post something here without linking back to the original source, you can email any one of us and we’ll update your comment to give credit where credit is due.

              This is a comment thread, not a term paper, so I really don’t think this is a big deal. Feel free to shoot me an email with further questions.Report

            • Avatar North in reply to Koz says:

              ‘Morning all.
              I’m not a lawyer or a learned court observer but I’d seen this comment kicking around on a couple of the email chains I participate in. I believe that Jonathan Cohn put it up well before (and better) than I did it. I’ll admit that I slapped that comment down in a hurry and since I don’t have the name, or even a site, for the man who wrote it originally I wasn’t entirely sure how/whether to cite it (I’m not an expert on citation requirements; I was in a hurry and I definitely had an element of “it’s a blog comment by gum!”). I suppose I could have included a link to Jonathan Cohn but he didn’t actually write it either and I try to avoid including links so as not to run afoul of the (very reasonable) moderation traffic light. So apologies there if they’re due.

              That issue aside, Koz, I don’t agree with your interpretation of the substance either.
              It seems quite simple; the Judge has rendered his judgment but has declined to render it in a form that would legally prohibit “Obamacare” from moving along. If he did, or if someone uses his ruling to do so, it would promptly be granted an injunction. So this fulmination seems a lot of nothing; not even the big right winger sites are making much of a full about it since they know that HCR gets to run the whole court gamut before we know for sure whether it’s gone or not.
              As for the ascribing of sneakiness to Vinson I think that’s well merited. His ruling was written like someone who was under the delusion that he was sitting on the supreme court rather than the position he actually held.Report

              • Avatar Koz in reply to North says:

                “It seems quite simple; the Judge has rendered his judgment but has declined to render it in a form that would legally prohibit “Obamacare” from moving along.”

                I think he did, and in any case we’ll find out the first time somebody is forced to do something they don’t want by Obamacare, or maybe even sooner.

                “If he did, or if someone uses his ruling to do so, it would promptly be granted an injunction.”

                Why? This is actually why I wanted to know who wrote your earlier comment.

                I’m not a lawyer, but as I understand it, the decision to award a temporary injunction or stay comes down to irrevocable loss versus probability of winning on the merits. If that’s right, I’d be interested to know what the government claims as its irrevocable loss to keep from voiding Obamacare until the appeals process is finished.

                “As for the ascribing of sneakiness to Vinson I think that’s well merited. His ruling was written like someone who was under the delusion that he was sitting on the supreme court rather than the position he actually held.”

                Yeah, that’s more like arrogance, the opposite of sneakiness. There’s a joke in law school or a book somewhere that the answer to any question that begins “Can a federal judge…..?” is always yes. Couldn’t happen to nicer guys.Report

              • Avatar North in reply to Koz says:

                With regards to the injunction question it’s straight forward enough. Everywhere that I’ve read on the subject the opinion appears to be that if it was required an injunction would be granted as a matter of course (and many of those places are no friends of “Obamacare”). Of course an injunction would be granted, they always are on issues this sweeping and large, especially with a ruling so sweeping and written in such an overreaching manner.Report

      • Avatar Heidegger in reply to North says:

        Hang in there, North!! Your friends still love ya. Several months ago-on the Positive Liberty site–I forgot to attach quotes on a paragraph–it was a very generic medical jargon-type paragraph and was read the riot act. The Plagiarist Police somehow got my address and wired my house and car with plastic explosives and then, BOOM! Lucked out, though. I was out bowling! Sometimes being an unrepentant member of the bourgeoisie really helps.Report

  21. Avatar Michael Drew says:

    Koz, from above:

    there is no enumerated power in the Constitution to allow the federal government to make applicable individuals purchase essential minimum coverage

    That doesn’t matter. (Yikes!) Why not? Because each of the enumerated powers is explicitly buttressed with this language:

    “[The Congress shall have the power] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

    While it’s certainly a given that angels on pins will be argued with respect to the meanings of the words necessary and proper here, it is equally clear that: a) this is meant as a fortification of the powers granted to the federal government elsewhere in the text; and b) no specific substantive limits are placed on what kinds of laws might be allowed as means of “carrying into Execution” the enumerated power — indeed, it is specified that”all laws which shall be necessary and proper” (my emphasis) are provided for. This is not to say the clause gives no limits: the means be necessary and proper for the execution of other named powers. But substantively, what those may finally amount to is left to Congress to determine by hashing out necessity and propriety. This does not mean that powers are not enumerated, but it does mean that in that the legal means available to Congress to carry out those powers are ensured to be no less than what are necessary and proper for doing so, and not limited to a particular list of available mechanisms.

    There are, of course, other specific positive limitations on Congress’ overall power in the Constitution, laid out in the Bill of Rights and elsewhere. Perhaps the individual mandate violates one of those specific limits. It could also be the case that a requirement to maintain minimum health cost coverage is not a necessary or not a proper legal means for Congress to carry out an enumerated power (Koz has linked to quite good ones). But it is not enough to say baldly, as Koz (despite his linkage elsewhere) does above, that requiring individuals to maintain minimum health coverage is not itself specifically enumerated as a power of Congress. That’s because also enumerated as a power of Congress is that it has the power, “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers…” etc.

    Any debate about what the enumerated powers of Congress entail is a debate about what legal means are necessary and proper for executing those powers. The clause guaranteeing the legitimacy of such means is located right at the end, as a full equal, of an enumeration of other powers! That is to say, we have to say why some law or piece of law is not necessary or not proper as a legal means for carrying out one of the enumerated powers, not just that the piece of law is not itself specifically enumerated, in order to say that the provision is not in the scope of the Constitution. The Constitution explicitly states as much. Thus, any such argument must be made in terms that deal not with simple presence or absence among the enumerated powers, but with necessity (specifically, showing a lack thereof) and/or propriety (lack thereof).

    I don’t say this case can’t be made with respect to the individual mandate, but I am calling for us to make it in the terms laid out in the text: Is a provision necessary and is it proper for “carrying into Execution” an enumerated power? One cannot simply say that because some given provision of law is not specifically enumerated, that it is not in the scope of Congress’ enumerated powers. That either reads a section of the main text of the Constitution out of existence, which is unacceptable, or else implicitly makes a bald, unsupported assertion about the provision’s necessity or propriety for executing an enumerated power. And bald, unsupported assertions with respect to the meaning of Constitutional text are nonstarters.

    Simply saying, “Not itself an enumerated power!” with respect to part of a piece of legislation is textual malpractice. One is bound to deal with Congress’ and the government’s attorneys’ arguments about necessity and propriety of the contended provision of law as means of executing enumerated powers.Report

    • Avatar Koz in reply to Michael Drew says:

      I agree. There’s nothing I’ve been writing about the last couple of days in this thread that was intended to address the necessary and proper incidents to the enumerated powers.

      I’ve been dealing with Boonton’s argument which is as I understand it:

      1. The mandate is really a tax and nothing else.
      2. There is no mandate.

      both of which are ridiculous to any black letter reading of the statute.

      The necessary and proper stuff is more complicated and probably what the case will ultimately come down to.Report

      • Avatar Michael Drew in reply to Koz says:

        You keep saying you’re just addressing Boonton’s points, but all these quotes I have are of you making statements about the constitutionality of various legal mechanism, as far as I can tell as broad, general constitutional conclusions. As above, where you simply say that “there is no enumerated power in the Constitution to allow the federal government to make applicable individuals purchase essential minimum coverage.” There is no reason for me not to address that statement generally and per se, because you are quite clearly making it generally and per se. How is that statement affected in its meaning by the fact that you are making it in the course of arguing with Boonton about whether the mandate really is a mandate? If you can tell me, fair enough, but I can’t see it on my own. Either way, the way you make the statement, whatever your intention, makes these points I’ve made entirely germane as far as I am concerned. There is no real reason I need to concern myself with what your internal states were when your actual statements are as general and direct declarations of constitutional meaning as they clearly are on their face, whatever context they appear in.Report

        • Avatar Koz in reply to Michael Drew says:

          Yeah, I understand. If I write,

          “The mandate is unconstitutional for lack of enumerated powers.”, that’s intended to be shorthand for,

          “The mandate is unconstitutional for lack of enumerated powers, bracketing for the moment any concerns about the activity/inactivity distinction and the necessary and proper incidents to enumerated powers.”

          The necessary and proper business is a legitimate concern, I just wasn’t intending to address that in my comments to Boonton.Report

          • Avatar Michael Drew in reply to Koz says:

            If you’re asserting a legal or moral conclusion, you can’t “bracket” what is the determining question about whether it is a valid assertion. At least, not without having made a bald, unsubstantiated assertion, which in the area of constitutionalism invites immediate, unyielding dismissal. The point of my comment is that N&P analysis is that determining question here. If you want to bracket the question of the necessity and propriety of the mandate, then you want to baracket its constitutionality, full stop. And that might be perfectly appropriate when the question on the table is whether a given provision is in fact a “mandate.” But that discussion can be had without reference to whether it is constitutional or not. If you want to sneak in claims about whether it would be constitutional, I’m calling for you to back them up. Otherwise you’re just backing unsupported assertions into your arguments on other questions, and there’s no reason for those to be left uninterrogated.Report

            • Avatar Koz in reply to Michael Drew says:

              Yikes.

              “If you’re asserting a legal or moral conclusion, you can’t “bracket” what is the determining question about whether it is a valid assertion.”

              Sure I can.

              “And that might be perfectly appropriate when the question on the table is whether a given provision is in fact a “mandate.” But that discussion can be had without reference to whether it is constitutional or not.”

              That’s exactly what I’m doing. Not to say that I can’t or won’t engage the N&P-ness of the mandate, I just haven’t at any length.Report

              • Avatar Michael Drew in reply to Koz says:

                Sure you can, yes. But not, “At least, […] without having made a bald, unsubstantiated assertion, which in the area of constitutionalism invites immediate, unyielding dismissal.” Quoting, uh, you know, me in the thing you’re reacting to there. Yikes is right.

                And no, you have not been refraining from unsubstantiated reference to whether, if you are right vis-a-vis Boonton’s interpretation, that would mean that this provision is unconstitutional. I have documented you not to be so refraining. It is true that you have not treated the question at length, but that owes to the fact that you have been making bald, unsubstantiated claims about that question, which is the behavior I am calling attention to.Report

              • Avatar Koz in reply to Michael Drew says:

                Yikes.

                “And no, you have not been refraining from unsubstantiated reference to whether, if you are right vis-a-vis Boonton’s interpretation, that would mean that this provision is unconstitutional.”

                There have been two federal district level orders holding that the mandate is unconstitutional. The latter of which, Vinson, is the topic of this thread and several others. Boonton’s tax/mandate business is the subject of this thread specifically.

                Judge Vinson held that the mandate is not the legitimate exercise of a necessary and proper incident to an enumerated federal power. Therefore the idea that the mandate is not necessary and proper is part of the foundational context of this discussion.

                Now that’s obviously a very contentious claim. Not everybody agrees with Judge Vinson, and you’re certainly welcome to dispute it if you’d like. If I’m inclined, I might put my own two cents in. Until then, let’s assume that I’m addressing the thing I claiming to address, and not addressing the thing I’m not claiming to address. Especially after I’ve explicitly clarified it for you like ten fkkking times already.

                “Immediate, unyielding dismissal” my ass.Report

              • Avatar Michael Drew in reply to Koz says:

                But you did address it, and you didn’t say what your reasoning is. Two other judges have held it to be constitutional.Report

              • Avatar Michael Drew in reply to Koz says:

                …Rather, you used an argument that makes use of a common trope about enumerated powers that simply ignores a clause of the constitution. Not all legitimate actions taken pursuant to the powers explicitly given to Congress will be themselves specifically enumerated. Judge Vinson didn’t rely on such shorthand about enumerated powers; he dealt with necessity and propriety. There is no reason to let an elision of that magnitude simply slip by here, even if it wasn’t the point you were most focused on making. You don’t have to rely on it; and I certainly don’t have to let it go.Report

              • Avatar Michael Drew in reply to Koz says:

                Also, obviously, I can only dismiss you on my own behalf at most. So don’t take that one too hard.Report

              • Avatar Koz in reply to Michael Drew says:

                Ok. Then assume I’m incorporating Judge Vinson’s analysis of the necessary and proper clause, unless it’s clear I mean something else.Report

  22. Avatar Boonton says:

    Michael,

    If I had to shorten this argument a bit, it sounds like the clause is saying if you have something that’s a power of the Congress, Congress may pass whatever laws are needed to exercise that power.

    To use an example, Congress may provide for the common defense. As a result it can pass laws traditionally related to this like establishing military bases, a draft, etc.

    It can also pass unprecedented laws should it be necessary to ‘common defense’….like a law saying that all who die need to be shot in the head and burned…..a sensible law if we are facing a zombie attack.

    If Congress has the power to ensure health coverage, then laws related to that are permitted provided they don’t bump into other clauses. If it’s illegal to require people to buy coverage then it would also be questionable to provide it directly to them as in the case of Medicare for the over 65 group.Report

    • Avatar Michael Drew in reply to Boonton says:

      Yes, if they’re necessary and proper to carry out an enumerated power, which means we have to argue over what necessity and propriety for that are, and whether the particular measure in qualifies that way, not over whether it is itself specifically enumerated.Report

      • Avatar Boonton in reply to Michael Drew says:

        It would appear then that the argument against using the commerce clause to mandate getting coverage appears to be generated from novelity. It’s hard to think of other examples of Congress directly mandating the purchase of something therefore this must be some novel type of power which must be unconstitutional unless we can prove otherwise.

        Necessary and proper, though, would move the test to the question of whether the general goal of the law (trying to get Americans covered) is a legitimate power in itself and then decide whether the particular law (mandating coverage) is both ‘necessary and proper’. Necessary I take it would be a weak test, does the law reasonably relate to its goal….not whether it was the best of all possible laws that might be implemented to persue that goal. Proper may not have much added meaning here (sort of like “unusual” doesn’t seem to alter the meaning much of “cruel and unusual punishments”….although a wit could read this as saying a punishment that was cruel but common wasn’t banned!)Report

        • Avatar Michael Drew in reply to Boonton says:

          You have the broad logical procedure down, but of course there are eleventeen different permutations of the arguments about necessity and propriety (not to mention the question of general Commerce Clause justification of the intent of the statute overall, which is a necessary predicate for getting into N&P. Though from what I understand, that justification not being validated in the case of PPACA would be a revolution in CC precedent unlike any in quite a while, but who knows?), not just the one that reflects how you see it.

          Koz has linked in this thread to an originalist view of N&P made by a Volokh writer back in October (http://volokh.com/2010/10/06/the-necessary-and-proper-clause-and-the-individual-mandate/) that I find formidable if not dispositive. He notably couches his argument with a big “if” on the question of whether SCOTUS has a precedent of following original meaning (at all, to say nothing of said blogger’s estimation thereof) on N&P.

          …Which leads us to the question of where exactly SCOTUS presently stands on interpreting necessity and propriety with respect to measures enacted to carry into Execution enumerated powers, and here is some recent thinking on that:
          http://blogs.forbes.com/danielfisher/2011/02/07/obamacares-fate-hangs-with-roberts-not-kennedy/

          …And the question of the history N&P clause interpretation and precedent and the political-constitutional passions it still arouses (because it’s kind of at the hear of the whole question of what Congress can do in any area, not just the economic regulation) gives me a chance to point link to the dude this blog, who seems still not to have gotten over what he sees as the liberties CJ John Marshall taken w/r/t the clause back in the first quarter of the Nineteenth Century.
          http://constitutionalism.blogspot.com/2010/12/unnecessary-and-improper.html

          Good times.Report

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