It’s not about regulating markets, after all! It’s about regulating the individual!
by Beverly Mann
Ah! It’s not about regulating markets, after all! It’s about regulating the individual!
ATLANTA — In perhaps the weightiest of the dozens of challenges to the Obama health care law, a panel of appellate judges grappled Wednesday with the essential quandary of the case: if the federal government can require Americans to buy medical insurance, what constitutional limit would prevent it from mandating all manner of purchases and activities?
—Kevin Sack, New York Times, Jun. 8
In my last post, Markets and the ACA: Why the Supreme Court Will Uphold the ACA, I wrote:
[Santa Clara law prof. and ACA-litigation blogger Brad Joondeph is] right (see my earlier post), but only if, as he says earlier, the market for health insurance is defined so narrowly that health insurance is viewed as a commodity, a product, independent of the product’s purpose and effect. And then, the constitutional issue would not, I think, be whether Congress has the authority under the Commerce Clause, aided by the Necessary and Proper Clause, to regulate the health insurance market, but instead whether this violates some other constitutional limitation. You know: the slippery-slope-to-government-compelled-consumption-of-broccoli argument.
Turns out I was onto something.
Dan posted the post on Thursday, a day after the oral argument in the 11th Circuit court of Appeals in what is broadly viewed as the key ACA lawsuit because the plaintiffs include 26 states and because the trial-court judge, Pensacola-based Roger Vinson, struck down the entire ACA because he ruled that the Act’s individual-mandate requirement is unconstitutional and said the entire statute is too dependent on the individual-mandate provision to “sever” that provision from the rest of the statute. But I’d written my post on Tuesday, in anticipation of the oral argument, and posted it on my blog that day.
But from reports I’ve read about the oral argument on Wednesday, it looks to me like that appellate panel will decide the case not on the basis of the limits of the Commerce Clause but instead on a more general civil liberties ground. They may cloak it as a Commerce Clause issue—and certainly that is what Paul Clement, the attorney representing the 26 states wants the court to do—but, really, given the questioning and comments from the swing judge on that appellate panel, and therefore the basis on which that panel will decide the case, this would be an improper conflation of Commerce Clause issues and what is known as “substantive due process” issues. And I think, ultimately, it is the substantive due process question on which the Supreme Court will decide the case. This is so even though conservative legal types detest the very concept of substantive due process.
Substantive due process is a doctrine of constitutional law that holds that there are limits, inherent within the Constitution, to the extent to which the government can interfere with basic personal choices, irrespective of how much procedural due process that individual is accorded. It’s a concept completely independent of procedural due process—the right to due process of law before the courts can strip you of life, liberty or property.
Procedural due process is all about the limits of what courts can do. Substantive due process, by contrast, is almost always about the limits of what a legislature can do. The doctrine holds that there are some personal choices that are inviolate under the Constitution. It is the much-ridiculed-by-right-wingers legal principal on which Roe v. Wade was based. Roe v. Wade, for its part, was based on a 1965 Supreme Court case called Giswold v. Connecticut, which created the substantive-due-process right of individuals to make deeply personal decisions for themselves and struck down as an unconstitutional violation of that privacy right a state statute that prohibited the use of contraceptives. And it is the principal on which in an eloquent 2003 opinion, Lawrence v. Texas, by Justice Kennedy, the Court struck down Texas’s anti-sodomy criminal statute.
Rehnquist, Scalia and Thomas dissented in Lawrence on the ground that, in their view, there is no such substantive-due-process right—no privacy right concerning intimate personal decisions—in the Constitution. Scalia and Thomas might change their minds, though, but only about the intimate decision not to buy health insurance, especially because that right is just too similar to the intimate right not to eat broccoli.
The 11th Circuit panel members are Joel Dubina, a conservative Reagan appointee to the district (trial-court level) court and a G.H.W. Bush appointee to the appellate court, whose daughter is a freshman Alabama congresswoman who campaigned on a promise to try to repeal the ACA; Frank (female, despite her name) Hull, a moderate Clinton appointee; and Stanley Marcus, a moderate-to-conservative G.H.W. Bush appointee to the district court and Clinton appointee to the appellate court.
According to one report I read, Marcus early in the hearing said he viewed the central issue in the case—the constitutionality of the individual-mandate provision—as less a Commerce Clause issue than a civil liberties issue: Does the mandate violate the civil liberties of individuals by requiring them to obtain healthcare insurance? That’s a different question, and a broader one, I think, then whether Congress has the authority under the Commerce Clause, aided by the Necessary and Proper Clause, to mandate the purchase of healthcare insurance by those who can afford to buy it. Congress may have that authority under the Commerce Clause, but the legislation still might be unconstitutional if it violates another provision of the Constitution, here presumably the substantive due process right to be compelled to buy something. Presumably, because no one, least of all Clement, used the term “substantive due process right”. But he sure the words “compel,” “liberty” and “individual.” Early and quite often:
“The Commerce Clause only gives Congress the power to regulate, not to compel.” …
“It boils down to the question of whether the federal government can compel people into commerce to better regulate the individual.” …
“In 220 years, Congress never saw fit to use this power, to compel a person to engage in commerce.” …
“The whole reason we do this is to protect individual liberty.” …
When Hull said she believed the decision not to buy insurance involved some “economic activity” that impacts the healthcare market (and that therefore, under the Supreme Court’s interpretation of Commerce Clause powers, Congress has the authority under the Commerce Clause, coupled with the Necessary and Proper Clause, to regulate), Clement reportedly responded that, despite this, Congress has no constitutional authority to force people to act to buy coverage.
Clement attempts to thread a needle.
In 2005, in Gonzales v. Raich, the Court held that under the Commerce Clause, aided by the Necessary and Proper Clause, Congress has the power to prohibit an individual from growing marihuana, not for sale, much less for sale in interstate commerce but instead for his personal use, because this effects the interstate market for marijuana. Only O’Connor and Thomas dissented. The challengers to the constitutionality of the ACA’s individual-mandate provision have focused on the “compel” part; sure, the Congress can prohibit activity something under the Commerce Clause, but it can’t compel activity under the Commerce Clause. But once you acknowledge that the failure to obtain health insurance impacts the interstate market for healthcare by directly impacting who pays the uninsureds’ emergency medical costs, you’ve pretty much conceded—logically, at least—that the Commerce Clause, assisted by the Necessary and Proper Clause, allows Congress to regulate this, irrespective of whether it does this by compelling the purchase of insurance or instead in some other way.
This is true whether the acknowledger is the lawyer for the challengers to the constitutionality of the law or instead the judges hearing the case.
All three of the judges on that panel acknowledged the obvious: that the failure to obtain health insurance impacts the interstate market for healthcare by directly impacting who pays the uninsureds’ emergency medical costs. And Clement didn’t deny it. So much for, “It boils down to the question of whether the federal government can compel people into commerce to better regulate the individual.” It boils down to that only if the federal government isn’t compelling people into commerce also to better regulate the healthcare-coverage market. Most laws, federal as well as state and local ones—including the federal one at issue in Raich—regulate the individual. Whether they better regulate the individual or not.
Clement understands this, of course, but also recognizes the need for a straw to grasp at other than the Commerce Clause one. Thus the civil liberties straw, which the judges themselves offered the statute’s challengers even before Clement (who argued after the federal government’s lawyer, acting solicitor general Neal Katyal, did) began his argument:
Marcus: “If they could compel this, what purchase could they not compel?” …
Dubina: “I can’t find any case like this. If we uphold this, are there any limits [on the power of the federal government]? …
Marcus: “I can’t find any case [in which the courts upheld the constitutionality of] telling a private person they are compelled to purchase a product in the open market…. Is there anything that suggests Congress can do this?”
Well, no, not precisely. But there are Supreme Court cases that upheld what, for civil liberties purposes, amounts to the same thing. They’re the cases that upheld the constitutionality of the Social Security Act and the Medicare Act by allowing the government to compel contributions to these separate funds, which are not part of the general tax revenue fund (OK, in theory, anyway), for the sole purpose of insuring a retirement income and health insurance for those over age 65. True, the specific “enumerated” Constitutional authority Congress used to enact those laws was the taxing power, not the commerce-regulation power. But that matters only if the commerce-regulation power isn’t broad enough to reach this. If it is—and under Supreme Court precedent, it is, if the failure to have health insurance significantly impacts the healthcare market, which it does—then this distinction is without a difference. You know. A meaningful (or as lawyers say, a material) difference.
In questioning Katyal, the judges were asking for a so-called “limiting principle,” a logical line beyond which federal regulatory authority cannot go. But if the issue is individual liberty, is it really logical to have that line depend on whether the compelled payment is for a product in the open market rather than for a similar product issued by the government? Isn’t the civil liberties issue really what the goal and effect are? That’s certainly the issue in most civil-liberties challenge to the constitutionality of a statute. Why isn’t it, here?
Blowing away the smokescreen erected by the focus on the individual-mandate provision’s use of private insurance—and isn’t it just a smokescreen, really?—why does this infringe on liberty more than the Social Security and Medicare taxes do?
The bottom line, in my opinion, is that the Commerce Clause gives Congress the power to regulate, including the power to compel, without infringing on civil liberties, if what Congress is compelling is what it could compel through its taxing power, without infringing on civil liberties. Congress couldn’t (to use the conservatives’ preferred example) compel Americans, via the tax code, to eat broccoli. Or to buy it. That pretty clearly would violate substantive due process rights, a.k.a. individual liberty rights, even if under the taxing power Congress otherwise would have that authority. But Congress could, for example, extend Medicare to all Americans and amend the Medicare tax law to pay for it, without violating the Constitution’s individual-liberty guarantees.
That’s the limiting principle. At least it should be.
Postscript regarding Paul Clement
In his May 8 article about Wednesday’s oral argument in the 11th Circuit in the ACA case in which Paul Clement is representing 26 states in challenging the constitutionality of the statute, New York Times reporter Kevin Sack wrote that those states are paying Clement $250,000 to handle the appeal in that court and eventually in the Supreme Court.
That’s a stunning amount, even though the amount each state will pay is relatively small. These are two appeals in a single case that involves, entirely, arguments of law. There is no trial transcript, nor trial-court orders on motions, nor volumes of business records—the things that usually raise appellate legal fees to astronomical heights. And the legal arguments are the standard ones being discussed ad nauseam in legal circles. Clement’s hourly fee on this will turn out to be something close to $1,000, I’d bet.
Maybe lines like, “It boils down to the question of whether the federal government can compel people into commerce to better regulate the individual,” as he told the panel on Wednesday, makes this guy worth his price. But if so, it’s only because the judges will assume that since he’s Paul Clement rather than, say, another lawyer, that line makes sense.
why does this infringe on liberty more than the Social Security and Medicare taxes do?
I have highlighted the key word here. To tax is OK. For the Federal government to compel you to buy something from another private party is not OK.
The Fed has the ability to tax you or any activity. Whether you choose to do or not to do is an activity.
I’m not sure why you think it’s okay, as a matter of liberty, for state and local governments to require you to buy something, yet it’s not okay, as a matter of liberty, for the federal government to do that. Unless, of course, the liberty you’re concerned with isn’t individual liberty but the state’s liberty.
To tax is okay. And to regulate markets is okay. But there are civil-liberties limitations on both powers. So why does it infringe more on liberty to compel the purchase of medical insurance from a private party than to compel the purchase of medical insurance through the government? Isn’t the civil-liberties issue here the “compel-the-purchase-of-insurance” part? What difference does it make as a matter of liberty that you’re compelled to buy the insurance from a private party rather than from the government?
Think about auto insurance and think that an ER is a road.
I’m not sure why you think it’s okay, as a matter of liberty, for state and local governments to require you to buy something, yet it’s not okay, as a matter of liberty, for the federal government to do that.
The limited powers of the Federal government are enumerated in the Constitution, and they do not include compelling individuals to buy something from private companies. That is the argument here. State and local governments do have more powers over the individual because they are closer to the people and theoretically more responsive. And if people don’t agree they can move to another state.
Like it or not, those are the facts. The Commerce clause and General Welfare clause have been stretched continually by the Federal government, but they have gone too far here. There are specified ways to amend the Constitution, but you just can’t ignore it.
Paying a premium to an insurance company is not a “tax.”
If Obamacare was set up as a single payor system, where people were taxed and then the government were to administer the insurance program, it WOULD pass Constitutional muster. After all, as you point out, that is how Social Security and Medicare work.
But it wasn’t set up that way. And the reason it wasn’t set up that way is that there is no way the citizens would have accepted it electorally. As it is, it is very unpopular with the people and would have failed in the Legislature save for some procedural tricks. So Obama tried to back door it, or do it in stages. Obamacare 1.0 was designed to fail to pave the way for LibCare 2.0 – single payor. Except that it is unconstitutional.
Yes, the argument is that the limited powers of the Federal government are enumerated in the Constitution, and they do not include compelling individuals to buy something from private companies. That’s the Commerce Clause argument—that the Commerce Clause doesn’t authorize the mandating of the purchase of a private product.
But under the Supreme Court’s interpretation of the Commerce Clause, that Clause authorizes Congress to regulate the healthcare market. Under the Commerce Clause, Congress can regulate who pays the healthcare bills for people who can afford insurance but don’t have it and then get others to pay the medical bills. Which means that under that Clause, Congress has the power to mandate the purchase of medical insurance as part of its regulation of the healthcare market, unless it violates some OTHER part of the Constitution.
The challengers to the ACA are making two separate arguments: that the Commerce Clause doesn’t authorize the mandating of the purchase of a private product, and that, even if it does, that mandate violates another part of the Constitution—the part that protects individual liberties. That—the second argument—is the argument that my post addresses. The first argument is an “enumerated powers” argument. The second argument is a civil liberties argument.
As for your claim that state and local governments do have more powers over the individual because they are closer to the people and theoretically more responsive? It’s a non sequitur. Even setting aside that the second part of that is a truism that isn’t true, what does that part have to do with the first part? State and local governments are closer to the people and theoretically more responsive and therefore are entitled to infringe on individual liberties? In what language is this a sequitur? And under what country’s constitution should you have to move out of your state in order to avoid violations of civil rights?
And, Sammy, if you don’t agree with what Congress does, you can move to another country.
The second argument is a civil liberties argument.
I see what you are saying here, and it is a good point. However, you of all people should know that a “good point” can be considered not at all in a legal case. (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”)
So it is not germane to this case that the States may have infringed on individual liberties, this is about whether the Federal government can infringe on liberties in this way.
Given the popularity of Medicare, I think extending Medicare to everyone would have been popular. And I think that’s what eventually will happen, once the costs of Medicare itself are controlled through politically acceptable means.
But the point of my article is that the civil-liberties argument makes no sense as a challenge to the mandate’s constitutionality, because that argument is simply that it violates individual liberty to mandate the purchase of health insurance, yet there’s no more imposition on civil liberties in mandating the purchase of health insurance than there is in mandating contributions to the Social Security and Medicare funds via the tax code.
As for the procedural tricks in enacting ACA, they were necessary only because under Senate rules, a supermajority of 60 votes was needed.
What happens to the individual that doesn’t buy insurance?
I was under the impression that those who do not buy insurance would be assessed a tax based on their income with a cap of 600 to 700 dollars. This would make things look more like a tax break than a mandate. Not unlike, say for instance, installing solar panels or having a child. You are not forced to do these things but if you do, your tax will be lower than if you didn’t. This would make it more of a 16th amendment question rather that commerce.
But seeing these arguments by the lawyers makes me think I was wrong.
This leads me back to my question, what happens to those who do not buy insurance? Would they be considered criminals? What about those who cannot afford insurance in any way, like the homeless?
Your understanding of the law is mostly right, Mike, although the statute doesn’t call it a tax because the Tax Code doesn’t raise everyone’s taxes and then allow a credit for the purchase of the insurance. It’s a penalty fee, even though the payment mechanism is through the IRS when you pay your taxes, so of course it’s effectively a tax. And you’re right that it applies only to those who can afford to buy insurance with or without the government assistance that is part of the statute. The statute provides for government assistance for people who otherwise can’t afford to pay the full premiums. I don’t know the specifics, but that’s my understanding of the statute.
I think your analogy to tax breaks for, say, installing solar panels is pretty accurate about the statute’s effect. Good call.
To me the mandate is in effect a tax that you don’t have to pay if you have insurance or are too poor to buy insurance, but the lawyers won’t make that argument. I am assuming this reluctance comes from their political masters, but I might be wrong–perhaps there is a good legal reason? Regardless, is a judge or justice forbidden to rule on this basis, even at the SCOTUS level?
The Democrats clearly, for political reasons, didn’t want to identify this in the statute as a tax, PJR. But, for the reasons I mentioned in responding to Mike’s comment, there really IS an important difference between this penalty and ordinary income taxes: Income taxes normally are determined categorically (i.e., against everyone within that income bracket), based on the taxpayer’s income and the source of the income (e.g., salary, rather than capital gains). Then the taxpayer gets credits and deductions from that categorical amount assessed against everyone based on their income and the source of the income. The ACA’s penalty doesn’t work that way. It’s not assessed categorically on income and then those who have health insurance get a tax credit.
Originally, in one of the two cases that were argued to the Virginia-based 4th Circuit Court of Appeals on May 11—it was the first of the ACA appellate arguments—the federal government had claimed that the penalty was a tax. In that case, the trial-level judge upheld the entire ACA as constitutional, but said that in his view the penalty is more like a regulatory penalty than a tax. The government dropped the claim that the penalty is a tax.
What happened next concerning this issue is strange and interesting. A post of mine from June 1 discusses the reason that the government originally claimed that the penalty is a tax and then dropped the argument—and that the three-judge appellate panel indicated in an order it issued after the oral argument that it is deciding this issue even though the government is no longer claiming this. My post, called “New wrinkles in the ACA litigation – Part I,” is at http://www.angrybearblog.com/2011/06/new-wrinkles-in-aca-litigation-part-i.html.
In essence, the issue raised initially by the government and now by the appellate panel doesn’t concern whether the ACA individual-mandate provision could be upheld under Congress’s taxing power if it can’t be upheld under Congress’s commerce-regulation power. It concerns instead an issue of whether a statute called the Tax Anti-Injunction Act removes “jurisdiction” (i.e., the legal authority) from the courts to even decide the constitutionality of the mandate provision until that provision actually comes into effect (or is about to come into effect).
The judges and eventually the Supreme Court justices can rule on whether Congress has the authority under its taxing power, if it doesn’t have that authority under its commerce-regulating power, to tax people who can afford to, but don’t, buy medical insurance—and to decide whether that in fact is what Congress did in the ACA—even though the government is not making that argument.
I don’t think that will happen, though. I think that […]
Thank you Beverly. That will teach me to travel and miss one of your postings. Your most powerful point was “the purpose of the taxing power is to raise revenue” which is a fundamental. This might override procedural similarities and comparisons to income tax provisions meant to encourage behaviors, like buying a new car or attic insulation. I have to pay more to the IRS if I don’t make such a purchase (an “inactivity”) but okay the comparison has major limitations. Thank you.
Your decision to buy or not buy insurance is an activity which can be regulated. Your refusal to secure insurance places upon myself and others a burden of having to pay for you in the case of illness or injury. In which case, your decision not to buy causes an activity upon the rest of soceity to care for your lame butt medically.
Medicare like the costs of insurance are mostly passed on from the helthcare industry.
“once the costs of Medicare itself are controlled”
Controlling Medicare costs will for the most part not control healthcare costs.
Interesting article here on how thw Ryan Plan is similar to the ACA in coercing people to buy insurance: http://www.slate.com/id/2292901/
I guess I am mostly on your side here.
What frightens me about Beverly is that she takes her rationalizations so seriously she imagines they are incontrovertible “logic.” Just like a Supreme Court Justice.
The sad fact here is the everyone reasons to the outcome they want. The reasoning itself is arbitrary.
But there is no need to worry. The Health Industry likes the mandate. So will the Supremes.
Now me, I think with a “single payer” we’d have a chance to control health care costs. With the government forcing me to give my money to the Health Mafia, not a chance. I can’t think of any rationalizations that prove Constitutionality one way or the other. But I do think we the people do need to maintain a decent respect for the rights of others to be left alone. In a world of shades of gray, I feel that Social Security and Medicare are “white enough,” and “individual mandate” is not.
And I feel that way about the State mandate to buy car insurance. Though even there the probability of my driving affecting someone else strikes me as more salient than the possibility of my “demanding” health care at the public trough.
i should be clear that i think auto insurance is a necessity. but if the state is going to require it, the state needs to provide it directly.
and i think sammy is wrong about one thing: “the people” would accept single payer. it’s the bought and paid for politicians that won’t.
If you don’t own a car, you’re not compelled to purchase auto insurance. ACA compels one to purchase for breathing.
decision [xxx] causes an activity upon the rest of soceity to care for your lame butt medically.
let xxx = to not exercise
let xxx = to smoke cigarettes
let xxx = to rock climb
let xxx = to scuba dive
let xxx = to jump in a cold lake after exercising on a hot day
let xxx = to purchase a car that is less safe than alternative options
let xxx = ski without a helmet
We have both been in the same court room where logic would dictate what the outcome would be given the argument. The only reason why I am where I am is because of that logic she applied.
I am posting on th ACA next up
i can’t even guess what you mean.
i like to think i am an old logic hand. that’s why i don’t believe in “logic.” i could argue with Beverly’s “logic” but i am too tired, and i wouldn’t have any more faith in my own logic. for what it’s worth her glossing over the difference between the government providing a service and taxing to pay for it, and the goverment requiring you to purchase a smiilar service “on the market” is simply not “logical” it works the same way most bad logic works: by ignoring, or being unaware of, distinctions that may, or may not, be crucial. and i missed her logical proof that requiring health insurance is different from requiring broccoli.
i used to watch courts. self deception was the order of the day. fortunately for the judges they got to make the rules, and the law, and the facts.
my current legal advisor tells me that the ACA is probably not unconstitutional. it’s just a bad idea.
i could agree with that. at least it’s not fooling herself or trying to fool me with bogus “logic.”
let’s see: research shows that if you eat broccoli every day you are 15% less likely to have a heart attack by the age of sixty. therefore the government can require you to buy broccoli, and a monitor will come to your home to make sure you eat it.
is that ridiculous? where do you draw the line. after all, the taxpayers are going to be inconvenienced by your heart attack, and your boss will be deprived of the work he can get out of you.
we can play this game for years. in fact we do. at some point the people will throw up. for a lot of people that point was social security. i could understand social security being debated as a good idea. i have a lot of trouble with it being “debated” dishonestly, by all sides.
and i do believe the people need to worry about granting their government the right to interfere in the private lives of even the people they don’t like so much.
I got mre court time than you current legal advisor which is why many attorneys will not talk to me. I know more practically than they do. This is the best outcome we can hope for right now.
Your refusal to secure insurance places upon myself and others a burden of having to pay for you in the case of illness or injury.
Not true in most cases. Many people, myself included, pay for medical care out-of-pocket. Not everyone stiffs their doctor. Also, one of the purposes of the mandate is to force young, healthy people into the pools. You are forcing people who voluntarily decide not to purchase health insurance because their expected medical costs are less than the premium to subsidize higher risk people.
that could be true. but i worry when legal scholars tell me its okay if the government forces me to eat broccoli.
you see, the law is not about justice or logic, it’s about power and giving people reasons to help them put up with any particular exercise of power… or to help the powerful fool themselvesl enough so they can sleep at night.
the trouble is that when you give the people bad reasons to put up with bad law, that makes it more likely they will put up with worse laws, and less likely they will go to the trouble of writing a better law.
Eating Brocolli vs. Purchasing Health Insurance: I think the distiction is pretty clear. The former is non-economic consumption/utility activity – eating – consumption of a product. The latter is not an ‘actaul’ activity at all, but a method of payment for an activity – seeing your doctor, having surgery, etc…, or more specifically, a pure financing activity – purely transactional. While consumption can not be legislated, the ‘commerce’ (buying and selling of goods), can be, part of which is how it is financed.
With healthcare I think people conflate the product with the method of payment. Health Insurance is a financing vehicle full stop. Nobody buys health insurance for its own sake, and you cant directly consume it. So the activity is healthcare not insurance.
The government already does regulate broccolli the product -via the FDA, dept of health, etc…, but has no say whether or not you must use it. What makes Insurance unique from other consumable goods is that you have no option to not use – the government cannot make you use healthcare, nor can you choose not to use it – its a natural law, not a consitutional one.
Moreover, the government does already regulate healthcare in a way that brocolli is not: For healthcare the seller is required to provide it, whether the consumer can afford it or not. For Broccolli, If you can’t afford it, you have to eat creamed corn (or some other alternative, not sure why I thought of creamed corn…). Because of the seller mandate (doctor, not insurance company), the cost of nonpayment is socialized – and freeriders exist, where they do not in the brocolli market. The individual mandate is a way for government to eliminate the freerider problem, by coercing the public at large to prepay for a service they will by definition consume.
Looking at it in this way, it is actually indescernible from car insurance – IF – everyone were born in cars…(those poor moms…)
i hope you don’t mind too much that i find your logic unpersuasive. I understand that you find it persuasive. I even understand that Beverly finds “it could have been a tax” to be the same as “it is a tax.”
nevertheless I find being required to buy something i don’t want to be more like being required to buy broccoli… for it’s health benefit, don’t you know.
To be honest, I am beginning to think it is more like requiring restaurant owners to serve people they don’t like. And since I was all for that understanding of the constitution, i’d have to work pretty hard to come up with a rationalization for why i find being forced to buy broccoli unconstitutional…. or at least more offensive.
Personally I don’t think you, or I, can find any “logic” that will command the respect of all parties, or even all large minorities. Better not to strain the law into something ugly that can be used against you next time. If “it could be a tax,” then make it a damn tax.
What it is is a way to use the power of government to enrich certain businessmen.
I dont mind, though I am not sure you understood “my logic”:
“nevertheless I find being required to buy something i don’t want to be more like being required to buy broccoli… for it’s health benefit, don’t you know. “
you dont want healthcare? too bad, because if you collapse on the sidewalk it will be thrust upon you. So the issue isn’t whether you want or dont want it, because the system is in place already that you will get it wether you want it or not. The issue is how you will pay for it.
So the use of the product itself (broccoli/ healthcare) is not being legislated, just that you pay for it
In fact, if you are worried about one day being forced to eat broccoli for its health benefit, your concern should be alleviated with ACA, because now noone else has to pick up the tab for the potential pitfalls of your gluttony, so you are free to eat or not eat anything you want without ‘the man’ looking over your shoulder! JK
Re: the restaurant – Arent ER’s already forced to take patients they dont want (those who cant pay)…to flip the question around, by “your logic”, why is the individual mandate any less consitutional then the mandate that doctors can’t turn away patients in an emergency?
Sammy or Beverly,
Exactly what does the State or Fed currently compel me to buy from a private entity?
Seriously – I know of nothing I’m forced to buy. I am not forced to buy autoinsurance since I’m not forced to own a car. Same with homeowners insurance since 1) I don’t have to own a home and 2) If I owned the home outright I don’t have to insure it (I’m required to insure becuase of a voluntary transaction with my mortgage company who insists).
What am I currently forced to buy from a private entity right now?
So why would it be constitutional for the Feds to do so? And if they can do that why wouldn’t they be able to force me to buy a gym membership (to lower Obamacare costs) or eat broccoli? This is an overreach into our civil liberties that I’m surprised you guts back.
If you want to call it a tax -fine call it a tax. And have the IRS collect it.
Islam will change
Sammy and run,
m.jed is exactly correct on what this allows. And what is amazing is that you can’t see it.
Islam will change
Social Security and Medicare are TAXES. If Obamacare had made this a TAX there would be zero legs to stand on as the IRS would collect it just like it does the rest of the taxes. But that’s not what Obamacare is doing.
I would love to here how you plan to curbe Medicare costs “through politically acceptable means”. Medicare for all is the left’s holy grail of a Federal Goverment controlled and operated single payer system. It wasn’t even proposed by the Democrats or Obama. So its not politically acceptable.
And the best doctors are already passing on medicare and medicaid patients since they don’t pay enough….
Islam will change
On einteresting question will be if the penalty is cheaper to eat than buying the insurance.(Assuming it all goes through).
Another intersting issue will be if an R wins in 2012 and decides to not defend Obamacare in front of the courts becuase the new President thinks its unconstitutional. And tthis gives the SCOTUS the ability to toss it.
Islam will change
I just wanted to say I’m 100% with you here. There really is no difference between forcing me to buy insurance and forcing me to buy broccoli. Or a gym membership etc.
Lets just make it a tax and be done with it.
Islam will change
you are making an error here. the purpose of “forcing the young and healthy” into insurance is so that they can essentially pay for the medical care they will need when they are old and sick.
meanwhile even if the odds are good that they won’t get sick… when it happens, it happens. and that’s when you wish you had insurance. one of the things wrong with american insurance is that it effectively insures you from month to month. making insurance cheap when you are young and unaffordable when you are old.
i’d be glad to see a single payer solve this problem, with a tax. you would not, i assume. but the alternative seems to be to invite the insurance industry to control our government. you aren’t going to like that either.
though my liberal friends are always happy to accept gifts from greeks, candy from strangers, and taxes from the rich.
we could have honest government and single payer and then government would negotiate prices.. and evaluate treatments… in a way that would bring down costs, as they have done in the civilized world.
granted that might be a little harder in the US of A, as we see with defense spending, but leaving the insurance company – health care complex in charge of the asylum is going to make it that much harder to control costs… and frankly looks to me like the beginning of frank corporate ownership of our government.
i was trying to indicate that i find “constitutional” arguments unpersuasive, since i was happy enough with integration, but not happy being forced to deal with the criminal insurance-health industry.
i will not let them force health care on me. but if i have to pay for yours, and allay your fears of having to pay mine, i would rather it be by an honest tax and not by a dodge that looks to me like turning the government over to the health industry.
i am sure that fear of high medical expenses is what motivates you to buy insurance and to perhaps hope for government help in buying insurance. when i look at the medical industry i see vast excesses of unneeded treatment, people who don’t take care of themselves, hypochondria, scare mongering, and an unbecoming … insane… fear of death.
I don’t want to have to play with such people.
for some reason i don’t particularly care if if i have to pay a tax… i figure it’s caesar’s money. but i object to being swindled by crooks, and to having the crooks run the government.
thanks. you may not wish to appear to agree with some of my more far out statements. but i accept that you agree with me that there is something “not right” about being forced to buy insurance… something that is not quite the same as being taxed to pay for something the government “provides.”
i would probably have objections to the way the government provided it. but that still seems like a more honest way to solve a problem that “the government” has decided is a national issue.
what you would need to do is convince me that the individual mandate is a “good idea.” i am not persuaded by “constitutional” arguments.
we do terrible things to people in the name of the law, and always manage to find them constitutional.
as for the er, and doctors, not being allowed to turn away patients. in fact they do.
but it is also the case that they exist as businesses because the government provides services they can’t live without. it is perfectly reasonable for the government to require they treat all citizens equally. not just in the sense of allowing the rich and the poor an equal right to sleep under bridges.
this may touch on the difference between regulating “commerce” and regulating individuals.
and it still isn’t subsidizing a business whose model is still “your money or your life.” and as much of your money as they can scare you out of whether you are really sick or not.
Well, that’s what I meant, run. The ACA aims to, and supposedly will, control medical costs. But a single-payer Medicare-like system for everyone would, of course, bring down the costs more, partly because the private middleman (the private insruance company) would be cut out, cutting out the private profits and lowering administrative costs.
Yeah. I wonder why this hasn’t been mentioned in the litigation. It should be.
There’s a difference, Coberly, in both fact and law, between the direct effect of an uninsured person’s receiving emergency medical treatment, which the government and people who have insurance pay for directly and immediately upon that person’s receipt of the medical treatment, and the indirect effects of living an unhealthy lifestyle or not eating vegetables. The law recognizes the difference between direct and indirect causation in all sorts of circumstances. In personal-injury/negligence law, for example, the negligence has to have been a “proximate cause” of the injury—that is, the negligence has to have been a reasonably direct cause and the type of injury has to have been reasonably foreseeable.
And that’s not even getting into the issue of whether the government’s compelling you to eat something would violate your constitutional substantive-due-process (liberty) right. Clearly, it would. But there’s no more reason why compelling you to buy health insurance from a private insurer violates your liberty more than compelling you to buy it from the government through the income tax mechanism.
I couldn’t agree more with you that this should have been done as an expansion of Medicare, and that that would have restrained healthcare costs. I hate it that the private insurers will benefit from this law. But the Dems weren’t able to enact a single-payer Medicare-like system, so they enacted this.
Coberly how are you being forced to buy insurance? You are perfectly free not to buy health insurance. In that case, you’ll be paying a fine and you will not have insurance. Is that not correct?
I happen to agree that this fine should be called a tax. Gutless politicians everywhere I look.
Why the focus on the private company? Why does it impact your liberty more because the compelled purchase is from a private company rather than from a government a la the annuity you’re compelled to buy from the government (Social Security) and the medical insurance you’re compelled to buy from the government (Medicare)? If the argument is that it is the compelled part that violates your liberty, why does this distinction matter, Sammy? Isn’t it just a gimmick to say, well, this is a compelled purchase from a private company?
And by the way, under the Act, the IRS will collect the penalty for failure to obtain the insurance.
No, the Supreme Court would appoint private counsel to represent the federal government and defend the constitutionality of the statute, buffpilot. Or a group of members of Congress might be allowed to step in as “interveners” and defend the statute’s constitutionality, which is what’s happening now in the challege to the constitutionality of the Defense of Marriage Act–although I question whether members of Congress have legal standing to intervene in the case (a complicated legal issue).
I agree with you, coberly. Except that I think we’ve had pretty frank corporate ownership of our government for a while now.
You’re spot-on re the benefits of single-payer, government-run medical insurance.
I’m not a legal scholar. And I said I would NOT be okay with the government forcing me to eat broccoli. (If it’s in a white cream sauce, that would be okay, though. Cheddar sauce is fine, too.)
there is a scene in a book i’d recommend if i thought it would do any good in which a man who is being groomed for membership in a kind of club is asked to do a number of seemingly meaningless tasks, one of which is to step on the face of wooden man nailed to a cross. he is not at all religious but he finds the task insulting to something within himself that he cannot explain. so he refuses and of course does not get to become a member of the club.
i had a similar experience once when the people where i worked asked me to do something that was both meaningless and demeaning. i refused at what i thought was considerable risk to my job.
ordering me to buy health insurance from people i consider criminals has a similarly revolting effect on me.
i have almost no patience with “legal reasoning.” i think Thomas More summed it up pretty well with his story about The Roman lawyer who solved the emporers problem with “first deflower her then devour her.” Distinctions in law are made by people who don’t give a damn about the distinctions that those without power might make.
I am sure I will do whatever the law requires me to do in this case, but i suspect that there will come a time when you or your children will regret being quite so eager to have this law upheld.
I was never going to be a member of the club anyway.
i will probably pay the fine.
i was just arguing in my incoherent way that i find the law offensive, and i find the “legal reasoning” unconvincing.
i think it is a mistake to use the power of government to subsidize private business. government power should be used to check and balance the power of business.
I think that the main point being missed by all of you is one made by Dickens many years ago. “If the law supposes that,” or in other words, if that is the law, “then the law is a ass.”
That particular provision of ACA, the individual mandate, is a means of resolving the issue that only a single payer system can truly address. If the cost of health care cannot be forced down because of a lack of political will to address the true causes of those costs, then the next best thing is to spread the high cost across a greater number of persons. That is, it becomes necessary for all people, including the healthy while they are still so, to contribute to paying the cost of the system. Given that the political will to enact a true single payer system, along with the lack of interest amongst the political class to address the root causes of high health care costs, the result is a kind of Rube Goldberg approach to the problem. Everyone must take part in the payment process, but within a corporatist paradigm. That was the cost of abandoning the single payer system of health care insurance.
To now expect the court system to understand that asinine solution simply compounds the illogical character of the ACA individual mandate provision. And why is the law “a ass.” as Mr Bumble calls it so? Keep in mind how our laws are first constructed. Why would a court system derived from the same political class as is the legislature be any more able to recognize the asinine character of the law?
too bad i think so slow you may not see this: you can’t argue both “proximate cause” and “the possibility that some day i may need medical care and force the government to pay for it” with a straight face.
oh, you can, but you should not be too surprised when others don’t buy it.
the law is an ass with a club. turns out we can’t do without law. but i try to remind my friends that calling for a law that gets them sorta what they want at the moment may be a dangerous game.
and the game of thinking up specious reasons for moral certainty that your cause of the moment is eternally and constitutionally just is perhaps more dangerous still.
i would say that i “approve” of the laws requiring integration, and i approve of social security because i can see the good that these laws do and the harm or inconvenience they cause is very minor or imaginary. i believe i can see that a “single payer” would cause somewhat more “harm” but that the good that would result would be significant…. for one thing it would bring down costs.
but the ACA, like school bussing, takes a “good cause” and interferes so drastically in the perceived rights of the people that it should be rejected…
i am sure a good constitutional reason could be constructed.
it was my belief that before the ACA the american medical establishment was on the way to falling of its own weight. Beverly and company like the ACA because it was better than nothing. I think a few more years of nothing…. and remember all those uninsured people were going to get their medical care paid for, by her argument, would have forced the country to embrace a real solution to the health care problem.
and it does bother me a little when “constitutional” crosses a big bright line… while people say, archly, well “it could have been a tax” so therefore it is just the same as a tax.
Both SS and Medicare are taxes. I’m not buying anything. I’m paying my taxes. Currently I’m not forced to buy anything from the Feds or state. I AM forced to pay my taxes. But if you remember Obamacare is NOT a tax. Obama himself practically turned himself into a pretzal saying it was not going to increase taxes.
So Beverly in if Obama and the Dems want to raise taxes to fund this – no problem, perfectly constitutional – but they have to call it a tax.
And yes I consider it a civil liberties issue to force me to buy anything at the point of a gun from a private company.
I’m curious why don’t you?
Islam will change
Why would either of those things happen? Where is precedent for the SCOTUS to appoint someone? If so, they could just grab some first year grad from North Texas U law school and ensure they get soundly crushed. (intentionally takes a dive)
And many complain that Congress does not have legal standing for DOMA why would they have standing for Obamacare?
Obama not defending DOMA was an incredibly stupid move. And sets the precedent for the executive not to defend laws he doesn’t like.
And Beverly is there anything that Congress can’t regulate via the Commerce Clasue?
Islam will change
In your own meandering way I still agree with you here. And PJR is correct about gutlass politicains in every direction. Seems like a bi-partisan desease.
What Beverly and the defenders miss is the precendent of making you buy something from a private vender. I have no problem with constitutionality of expanding medicare for all and TAXING everyone. If they had taxed everyone and wrote checks for $XX per person to each insurance company that would have been fine also. The Feds have the legal power to tax. Not the legal power to tell me what to buy on the private market. this is a vcivil liberties issue.
But this is NOT a tax. And that makes all the difference.
Islam will change
This is right on the money and my principle issue with the Obamacare mandate and the non-defense of DOMA:
“the law is an ass with a club. turns out we can’t do without law. but i try to remind my friends that calling for a law that gets them sorta what they want at the moment may be a dangerous game. “
Your on a roll these last few days!!!
Islam will change
“This is right on the money and my principle issue with the Obamacare mandate and the non-defense of DOMA:” Buff
And there is an excellent example of the conflation of government grappling with serious social issues and trying to satisfy disparate ideals concerning morality. It is difficult enough to choose representatives based on their support of various social issues, especially those with economic impact. On top of that trick we have to find candidates with acceptable views on strictly moral issues. Why else do we end up with a legislature filled to over flowing with deceit and deception, with members who have the moral proclivities of a gnat and the social out look of Ghengis Khan. I’m not a Christian, I would be the first person to welcome Christ back for he may have been the last god loving person who knbow to forgive, turn the other cheek and stay the hell out of everyone else’s business. What we truly need is a DABSA. Defense Against BullShit Act.
you’ll be glad to know Christ was not a Christian either.
But I don’t think he recommended staying out of other people’s business. The trick is to be like the Good Samaritan and do good. The reason this is a trick is that most people are very good at proving that what they want is what is good, and so good for you.
I am in a bit of a quandary here, as are you I think. Paying for Medical care in this country is sick. We need something better. Obamacare could argue that it is better or will be better. But the unholy alliance with the criminals running the current system smells really bad to me.
And the “individual mandate” looks like a huge enough departure from what we are used to thinking of as “what the government can do” that I would need a better argument for it than “it could have been a tax therefore it is a tax.”
But to be honest I think I am like most people: if I liked the result I could probably swallow the rationalization.
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