A good post, in fairness to Ms. Bachmann, I think we should take something into consideration that she may not be able to articulate.
This ties in with (Freddie's?) post on post-modern from a year or two ago. An idea that's important in conservativism is that our biases and prejudices may be irrational in that they can't be defended logically but they are nonetheless good because they have stood the test of time. (Or another way of looking at it is a type of social darwinism. Some of the prejudices we inherit may seem poorly thought out but they actually make a lot of sense, because of this they had an advantage that allowed them to survive over numerous generations).
So one concept that has been around for quite a while has been a pseudo-deification of the Founding Fathers. This works for us in many ways. Since the Founders lived in very different times and had a diverse POV, viewing them as sacred today doesn't force us into a single set of policies. During the Civil War, for example, both North and South referenced the Founders to try to enlist them to their sides. Afterwards left and right both sought to reference their positions in terms of the ideas expressed by the Founders. So in a sense the Founders give us a type of shared mythology that pushes us in our debates to a higher level but doesn't suffocate us with dogmatism.
From Bachmann's perspective, though, this is a kind of 'noble lie'. To work you have to think of the Founders as something more than human. Hence the problem with Vidal's work is that it's true. Not true in the sense that that he somehow got the Founders right (who knows what they were really like?) but true in that he's making them look like people. If they are people they can't serve as myths.
But Bachmann is in a bind. As a conservative her agenda is like an environmentalist who seeks to protect endangered species. The problem is she seeks to protect endangered lies. Unlike the environmentalist, though, trying to protect a lie is tricky because you can't really be honest about what you're doing. As soon as you say "I'm defending a lie" you've given up your lie for dead unless you're willing to venture into an odd post-modern territory where you argue that we should all play the role of ironists who will pretend to believe something without really believing it. So Bachmann can only defend a lie by being dishonest and treating the lie as the truth. The Founders were mythological, not regular people. Their disputes and disagreements were cosmically important, not petty politics.
There is a point to this that Bachmann can't discuss but we can. The lie has its merits and it's not for sure the truth offers merits greater than the lie. Does it help to imagine Jefferson sitting on a crapper wiping his ass or Lincoln with a fetish for fat women? The first is almost certainly true, the second is a guess but let's say its the truth. Does that truth help as much as the lie of those people being larger than life?
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.
A like idea I've seen is a type of 'pay or play'. If you don't get insurance coverage, none of the laws protections will apply to you. If you get a pre-existing condition or if you get 'profiled' have some gene increasing your odds of getting a disease you're at the mercy of the insurance companies.
Perhaps, though, open enrollment could be combined with some type of credit system. Say you're 24 and in good health. You opt to get insurance but have no claims during the year. Say this goes on for ten years, when you're 34 you can get credit towards lower premiums because you were a loyal insurance customer during your youth. This would probably require some legislation because to make it work the insurance companies would have to be preprared to cross honor people who carry insurance for years from different companes.
The mandate idea, though, is something that would be interesting to test. It's one of those stories that sounds quite logical but I'm not sure it mirrors reality. Do people really forgo coverage multiplying the odds of getting sick times the expected cost of getting sick compared to the premiums? Or do most who don't carry insurance simply aren't offered it or find it very expensive. If it's the latter you may be able to drop the mandate without having too many problems with people gaming the system.
"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?
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.
1. If single payer is better, I don't see this reform making that tougher. You can create a single payer system in the same way the Transcontinental Railroad was built, from both ends in. Continue to expand Medicaid to cover more from the poor end and push Medicare down to younger populations. The advantage in this bill, though, is that if this doesn't work you're not locked into it. The US may simply remain a country where most people who aren't on Medicare will get their coverage from employers or it may become a country where people will shop individually for private plans with gov't help for those who can't afford it. Since the most honest stance is to say 'we really don't know' it's better to leave all these options open rather than to do a blanket policy (like single payer) today that wipes out everything we have. If that works then that's great but if it creates a huge mess going back will be all the harder.
This I think is the problem with people who complain about how complicated the bill is. The bill is complicated because its conservative in the sense that it seeks change but not radical change. A plan like single payer could probably be done in a much simplier bill but it would hardly be simple in its implications.
2. In terms of not making people healthier but adding expense, I guess I have to ask why? Private insurance is competiting against itself. Why would it pay doctors and other providers more and more for less? Is it because people who aren't covered now will become covered? OK but then what are those people doing today? Are they going without needed treatment? If so then it seems unethical to keep a status quo predicated on people who need treatments unable to get them because they happen to be unlucky. If not then why would private insurance companies competiting against each other be willing to pay for treatments that are unnecessary thereby raising costs?
3. "What I’m doing here, in this particular post, is I’m trying to explain why the sort of limits I think our constitution contains are defensible according to a particular theory of justice — essentially, the Hayekian one, although I don’t say so outright."
Maybe I missed some of your arguments but I haven't seen any theory of justice presented in the arguments over the 'individual mandate'. I've seen arguments about theories of semantics which is basically what the Constitutional arguments boil down too. That was revealed when those arguing the bill is unconstitutional basically said that the exact same policy would be Constitutional if the wording was done differently.
Again, is it only a matter of the immediate impact or of the predictable result. I’ll go with the latter.
People who predict highly complex systems like where US health care will evolve over the next few decades are fools. There's no reason to confidently assume that the reform as passed would produce single payer in the future. France, for example, has basically private insurance with gov't subsidy and no inclination towards adopting, say, the UK system. Ditto for Germany.
No, not really. I get it from one of their own — Paul Tsongas’ “Call to Economic Arms” adequately defines the redistributive agenda.
Ahhh yes, you discovered our Tsongas Protocols. Now you know too much. Don't worry, we'll make your demise quick and painless.
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.
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.
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.
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.
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.
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.
One of the defining problems of the healthcare debate is that some people, for whatever reason, CHOOSE not to buy healthcare. That’s what the mandate is all about. Forcing those people to choose in a way that we want them to.
No it's not. If tomorrow someone 'discovers' some Constitutional theory that limits the number of commas that a bill can have by next Monday trust me they will be a newly formed advocacy group demanding that the Health Bill must be stopped because of its surplus commas. When the case goes to court a collection of people will appear screaming that excessive comma use is exactly how Hitler and Stalin came to power and they honestly have no problem with health care reform but please just get rid of this bill and pass one with fewer commas.
Anyone who really wants to not have health coverage for whatever reason will find it quite easy to do with the current bill.
Single payer - off the table
Abortion coverage, even if it was choosen by the patient - off the table
Public option - off the table
Public option with trigger as Bush's Medicare D has - off the table.
Ohhh, illegal immigrants getting covered, that's off the table too but that didn't stop the yahoo from yelling 'you lie' a the State of the Union.
The Democrats compromised quite a bit, the Republicans took each concession and demanded more without offering even token votes. Yes at a certain point you're done, you vote and either the yes's or no's win and that's that. That's not some horrible victimization of Congressional Republicans.
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.
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.
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.
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.
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.
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.
On “Bachmann, Burr, and Patriotism”
A good post, in fairness to Ms. Bachmann, I think we should take something into consideration that she may not be able to articulate.
This ties in with (Freddie's?) post on post-modern from a year or two ago. An idea that's important in conservativism is that our biases and prejudices may be irrational in that they can't be defended logically but they are nonetheless good because they have stood the test of time. (Or another way of looking at it is a type of social darwinism. Some of the prejudices we inherit may seem poorly thought out but they actually make a lot of sense, because of this they had an advantage that allowed them to survive over numerous generations).
So one concept that has been around for quite a while has been a pseudo-deification of the Founding Fathers. This works for us in many ways. Since the Founders lived in very different times and had a diverse POV, viewing them as sacred today doesn't force us into a single set of policies. During the Civil War, for example, both North and South referenced the Founders to try to enlist them to their sides. Afterwards left and right both sought to reference their positions in terms of the ideas expressed by the Founders. So in a sense the Founders give us a type of shared mythology that pushes us in our debates to a higher level but doesn't suffocate us with dogmatism.
From Bachmann's perspective, though, this is a kind of 'noble lie'. To work you have to think of the Founders as something more than human. Hence the problem with Vidal's work is that it's true. Not true in the sense that that he somehow got the Founders right (who knows what they were really like?) but true in that he's making them look like people. If they are people they can't serve as myths.
But Bachmann is in a bind. As a conservative her agenda is like an environmentalist who seeks to protect endangered species. The problem is she seeks to protect endangered lies. Unlike the environmentalist, though, trying to protect a lie is tricky because you can't really be honest about what you're doing. As soon as you say "I'm defending a lie" you've given up your lie for dead unless you're willing to venture into an odd post-modern territory where you argue that we should all play the role of ironists who will pretend to believe something without really believing it. So Bachmann can only defend a lie by being dishonest and treating the lie as the truth. The Founders were mythological, not regular people. Their disputes and disagreements were cosmically important, not petty politics.
There is a point to this that Bachmann can't discuss but we can. The lie has its merits and it's not for sure the truth offers merits greater than the lie. Does it help to imagine Jefferson sitting on a crapper wiping his ass or Lincoln with a fetish for fat women? The first is almost certainly true, the second is a guess but let's say its the truth. Does that truth help as much as the lie of those people being larger than life?
On “The Mandate Double-Bind”
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.
On “Bachmann, Burr, and Patriotism”
OK I apologize for Polanski raping a 13 yr old girl over 30 years ago. When will the right apologize for the TailHook scandal?
On “Open-Enrollment vs. the Mandate”
A like idea I've seen is a type of 'pay or play'. If you don't get insurance coverage, none of the laws protections will apply to you. If you get a pre-existing condition or if you get 'profiled' have some gene increasing your odds of getting a disease you're at the mercy of the insurance companies.
Perhaps, though, open enrollment could be combined with some type of credit system. Say you're 24 and in good health. You opt to get insurance but have no claims during the year. Say this goes on for ten years, when you're 34 you can get credit towards lower premiums because you were a loyal insurance customer during your youth. This would probably require some legislation because to make it work the insurance companies would have to be preprared to cross honor people who carry insurance for years from different companes.
The mandate idea, though, is something that would be interesting to test. It's one of those stories that sounds quite logical but I'm not sure it mirrors reality. Do people really forgo coverage multiplying the odds of getting sick times the expected cost of getting sick compared to the premiums? Or do most who don't carry insurance simply aren't offered it or find it very expensive. If it's the latter you may be able to drop the mandate without having too many problems with people gaming the system.
On “The Mandate Double-Bind”
"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?
"
Applicable individuals are those who have a certain level of income or greater. It's an income tax.
"
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.
On “The Two Obfuscations of Obamacare”
Turning your criticisms on their heads a bit:
1. If single payer is better, I don't see this reform making that tougher. You can create a single payer system in the same way the Transcontinental Railroad was built, from both ends in. Continue to expand Medicaid to cover more from the poor end and push Medicare down to younger populations. The advantage in this bill, though, is that if this doesn't work you're not locked into it. The US may simply remain a country where most people who aren't on Medicare will get their coverage from employers or it may become a country where people will shop individually for private plans with gov't help for those who can't afford it. Since the most honest stance is to say 'we really don't know' it's better to leave all these options open rather than to do a blanket policy (like single payer) today that wipes out everything we have. If that works then that's great but if it creates a huge mess going back will be all the harder.
This I think is the problem with people who complain about how complicated the bill is. The bill is complicated because its conservative in the sense that it seeks change but not radical change. A plan like single payer could probably be done in a much simplier bill but it would hardly be simple in its implications.
2. In terms of not making people healthier but adding expense, I guess I have to ask why? Private insurance is competiting against itself. Why would it pay doctors and other providers more and more for less? Is it because people who aren't covered now will become covered? OK but then what are those people doing today? Are they going without needed treatment? If so then it seems unethical to keep a status quo predicated on people who need treatments unable to get them because they happen to be unlucky. If not then why would private insurance companies competiting against each other be willing to pay for treatments that are unnecessary thereby raising costs?
3. "What I’m doing here, in this particular post, is I’m trying to explain why the sort of limits I think our constitution contains are defensible according to a particular theory of justice — essentially, the Hayekian one, although I don’t say so outright."
Maybe I missed some of your arguments but I haven't seen any theory of justice presented in the arguments over the 'individual mandate'. I've seen arguments about theories of semantics which is basically what the Constitutional arguments boil down too. That was revealed when those arguing the bill is unconstitutional basically said that the exact same policy would be Constitutional if the wording was done differently.
On “Legislating from the bench”
Again, is it only a matter of the immediate impact or of the predictable result. I’ll go with the latter.
People who predict highly complex systems like where US health care will evolve over the next few decades are fools. There's no reason to confidently assume that the reform as passed would produce single payer in the future. France, for example, has basically private insurance with gov't subsidy and no inclination towards adopting, say, the UK system. Ditto for Germany.
No, not really. I get it from one of their own — Paul Tsongas’ “Call to Economic Arms” adequately defines the redistributive agenda.
Ahhh yes, you discovered our Tsongas Protocols. Now you know too much. Don't worry, we'll make your demise quick and painless.
On “The Mandate Double-Bind”
I'm getting it too. I'm using an older browser, Explorer 6.0, could that be it?
"
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.
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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.
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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.
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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.
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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.
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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.
On “The Importance of Being Insured”
One of the defining problems of the healthcare debate is that some people, for whatever reason, CHOOSE not to buy healthcare. That’s what the mandate is all about. Forcing those people to choose in a way that we want them to.
No it's not. If tomorrow someone 'discovers' some Constitutional theory that limits the number of commas that a bill can have by next Monday trust me they will be a newly formed advocacy group demanding that the Health Bill must be stopped because of its surplus commas. When the case goes to court a collection of people will appear screaming that excessive comma use is exactly how Hitler and Stalin came to power and they honestly have no problem with health care reform but please just get rid of this bill and pass one with fewer commas.
Anyone who really wants to not have health coverage for whatever reason will find it quite easy to do with the current bill.
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Single payer - off the table
Abortion coverage, even if it was choosen by the patient - off the table
Public option - off the table
Public option with trigger as Bush's Medicare D has - off the table.
Ohhh, illegal immigrants getting covered, that's off the table too but that didn't stop the yahoo from yelling 'you lie' a the State of the Union.
The Democrats compromised quite a bit, the Republicans took each concession and demanded more without offering even token votes. Yes at a certain point you're done, you vote and either the yes's or no's win and that's that. That's not some horrible victimization of Congressional Republicans.
On “The Mandate Double-Bind”
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.
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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.
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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.
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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.
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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.
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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.
On “The Two Obfuscations of Obamacare”
Is your issue that the law has sections where waivers are an option? Or that too many waivers have been issued? Or both?
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