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.)
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!
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.
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.