George Will Comes Out for Single-Payer Healthcare Insurance! Again! (This time, though, it’s the Constitution’s ‘origination’ clause that made him do it.)
Updated below.
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If the president wants to witness a refutation of his assertion that the survival of the Affordable Care Act is assured, come Thursday he should stroll the 13 blocks from his office to the nation’s second-most important court, the D.C. Circuit Court of Appeals. There he can hear an argument involving yet another constitutional provision that evidently has escaped his notice. It is the origination clause, which says: “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.”
— Obamacare’s doom, George F. Will, Washington Post, May 2
Hmmm. And y’all thought it was the antidisestablishmentarianism clause in the ACA that was going to be Obamacare’s doom, after reading that column of Will’s back a few months ago that said so. But, he promised!
Oh, well, doom is doom, whatever the sound of the death knell. So, not to worry, Chuck and Dave. Will explains:
This case comes from Matt Sissel, an Iowa artist and small-business owner who is represented by the Pacific Legal Foundation, which litigates for limited government. Sissel neither has nor wants health insurance, preferring to invest his limited resources in his business. Hence he objects to the ACA’s mandate that requires him to purchase it or pay the penalty that the ACA daintily calls the “shared responsibility payment.”
In June 2012, a Supreme Court majority accepted a, shall we say, creative reading of the ACA by Chief Justice John Roberts. The court held that the penalty, which the ACA repeatedly calls a penalty, is really just a tax on the activity — actually, the nonactivity — of not purchasing insurance. The individual mandate is not, the court held, a command but merely the definition of a condition that can be taxed. The tax is mild enough to be semi-voluntary; individuals are free to choose whether or not to commit the inactivity that triggers the tax.
In other words, the Supreme Court two years ago held that the ACA’s individual mandate is really just a tax on the activity — actually, the nonactivity — of not purchasing insurance, which actually means that the Supreme Court held that the ACA’s individual mandate is not really just a tax on the activity — actually, the nonactivity — of not purchasing insurance. Instead, the Court held that it’s a tax for the purpose of raising revenue!
Okay, the Supreme Court did not actually hold that the mandate fee is just a tax on the activity or nonactivity of purchasing insurance, But George Will holds that it is. And that means that it is:
The “exaction” — Roberts’s word — “looks,” he laconically said, “like a tax in many respects.” It is collected by the IRS, and the proceeds go to the Treasury for the general operations of the federal government, not to fund a particular program. This surely makes the ACA a revenue measure.
Yep. The mandate fee is collected by the IRS, and the proceeds go to the Treasury for the general operations of the federal government, not to fund a particular program. This surely makes the ACA a revenue measure. Or would, anyway, were it not for that pesky word “for” in the origination clause. As in: “All bills for raising revenue shall originate in the House of Representatives.”
The purpose of the mandate, enforceable by the fee for not obtaining healthcare insurance (unless you are exempted from the mandate), is, indisputably, to encourage people to obtain healthcare insurance, not to raise revenue. That is a fact and it also is what the Supreme Court held two years ago. The Court held that what matters is statute subsection’s primary purpose, not which agency is designated to collect or administer it, and not whether the proceeds go to the Treasury for the general operations of the federal government rather than to fund a particular program. I would say I wonder which House of Congress back in the 1930s first voted to pass the New Deal farm legislation that levied fines against farmers who did not comply with that law’s planting/no-planting requirements, but really I don’t wonder. Because it doesn’t matter. It might if the origination clause said, “All bills raising revenue shall originate in the House of Representatives.” But it doesn’t.
Although maybe ellipses could be inserted by the court in place of “for,” when quoting the clause.
As for Matt Sissel, I’m sort of betting that there are things that general tax revenues pay for that he’s glad his taxes contribute to that many other people, also with limited resources, would prefer to invest in something personal. I wonder how much his annual tax bill would be reduced if federal taxes stopped paying subsidies to millionaire farmers and agribusinesses. Including a good many in Iowa. Even some millionaire farmers who may buy his art. Or patronize his small business. And who also have been effectively insuring his access to emergency hospital care, should he need it. As have his non-millionaire Iowa neighbors.
This post’s title is, of course, facetious. But only technically. As I’ve said now seemingly a hundred times in various posts here at AB, the underlying complaint of virtually every Obamacare horror-story victim is one thing or another that really amounts to a plea for a single-payer or much-more-highly-regulated healthcare insurance system in this country, like there is in every single other advanced economy in the world. I wonder how Mr. Sissel feels about Medicare. And, perhaps, how his parents feel about it.
He paints a pretty, libertarian landscape. So does George Will. But the art of real life is painted on a broad canvas.
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UPDATE: Bruce Webb has two detailed comments to this post, the first which begins:
Will is a profoundly silly man. PPACA was enacted via a revenue bill that originated in the House, namely HR3590. Now the original text and purpose of HR3590 had basically nothing to do with the bill language and subsequent law that were grafted into and onto it but unless Will is trying to establish some Constitutional test about the limits of the ability of Congress to amend legislation it is hard to see where he, or the plaintiffs, even have [an argument].
The second one says:
A little legislative history. In July 2009 the three House Committees with jurisdiction all passed the same Bill out of Committee, which bill, whose lead author was John Dingell came known as the ‘Tri-Committee Bill’. A week late[r] Senate HELP [Health, Education, Labor, & Pensions] passed out a very similar version differing only in detail which was known as Kennedy-Dodd. Now Senate HELP lacked jurisdiction over taxes and Medicare, both the purview of Senate Finance and so Kennedy-Dodd was incomplete. Over the course of the next six months and through a wearisome sequence fully documented here at AB in real time, Senate Finance failed to pass anything out at all and instead was limited to a so-called ‘Chairman’s Mark’ representing the views of Baucus and a subset of the Committee. Whereupon Leader Reid simply took all those materials and sent a “Leader’s Mark” to the Floor, using an existing House Revenue Bill as a vehicle. Given the tight deadlines that Leaders Mark as amended became the PPACA once adopted by the Senate and the House. …
Will is just parroting the briefs of Sissel’s pro bono Conservative Legal Movement legal-foundation counsel. The Pacific Legal Foundation is a regular in such matters.
Thanks, Bruce.
http://www.gpo.gov/fdsys/pkg/BILLS-111hr3590enr/pdf/BILLS-111hr3590enr.pdf
Will is a profoundly silly man. PPACA was enacted via a revenue bill that originated in the House, namely HR3590. Now the original text and purpose of HR3590 had basically nothing to do with the bill language and subsequent law that were grafted into and onto it but unless Will is trying to establish some Constitutional test about the limits of the ability of Congress to amend legislation it is hard to see where he, or the plaintiffs even have standing.
The Senate amended a House revenue bill, the House WITHOUT OBJECTING TO THE PROCEDURE, ultimately passed that same bill which then went to the President’s desk to be signed into law. To the extent that any party has standing it would seem to be the House but here as in hundreds of similar cases the House was totally and explicitly complicit.
Plus even if we went to substance the core of the bill language as inserted by Reid in his Leader’s Mark and then amended by the Senate came from the House Tri-Committee Bill. And this was specifically true for the revenue language because the Senate Committee with jurisdiction deadlocked and produced no product at all.
Although I read every iteration of PPACA in real time I confess I have not compared the ultimate revenue language of the Act with that approved as part of the Tri-Committee Bill by House Ways and Means the ultimate shape of the two were very close and it it mattered you could claim that language “originated” in the House.
But it doesn’t matter. HR3590 was a Revenue Bill originated in the House and subsequently amended and passed by the Senate and House. I have a hard time seeing that even this Court would stomp on Separations of Powers to suggest that the House and Senate Parliamentarians and both Houses leadership just buffed this one.
This is a Barracks Lawyering at its worst and I am surprised this wasn’t just rejected out of hand. On the issue of Standing if nothin else
A little legislative history. In July 2009 the three House Committees with jurisdiction all passed the same Bill out of Committee, which bill, whose lead author was John Dingell came known as the ‘Tri-Committee Bill’. A week late Senate HELP passed out a very similar version differing only in detail which was known as Kennedy-Dodd. Now Senate HELP lacked jurisdiction over taxes and Medicare, both the purview of Senate Finance and so Kennedy-Dodd was incomplete. Over the course of the next six months and through a wearisome sequence fully documented here at AB in real time, Senate Finance failed to pass anything out at all and instead was limited to a so-called ‘Chairman’s Mark’ representing the views of Baucus and a subset of the Committee. Whereupon Leader Reid simply took all those materials and sent a “Leader’s Mark” to the Floor, using an existing House Revenue Bill as a vehicle. Given the tight deadlines that Leaders Mark as amended became the PPACA once adopted by the Senate and the House. Meaning that if you like you could call it O’Reid-Care. But while this process was very close to typical legislative sausage making where the less attention to the precise process of production the better given any rudimentary deferral to Separations of Power by the Appeals Cout and then the Supremes this should blow over without notice much like the proverbial “fart in a hurricane”.
Special Pleading doesn’t even cover it. Maybe ‘Short Bus’ Pleading.
Thanks Bev. But while I am not a lawyer I really did mean ‘standing’ and not ‘argument’. Perhaps you could school me as to why these plaintiffs should actually have ‘standing’ (as I understand it).
Because I was at one time an academic of sorts, at least to the degree a student in a History PhD program is such and my reading, more or less in passing, of U.S. history shows a Federal Court system leery of intervening in pure Separation of Powers cases or in matters internal to one branch of Government. Maybe based on this from Article 1 Section 5:
“2: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”
Seems to me that if the House decides to pass a Bill they have de facto conceded that it has met its own “Rules of its Proceedings”. Even as in this case where the Senate version was sent over on a ‘take or leave it’ basis that left Pelosi no room to manuevre or amend. But there it was, Pelosi took a deep breath and sent it to the floor for passage. So if there is any wronged party with any right to go to Court it would seem to be the House as it was then constituted, and once again we have a Federal Judiciary that historically has been reluctant to get involved in internal mattets of this sort.
Now sure there is a broader argument in play here, that the requirement for Revenue bills to originate in the House is some sort of protection to the People as against whatever the Senate was seen to represent. But mostly this was a simple carryover from the practice of the British Parliament which held that all such Bills had to originate from Commons and not from Lords which in turn represented a much different economic and political history (including a couple Civil Wars of their own) in England between those two Houses than anything we would expect between House and Senate.
Anyway I had reservations even as I typed the original comment about using laywerly ‘terms of art’ like ‘standing’. Because I too had some narrow areas of specializtion that made me wince when outsiders carelessly used our technical terms and concepts. So I fully understand and for what it is worth approve your substituing [argument]. But it well and truly doesn’t convey my actual, perhaps clumsy, attempt to raise a question.
Hi, Bruce. Yeah, “standing” is a legal term of art that means, in essence, that in order to be able to litigate a particular issue in court, you have to have a “particularized”–i.e, pretty clearly defined, direct, and “proximate”–legally-recognized interest in the outcome. That is, the outcome of the case would have to have some direct impact on you. It stems from the so-called Case-or-Controversy clause in the Constitution’s Article III, which is the article that creates the federal courts and describes their reach.
In this case, Sissel clearly has “standing” to challenge the constitutionality of the mandate provision of the ACA, because he does not have insurance, does not want insurance, and is subject to the mandate provision.
Well okay, I have to defer there. But it seems odd that he can root whatever wrong he has suffered here (I won’t say ‘tort’) by evoking the Origination Clause. Less of a stretch it seems to me would be to evoke the much ignored Ninth Amendment. But here he is making an argument that his rights to not have insurance (which after all would cost him only $95 to buy out of this year) should mean crippling the ability of Congress to pass otherwise Constitutional laws because some i’s weren’t dotted on a matter of procedure.
But no matter, I am kind of confident in my original more straightforward argument: HR3590 WAS a House originated Revenue Bill. So to the extent that this guy even has ‘standing’ as lawyers would measure it he simply has no path to a decision. Particularly as his ‘remedy’ to this violation of ‘right’ would on its face overturn decades of legislation, or if just applied prospectively deadlock Congress even more than it is currently.
George Will is David Brooks with a better vocabulary.
Though I am not really sure it is not due to a better use of a thesaurus.