Jason, it seems to me like you're fighting a war against the title of your own post. "Economic Commands are Different from Political Commands or Taxes".....you seem to be saying in your title that Political Demands are wrong ('you must buy a house on credit', 'you must buy health insurance', 'you must buy a pink cupcake from Starbucks every 3rd Tuesday of the month') . But 'economic commands/taxes' are ok. If the gov't subsidizes Starbucks cupcakes to make buying them more attractive, if the gov't subsidizes home loans and taxes renters, etc. that's ok.
Yet you change pace and ignore the actual law.....where is the mandate? It seems if you're willing to pay the penalty, tax or whatever you call it you're not a law breaker. Why, then, is this not a relatively mild 'economic command'?
I did actually post that link from the NYT that said the administration was using the tax argument in court. (It also noted that the tax argument was politically awkward since Obama had said the bill did not introduce new or raise existing taxes to pay for it) So I'm not sure what you're talking about here.
I'd like to hear you explain why and how its a mandate when it provides no criminal status for those opting not to have coverage, does not define the penalty/tax as a fine, has the IRS (our taxing agency) rather than Justice Department (our law enforcement agency) administering its collection etc. By this reasoning why wouldn't the mortgage deduction be also a 'mandate' to buy homes on credit? Tobacco taxes a mandate not to smoke?
As for how the government “has made no insurance an attractive health insurance option” not sure how they could have done that when they just passed the individual mandate. Correct me if I’m wrong, but doesn’t the individual mandate mean that “no insurance” is no longer even an option, attractive or otherwise?
This is where the economic aspects of the bill get confused with political language about the bill. The bill DOES NOT mandate insurance. An actual mandate would make a person who chooses not to get insurance (for whatever reason) a person who is breaking the law. It's possible to break the law and face a serious criminal penalty (murder), a minor penalty (parking in a no parking zone) or even no penalty at all. What the law does is make it slightly expensive to choose to have no insurance. This is called a 'mandate' in political debate but it's really not.
In fact, when you consider it you might as well call the mortgage interest deduction a 'mandate to buy a home on credit'. After all the difference the mortgage interest deduction makes for most people in their taxes is a lot more than the tax/penalty that would be incurred by violating the 'mandate' of the health bill.
It would seem that the tax argument is also being used to defend the mandate. So yes people 'smarter than me' do indeed see it as a valid defense. Whether it was used in the most recent ruling I don't know.
You seem to be right about Cato. The insurance mandate, though, was clearly a GOP idea.
http://www.boston.com/news/nation/washington/articles/2010/03/28/health_insurance_mandate_began_as_a_republican_idea/ shows both Romney, Scott Brown and Heritage were hawking it.
http://voices.washingtonpost.com/ezra-klein/2010/02/five_compronises_in_health_car.html notes other major provisions of the bill that are basically Republican ideas.
Amazing in that the idea that passed actually belonged to the "tyranny/socialism" screamers....the insurance mandate idea is right out of the playbook of Mitt Romney, Cato, Heritage etc. All during that time such noted defenders of liberty never noticed it was tyrannical. Now, all in the sudden, it is tyranny.
It seems like the only non-tyrannical concept of health care reform from the Republican side is George Bush's Medicare Part D. Basically a single payer, unfunded entitlement program.
I wasn't aware that the solicitor general has argued the case in front of the Supreme Court already. Perhaps you can provide a source of the gov'ts defense.
Does it matter? If a law is defensible via two different clauses but the gov't chooses to defend it on one clause but not the other is there some legal principle that the courts cannot consider the law's Constitutionality via the other clause? I never heard of such a thing.
I submit that it is unimpressive. Sure! Now let’s take the next step:
Then you examine the next step when and if it is ever taken. Because the next step crosses a line that doesn't make the step before over the line. To use one of your silly hypotheticals, if the gov't tries to command forced plantation labor then that's over the line. That doesn't make some unimpressive law today over the line because its the 'first of a million steps' towards 'forced plantation labor'.
Or use the tax rate example. Do you agree with me that, say, a 1,000% tax rate would be Constitutionally problematic? That it would cease to be just an 'income tax' and more involuntary servitude or punishment without due process? If so then isn't a tax increase from 30% to 31% a 'step' on the way to that rate? Is that increase Constitutionally problematic?
It’s unimpressive because neither you nor I can see innovations that have not happened yet.
Is this a legal/Constitutional argument or a policy argument? Raising the tax rate from 30% to 31% may likewise choke off some innovation that is desirable but that's a legislative consideration, not one for judges.
By that reasoning my free speech is being inhibited because I don't have the money to buy a massive media outlet like Fox News. If there's no distinction between economic freedoms and political freedoms this is where you're going to logically go.
Just because a gov't policy makes a certain choice more expensive doesn't mean that the gov't is prohibiting that choice. For example, Roe.v.Wade said the gov't can't prohibit abortion in the 1st trimester yet in every state abortions have to be performed by doctors, not nurses, not midwives, not med school drop outs. This makes abortion somewhat more expensive than it otherwise would be but that's not the gov't prohibiting abortion.
I will agree that sometimes a policy can create so many economic burdens that it becomes a de facto legal command. If, say, the gov't said that abortion doctors had to have an extra twenty years of med school, publish at least ten articles in peer reviewed journals and be nominated at least once for a Nobel Prize in medicine I'd say that is probably a legal ban on abortion trying to pretend to be 'just economic policies'. But no just because a policy is 'designed to influence behavior' that is NOT the same as gov't taking away your liberty.
I suspect you're right that Democrats have lost some because of their general support for gay rights, but I suspect the GOP has also lost because of their general anti-gay stance. Notice that few Republicans campaign on an actively anti-gay agenda (for example, making a lot of noise about 'the gay agenda', trying to pass explicitly anti-gay laws like Anita Bryant did in the 70's). Instead when Republicans take anti-gay stances, they try to frame them as being neutral. Opposing SSM is cast as 'letting voters, not judges decide' or 'preserving marriage as it now stands' even if the actual language of the bills they sometimes support goes beyond that (infringing on the rights of gay couples to use contracts to mirror some aspects of marriage). Opposing gays in the military is depicted purely as an issue about 'reddiness' or 'unit cohesion'....
This makes the 'cost' aspect somewhat questionable. Yes Kerry might have won Ohio and the election if Democrats were not seen as the go to party for gay rights. But could Kerry have won everything else he did win if the Democrats were not the go to party for gay rights? Maybe if Kerry was anti-gay in Ohio but pro-gay rights everywhere else he could have won in 2004...but I doubt even Republicans could have pulled off such a feat of incoherence.
It seems like you're failing to heed the title of your post. There is a difference between laws that make economic 'commands' and laws that are commands. A $3 tax on smoking is not a 'command prohibiting smoking' but it may be an 'economic command' to some people to stop smoking since it will make it economically unviable for them to continue to do so (or more likely they are unwilling to give up that $3 spending on other things in order to keep smoking). Likewise a tax on not buying health insurance is only an 'economic command' in the sense that it makes not buying health insurance less attractive financially to an individual.
"Polticial" or legal demands are a different creature in that the gov't is making an actual demand. To use my previous example, "No Parking Here" means you cannot park there. If you do you are breaking the law. Now granted the town that enacted that law may not have bothered to set a penalty for breaking it, the police may not enforce the law, you may know for a fact that the parking officer goes home at 3 PM so if you park there then you'll never get a ticket.....all that means there's no 'economic command' not to park in the sense that parking there has no economic cost to you. But nonetheless it is a 'political command'.
While the health bill is called a 'mandate' in everyday language it's simply not in the form of a political mandate. Compare it to the NJ law that I must carry insurance on my car. If I let my insurance lapse, I'll have about 30 days before I get a letter from NJ telling me I have to a) prove I brought other insurance or b) turn in the plates of my car so I can't drive it. If I fail to act my license will be suspended and then I might even be fined which could end up producing a warrent on me if I ignore that. This is both a political and economic mandate. Economic in that letting it lapse will end up costing me more than it would save on insurance payments. But political in that I'm not really free to let it lapse as long as I'm willing to 'pay the fines/fees'. It's technically illegal for me to own a car registered to drive on the streets without keeping up insurance.
Are we keeping in mind that a tax is not a command? In the actual health bill there is no command to buy insurance. It is called a command because it's effectively an 'economic command' in that not buying health insurance becomes less economically attractive to an individual because of the bill.
As I said, if you are already commanded to obtain health care in one of the government-approved ways, any other ways are off the table forever. That’s where the loss of liberty comes in.
This isn't very impressive IMO. If the gov't can command you to do something then it might inhibit your liberty. Yea, if the gov't can prohibit you from doing something it might also infringe on your liberty. Likewise if the gov't can pass laws beginning with the letter 'C' it may infringe on your liberty. The question though is the given law in question an infringement on liberty?
This is why I don't really like making too much of the question "what are the limits". I think there are limits on what the gov't can command just as there are limits on what the gov't can prohibit. If a given law is not against those limits, though, its defenders don't have to articulate what exactly those limits are. For example, I think there is probably a point where income tax rates can cease being permitted income taxes and start becoming punishment of some sort (such as rates in excess of 100%). That didn't make Bill Clinton's tax increases (or George Bush's tax increases, if Obama's extension failed) a violation if they couldn't articulate a Constitutional theory laying out exactly what the unpermissible rates are.
Indeed, but some Constitutional arguments are better than others....like it or not. I've given anti-SSM people plenty of chances to show why the Constitutional arguments for SSM are bad....to date they haven't done a great job. From what I've read of the various court cases actual lawyers who are getting paid to show why the Constitutional arguments are bad can't seem to do much better.
With a prohibition I can't do one thing but I can do everything else. So 'don't do C' means I can do A, B, D, E...
But commands seem like 'just one thing' too. "Do C" doesn't seem to inhibit me from doing A, B, D, E... and so on.
Of course you can say if C is some horrendous burden like "contribute 100,000,000 hours to community service" you are basically inhibited from doing anything else. But then if C is "don't make any money" a prohibition can be just as much a burden on liberty.
Actually no they shouldn't. Most of the time driving 60 mph isn't going to harm anyone, nor will running a red light when no one else is coming, nor is jaywalking, nor is failing to pick up after my dog, or opening a small business in my home, and so on. The Constitution did enshrine many individual freedoms as the foundation of our system of law and justice but it didn't enshrine Ayn Rand's objectivisim (do whatever you want provided it doesn't infringe on me doing whatever I want).
Again Tyranny of the Majority is something more than just 'the Majority'. Just because a law is passed prohibiting you from doing something that seems relatively harmless in your opinion doesn't automatically make you a victim of tyranny.
James, I think there's a problem with 'theoretical limits'....when discussing whether an actual policy is Constitutional courts often don't define theoretical limits. A 60% income tax rate may be high, but it isn't unconstitutional. If a group of libertarians tried to challenge such a tax rate on grounds that it was slavery or something like that the courts would rightly rule against them.
But at the same time that is NOT saying there's absolutely no theoretical limits to income taxation. A slavery argument or punishment without due process argument would probably be effective at tax rates over 100%. Maybe even at, say, 99.9999%. There is a tradition in our jusitice system that says courts do not issue advisory opinions. If congress wants to start passing 100%+ tax rates the courts wait to hear the cases before devising a system to analyze their Constitutionality.
I'm not saying there's no value in thinking about theoretical limits here but there's a limit on how useful the limits are. A hypothetical law putting a million dollar penalty fee on everyone who fails to do one headstand per month may not seem to be ruled out by what I'm saying but that doesn't mean you should assume its ruled in.
And actually not buying insurance is not an 'inactivity' when you have a law prohibiting discrimination against pre-existing conditions. It's basically offloading a liability onto your fellow citizens.
Perhaps an interesting reading of the bill would be to say not paying the tax or penality basically voids your right to participate in the entire law. Hence you cannot use the law to demand that your premiums not be raised to adjust for your failure to buy insurance and your pre-existing conditions. If you want to 'opt out' you really have to opt out.
What if every state enacted a mandate and Iowa was the last? Would the people of Iowa be barred from enacting a mandate if they wanted because you want to live in a state without one? What about setting the BAL of 0.1 for defining a DUI or not having a sales tax? Does the last state have to hold out?
Either a mandate is tyrannical or it isn't. If it is then it should be the law anywhere, if it isn't then a preference not to have one is just that. Go vote and if it works out for you great if not that's the digs.
The 'will of the people' isn't there to make you feel better. Part of living in a democratic system is that you won't like some of the decisions. But as far as the Constitution goes, there's a power to regulate commerce and a power to tax and this relatively mild mandate seems well within it. Do you find it ironic that by your reasoning a universal system of forced Medicare for everyone would be more 'free' than the 'mandate' to buy private insurance?
Actually it sounds to me like a poll tax with a deduction for those who secure insurnace.
As for a 'tax on inactivity', again how is that different from the mortgage interest deduction. If I have a mortgage, my income isn't taxed (as much). If I don't, it is.
The title of this thread is "economic commands are different from political commands". They are. "No Parking" is a political command that may or may not have a punishment behind it. "Parking for $25" is an economic one.
Likewise a 'tax penalty' isn't a command. It's a tax penalty. OK maybe you can argue that punishments can get so excessive that they become something unconstitutional. Life in prison for illegal parking or a $1Billion fine would probably cross some type of line. Nothing in the Health Bill even gets near that, though, so that's a red herring.
Only problem with your hypothetical is that such a law would probably be banned as 'involuntary servitude'. Substance often trumps form in economics and accounting but in law the reverse is often true. For example a corporation with a single shareowner is different than a sole proprietership even though 'substance wise' they are a guy who owns his own business.
Also you failed to note that the HCR law actually prohibits the IRS from using criminal sanctions against those who don't pay, even against filing civil leins on them. It seems like if you're a 'tax evader' the worse that's going to happen is the IRS is going to dock your tax refund.
This is all well and good but there's a problem, the HCR bill has no such 'command'. It explicitly states that no criminal or even civil penalty attaches to the failure to buy health insurance. At best it may be considered a universal tax that allows a deduction if you have coverage.
Legally I agree commands are different from taxes and penalties. Consider a town that has a street that says "no parking from 8 pm to 8 am" and the fine for illegal parking is $25. Consider a different town that has a public parking garage that charges $25 for overnight parking. Economically both towns seem the same, if you don't care about the $25 ticket you might opt to just pay the fine and park illegally.
But legally they are not the same. The town with the garage is offering a service. The town with the sign is making a command. If you park illegally you cannot say you're a law abiding citizen. Because the penalty is so small that may not matter to you but it does matter in the sense that a command is different from a tax or an offer.
Critics of the HCR are kidding themselves IMO if they think they can override the will of the people with getting a judge to rewrite the law off the books.
*Comment archive for non-registered commenters assembled by email address as provided.
On “Economic Commands are Different from Political Commands or Taxes”
Jason, it seems to me like you're fighting a war against the title of your own post. "Economic Commands are Different from Political Commands or Taxes".....you seem to be saying in your title that Political Demands are wrong ('you must buy a house on credit', 'you must buy health insurance', 'you must buy a pink cupcake from Starbucks every 3rd Tuesday of the month') . But 'economic commands/taxes' are ok. If the gov't subsidizes Starbucks cupcakes to make buying them more attractive, if the gov't subsidizes home loans and taxes renters, etc. that's ok.
Yet you change pace and ignore the actual law.....where is the mandate? It seems if you're willing to pay the penalty, tax or whatever you call it you're not a law breaker. Why, then, is this not a relatively mild 'economic command'?
"
I did actually post that link from the NYT that said the administration was using the tax argument in court. (It also noted that the tax argument was politically awkward since Obama had said the bill did not introduce new or raise existing taxes to pay for it) So I'm not sure what you're talking about here.
I'd like to hear you explain why and how its a mandate when it provides no criminal status for those opting not to have coverage, does not define the penalty/tax as a fine, has the IRS (our taxing agency) rather than Justice Department (our law enforcement agency) administering its collection etc. By this reasoning why wouldn't the mortgage deduction be also a 'mandate' to buy homes on credit? Tobacco taxes a mandate not to smoke?
"
As for how the government “has made no insurance an attractive health insurance option” not sure how they could have done that when they just passed the individual mandate. Correct me if I’m wrong, but doesn’t the individual mandate mean that “no insurance” is no longer even an option, attractive or otherwise?
This is where the economic aspects of the bill get confused with political language about the bill. The bill DOES NOT mandate insurance. An actual mandate would make a person who chooses not to get insurance (for whatever reason) a person who is breaking the law. It's possible to break the law and face a serious criminal penalty (murder), a minor penalty (parking in a no parking zone) or even no penalty at all. What the law does is make it slightly expensive to choose to have no insurance. This is called a 'mandate' in political debate but it's really not.
In fact, when you consider it you might as well call the mortgage interest deduction a 'mandate to buy a home on credit'. After all the difference the mortgage interest deduction makes for most people in their taxes is a lot more than the tax/penalty that would be incurred by violating the 'mandate' of the health bill.
"
It would seem that the tax argument is also being used to defend the mandate. So yes people 'smarter than me' do indeed see it as a valid defense. Whether it was used in the most recent ruling I don't know.
"
You seem to be right about Cato. The insurance mandate, though, was clearly a GOP idea.
http://www.boston.com/news/nation/washington/articles/2010/03/28/health_insurance_mandate_began_as_a_republican_idea/ shows both Romney, Scott Brown and Heritage were hawking it.
http://voices.washingtonpost.com/ezra-klein/2010/02/five_compronises_in_health_car.html notes other major provisions of the bill that are basically Republican ideas.
"
Amazing in that the idea that passed actually belonged to the "tyranny/socialism" screamers....the insurance mandate idea is right out of the playbook of Mitt Romney, Cato, Heritage etc. All during that time such noted defenders of liberty never noticed it was tyrannical. Now, all in the sudden, it is tyranny.
It seems like the only non-tyrannical concept of health care reform from the Republican side is George Bush's Medicare Part D. Basically a single payer, unfunded entitlement program.
"
I wasn't aware that the solicitor general has argued the case in front of the Supreme Court already. Perhaps you can provide a source of the gov'ts defense.
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Does it matter? If a law is defensible via two different clauses but the gov't chooses to defend it on one clause but not the other is there some legal principle that the courts cannot consider the law's Constitutionality via the other clause? I never heard of such a thing.
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I submit that it is unimpressive. Sure! Now let’s take the next step:
Then you examine the next step when and if it is ever taken. Because the next step crosses a line that doesn't make the step before over the line. To use one of your silly hypotheticals, if the gov't tries to command forced plantation labor then that's over the line. That doesn't make some unimpressive law today over the line because its the 'first of a million steps' towards 'forced plantation labor'.
Or use the tax rate example. Do you agree with me that, say, a 1,000% tax rate would be Constitutionally problematic? That it would cease to be just an 'income tax' and more involuntary servitude or punishment without due process? If so then isn't a tax increase from 30% to 31% a 'step' on the way to that rate? Is that increase Constitutionally problematic?
It’s unimpressive because neither you nor I can see innovations that have not happened yet.
Is this a legal/Constitutional argument or a policy argument? Raising the tax rate from 30% to 31% may likewise choke off some innovation that is desirable but that's a legislative consideration, not one for judges.
"
By that reasoning my free speech is being inhibited because I don't have the money to buy a massive media outlet like Fox News. If there's no distinction between economic freedoms and political freedoms this is where you're going to logically go.
Just because a gov't policy makes a certain choice more expensive doesn't mean that the gov't is prohibiting that choice. For example, Roe.v.Wade said the gov't can't prohibit abortion in the 1st trimester yet in every state abortions have to be performed by doctors, not nurses, not midwives, not med school drop outs. This makes abortion somewhat more expensive than it otherwise would be but that's not the gov't prohibiting abortion.
I will agree that sometimes a policy can create so many economic burdens that it becomes a de facto legal command. If, say, the gov't said that abortion doctors had to have an extra twenty years of med school, publish at least ten articles in peer reviewed journals and be nominated at least once for a Nobel Prize in medicine I'd say that is probably a legal ban on abortion trying to pretend to be 'just economic policies'. But no just because a policy is 'designed to influence behavior' that is NOT the same as gov't taking away your liberty.
On “Do Gay Rights Hurt Democrats?”
I suspect you're right that Democrats have lost some because of their general support for gay rights, but I suspect the GOP has also lost because of their general anti-gay stance. Notice that few Republicans campaign on an actively anti-gay agenda (for example, making a lot of noise about 'the gay agenda', trying to pass explicitly anti-gay laws like Anita Bryant did in the 70's). Instead when Republicans take anti-gay stances, they try to frame them as being neutral. Opposing SSM is cast as 'letting voters, not judges decide' or 'preserving marriage as it now stands' even if the actual language of the bills they sometimes support goes beyond that (infringing on the rights of gay couples to use contracts to mirror some aspects of marriage). Opposing gays in the military is depicted purely as an issue about 'reddiness' or 'unit cohesion'....
This makes the 'cost' aspect somewhat questionable. Yes Kerry might have won Ohio and the election if Democrats were not seen as the go to party for gay rights. But could Kerry have won everything else he did win if the Democrats were not the go to party for gay rights? Maybe if Kerry was anti-gay in Ohio but pro-gay rights everywhere else he could have won in 2004...but I doubt even Republicans could have pulled off such a feat of incoherence.
On “Economic Commands are Different from Political Commands or Taxes”
Jason,
It seems like you're failing to heed the title of your post. There is a difference between laws that make economic 'commands' and laws that are commands. A $3 tax on smoking is not a 'command prohibiting smoking' but it may be an 'economic command' to some people to stop smoking since it will make it economically unviable for them to continue to do so (or more likely they are unwilling to give up that $3 spending on other things in order to keep smoking). Likewise a tax on not buying health insurance is only an 'economic command' in the sense that it makes not buying health insurance less attractive financially to an individual.
"Polticial" or legal demands are a different creature in that the gov't is making an actual demand. To use my previous example, "No Parking Here" means you cannot park there. If you do you are breaking the law. Now granted the town that enacted that law may not have bothered to set a penalty for breaking it, the police may not enforce the law, you may know for a fact that the parking officer goes home at 3 PM so if you park there then you'll never get a ticket.....all that means there's no 'economic command' not to park in the sense that parking there has no economic cost to you. But nonetheless it is a 'political command'.
While the health bill is called a 'mandate' in everyday language it's simply not in the form of a political mandate. Compare it to the NJ law that I must carry insurance on my car. If I let my insurance lapse, I'll have about 30 days before I get a letter from NJ telling me I have to a) prove I brought other insurance or b) turn in the plates of my car so I can't drive it. If I fail to act my license will be suspended and then I might even be fined which could end up producing a warrent on me if I ignore that. This is both a political and economic mandate. Economic in that letting it lapse will end up costing me more than it would save on insurance payments. But political in that I'm not really free to let it lapse as long as I'm willing to 'pay the fines/fees'. It's technically illegal for me to own a car registered to drive on the streets without keeping up insurance.
"
Are we keeping in mind that a tax is not a command? In the actual health bill there is no command to buy insurance. It is called a command because it's effectively an 'economic command' in that not buying health insurance becomes less economically attractive to an individual because of the bill.
"
As I said, if you are already commanded to obtain health care in one of the government-approved ways, any other ways are off the table forever. That’s where the loss of liberty comes in.
This isn't very impressive IMO. If the gov't can command you to do something then it might inhibit your liberty. Yea, if the gov't can prohibit you from doing something it might also infringe on your liberty. Likewise if the gov't can pass laws beginning with the letter 'C' it may infringe on your liberty. The question though is the given law in question an infringement on liberty?
This is why I don't really like making too much of the question "what are the limits". I think there are limits on what the gov't can command just as there are limits on what the gov't can prohibit. If a given law is not against those limits, though, its defenders don't have to articulate what exactly those limits are. For example, I think there is probably a point where income tax rates can cease being permitted income taxes and start becoming punishment of some sort (such as rates in excess of 100%). That didn't make Bill Clinton's tax increases (or George Bush's tax increases, if Obama's extension failed) a violation if they couldn't articulate a Constitutional theory laying out exactly what the unpermissible rates are.
"
Indeed, but some Constitutional arguments are better than others....like it or not. I've given anti-SSM people plenty of chances to show why the Constitutional arguments for SSM are bad....to date they haven't done a great job. From what I've read of the various court cases actual lawyers who are getting paid to show why the Constitutional arguments are bad can't seem to do much better.
"
Err This seems like a very weak argument Jason.
With a prohibition I can't do one thing but I can do everything else. So 'don't do C' means I can do A, B, D, E...
But commands seem like 'just one thing' too. "Do C" doesn't seem to inhibit me from doing A, B, D, E... and so on.
Of course you can say if C is some horrendous burden like "contribute 100,000,000 hours to community service" you are basically inhibited from doing anything else. But then if C is "don't make any money" a prohibition can be just as much a burden on liberty.
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Yes, except IMO gay marriage has a very good equal protection argument going on.
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Actually no they shouldn't. Most of the time driving 60 mph isn't going to harm anyone, nor will running a red light when no one else is coming, nor is jaywalking, nor is failing to pick up after my dog, or opening a small business in my home, and so on. The Constitution did enshrine many individual freedoms as the foundation of our system of law and justice but it didn't enshrine Ayn Rand's objectivisim (do whatever you want provided it doesn't infringe on me doing whatever I want).
Again Tyranny of the Majority is something more than just 'the Majority'. Just because a law is passed prohibiting you from doing something that seems relatively harmless in your opinion doesn't automatically make you a victim of tyranny.
"
James, I think there's a problem with 'theoretical limits'....when discussing whether an actual policy is Constitutional courts often don't define theoretical limits. A 60% income tax rate may be high, but it isn't unconstitutional. If a group of libertarians tried to challenge such a tax rate on grounds that it was slavery or something like that the courts would rightly rule against them.
But at the same time that is NOT saying there's absolutely no theoretical limits to income taxation. A slavery argument or punishment without due process argument would probably be effective at tax rates over 100%. Maybe even at, say, 99.9999%. There is a tradition in our jusitice system that says courts do not issue advisory opinions. If congress wants to start passing 100%+ tax rates the courts wait to hear the cases before devising a system to analyze their Constitutionality.
I'm not saying there's no value in thinking about theoretical limits here but there's a limit on how useful the limits are. A hypothetical law putting a million dollar penalty fee on everyone who fails to do one headstand per month may not seem to be ruled out by what I'm saying but that doesn't mean you should assume its ruled in.
"
And actually not buying insurance is not an 'inactivity' when you have a law prohibiting discrimination against pre-existing conditions. It's basically offloading a liability onto your fellow citizens.
Perhaps an interesting reading of the bill would be to say not paying the tax or penality basically voids your right to participate in the entire law. Hence you cannot use the law to demand that your premiums not be raised to adjust for your failure to buy insurance and your pre-existing conditions. If you want to 'opt out' you really have to opt out.
"
Majority != Tyranny of the majority.
What if every state enacted a mandate and Iowa was the last? Would the people of Iowa be barred from enacting a mandate if they wanted because you want to live in a state without one? What about setting the BAL of 0.1 for defining a DUI or not having a sales tax? Does the last state have to hold out?
Either a mandate is tyrannical or it isn't. If it is then it should be the law anywhere, if it isn't then a preference not to have one is just that. Go vote and if it works out for you great if not that's the digs.
"
The 'will of the people' isn't there to make you feel better. Part of living in a democratic system is that you won't like some of the decisions. But as far as the Constitution goes, there's a power to regulate commerce and a power to tax and this relatively mild mandate seems well within it. Do you find it ironic that by your reasoning a universal system of forced Medicare for everyone would be more 'free' than the 'mandate' to buy private insurance?
"
Actually it sounds to me like a poll tax with a deduction for those who secure insurnace.
As for a 'tax on inactivity', again how is that different from the mortgage interest deduction. If I have a mortgage, my income isn't taxed (as much). If I don't, it is.
The title of this thread is "economic commands are different from political commands". They are. "No Parking" is a political command that may or may not have a punishment behind it. "Parking for $25" is an economic one.
Likewise a 'tax penalty' isn't a command. It's a tax penalty. OK maybe you can argue that punishments can get so excessive that they become something unconstitutional. Life in prison for illegal parking or a $1Billion fine would probably cross some type of line. Nothing in the Health Bill even gets near that, though, so that's a red herring.
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Only problem with your hypothetical is that such a law would probably be banned as 'involuntary servitude'. Substance often trumps form in economics and accounting but in law the reverse is often true. For example a corporation with a single shareowner is different than a sole proprietership even though 'substance wise' they are a guy who owns his own business.
Also you failed to note that the HCR law actually prohibits the IRS from using criminal sanctions against those who don't pay, even against filing civil leins on them. It seems like if you're a 'tax evader' the worse that's going to happen is the IRS is going to dock your tax refund.
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This is all well and good but there's a problem, the HCR bill has no such 'command'. It explicitly states that no criminal or even civil penalty attaches to the failure to buy health insurance. At best it may be considered a universal tax that allows a deduction if you have coverage.
Legally I agree commands are different from taxes and penalties. Consider a town that has a street that says "no parking from 8 pm to 8 am" and the fine for illegal parking is $25. Consider a different town that has a public parking garage that charges $25 for overnight parking. Economically both towns seem the same, if you don't care about the $25 ticket you might opt to just pay the fine and park illegally.
But legally they are not the same. The town with the garage is offering a service. The town with the sign is making a command. If you park illegally you cannot say you're a law abiding citizen. Because the penalty is so small that may not matter to you but it does matter in the sense that a command is different from a tax or an offer.
Critics of the HCR are kidding themselves IMO if they think they can override the will of the people with getting a judge to rewrite the law off the books.
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