DECEMBER 14, 2011
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Democrats didn’t see it coming: Before the passage of the Affordable Care Act in 2010, neither congressional leaders nor the White House anticipated that one specific provision—the mandate requiring individuals to maintain a minimum level of health insurance—would spark such a ferocious political and legal backlash. Yet, nearly two years later, controversy surrounding the mandate dominates the national conversation about health care reform. The constitutionality of the mandate is the central issue in the legal challenge to the Affordable Care Act, which the Supreme Court will take up this March. And overturning the mandate has provided a rallying cry for Republican opposition to President Obama.
The story of the individual mandate is replete with ironies. Obama spent much of the 2008 primary season denouncing the mandate, which Hillary Clinton supported. At the time, Mitt Romney was strongly identified with the idea, which had been central to the reforms he introduced as governor of Massachusetts. Four years later, Romney may be the nominee of a party that abhors the mandate, while Obama now defends it. Yet perhaps the greatest irony has to do with the mandate’s policy merits. Many liberals assume that universal health care requires an individual mandate; but there are arguably better alternatives. In fact, as the law stands, the mandate may simply not work because it lacks adequate means of enforcement.
For Democrats, then, saving the Affordable Care Act—legally, politically, and practically—could very well mean getting rid of the mandate. And it is not too soon to begin thinking through how—if the opportunity arises after next November—they might accomplish this.
THE INDIVIDUAL MANDATE was not always embraced by liberals. Indeed, the idea originated on the right. In 1989, Stuart Butler of the Heritage Foundation proposed an individual mandate as part of a plan for “assuring affordable health care for all Americans”; two years later, the economist Mark Pauly put forward the idea as part of another health care proposal. Those plans in turn formed the basis of a bill introduced in 1993 by Republican Senator John Chafee of Rhode Island and co-sponsored by then-GOP Minority Leader Bob Dole. At the time, the media often characterized the individual mandate as the conservative alternative to the Democrats’ proposed mandate on employers to pay for a share of health insurance. The Republican proposal was thought to represent a more individualistic, market-friendly approach. Although the 1993 Clinton health plan contained penalties for failing to insure—states could have charged people up to three times unpaid premiums or $5,000, whichever was greater—these penalties were of little significance to the program.
A decade later, personal responsibility was the core of the case for the individual mandate that Governor Romney made in Massachusetts. “It’s the ultimate conservative idea, which is that people have responsibility for their own care, and they don’t look to government ... if they can afford to take care of themselves,” he told reporters when he released his proposal in June 2005.
In the run-up to the 2008 election, many Democrats coalesced around the Massachusetts approach to health care reform in the hope that they could win the same broad support that Romney’s program enjoyed in that state. During the primaries, the health care proposals put forward by Clinton and Obama provided for the establishment of insurance exchanges, subsidies to the poor and near-poor, and other elements of the Massachusetts model. But, while Clinton’s proposal required everyone to maintain a minimum standard of coverage, Obama’s plan required only that parents sign up their children for insurance.
Obama’s stance on the mandate had clear political advantages in the fight for the nomination. It helped to reinforce the idea promoted by his campaign that, despite the preconceptions voters might have about a black candidate, Obama was more of a centrist than Clinton. The contrast on the mandate also fed into commentary tying together the candidates’ personalities and their policies, suggesting that Clinton was controlling and coercive—an uptight, bossy woman—while Obama was cool, relaxed, and easy-going. Obama emphasized the coercive character of the mandate in a January 2008 debate, saying to Clinton: “If they cannot afford it, then the question is: What are you going to do about it? Are you going to fine them? Are you going to garnish their wages?” The next month, an Obama mailer warned: “The way Hillary Clinton’s health care plan covers everyone is to have the government force uninsured people to buy insurance, even if they can’t afford it. ... Punishing families who can’t afford health care to begin with just doesn’t make sense.”
While attacking the mandate, Obama failed to offer any policy that would accomplish the mandate’s purpose: preventing people from opportunistically paying for insurance only when they need it. And, without any alternative, the reforms that Obama favored, such as elimination of preexisting-condition exclusions, would drive up the price of insurance by giving people an incentive to delay purchasing coverage until they were sick. Any system that allows people to buy insurance on the way to the hospital, and then to drop it when they get back home, is bound to be very expensive.
The debates with Clinton during the primaries forced Obama to become better versed in health policy, and they may have even had some influence on his thinking about the mandate. The position of the insurance industry may also have encouraged Obama to change his position. Not long after Obama locked up the nomination, Karen Ignagni, president of America’s Health Insurance Plans—the main lobbyist for the insurance companies—flew to Obama’s campaign headquarters in Chicago to say that the industry would accept a reform plan that included the guaranteed issue of policies with no preexisting-condition exclusions if the legislation also included a mandate that everyone be covered. In other words, the mandate was the price for the industry’s cooperation.
At some point that spring or summer, Obama’s view of the individual mandate apparently changed, though he said nothing publicly about it. At the beginning of July 2008, Neera Tanden, a longtime adviser to Clinton, became the Obama campaign’s policy director for the general election. At a meeting on July 2 in Chicago, as she recalled later in an interview, Tanden wanted to know what Obama thought of the mandate. “I kind of think Hillary was right,” he told her.
The mandate never became a big issue during the general election, and that continued to be the case for Obama’s first year in office. Yet, behind the scenes, the thinking inside Obama’s orbit was clearly shifting. In a little-noticed change, Obama dropped or marginalized his health policy advisers from the campaign and brought in advisers with old Clinton connections. The mandate became the assumed policy in the White House, though Obama did not have to reverse himself publicly on the issue because Congress took the lead on legislation. All the bills that came out of Senate and House committees included a mandate.
Meanwhile, both opponents of health care reform and undecided members of Congress focused on other issues, such as the public option, abortion, and coverage of illegal immigrants. The Blue Dogs, for example, never said they would vote for the legislation only if congressional leaders dropped the individual mandate. Nor did the mandate seem to trouble the Republicans whom Democrats hoped to win over. “I believe that there is a bipartisan consensus to have individual mandates,” Senator Charles Grassley, the Iowa Republican, said in June 2009, while he was still dangling the possibility that he’d vote for the bill. Since it wasn’t a major legislative stumbling block, Democrats may have assumed that the mandate wouldn’t become a political problem—though surveys showed it to be the one distinctly unpopular aspect of the legislation.
EVEN AS DEMOCRATS were lulled into thinking that the mandate was politically safe, they were equally blasé about the possibility that it could be challenged legally. During the congressional debate, legal experts consulted by Democrats all agreed there was no case against the constitutionality of a health insurance mandate—and they were right that there should be no case. Opponents of the law say it is unprecedented for Congress to regulate inactivity as opposed to activity under the interstate commerce clause, but the Constitution provides no basis for that distinction, and many regulations on commerce do, in fact, impose penalties for failing to act. Moreover, those without health insurance scarcely abstain from commerce since they leave billions of dollars of unpaid bills at hospitals and other providers.
The relevant question, though, was not what Democrats believed, but rather what Republican-appointed judges would say. As of the early ’90s, their decision would not have been in doubt. If the 1993 Chafee bill had passed Congress with substantial Republican backing, GOP appointees on the bench would almost certainly have upheld the individual mandate. After all, the mandate’s original purpose was to establish a private substitute for a government program; conservative judges were unlikely to find a form of privatization unconstitutional. At that time, the Supreme Court also set no effective limits on the use of the interstate commerce clause as a basis of federal authority.
But two things have changed since then. Conservatives now see the individual mandate not as a means of shoring up the market but as an unprecedented extension of government, and even justices on the Supreme Court are not immune to influence from shifting conceptual frameworks. Moreover, beginning in 1995, the Court set limits on the application of the commerce clause. That year, it overturned a federal law banning possession of firearms in a school zone on the grounds that there was no substantial relation to commerce, and in 2000 it struck down a law providing a private right of action for victims of gender-motivated violence on the grounds that gender-motivated crimes are not an economic activity and do not substantially affect commerce.
Neither of these decisions applies directly to the mandate; the Court has long held that insurance is an economic activity that Congress has authority to regulate. Nonetheless, the Court’s general movement in restricting use of the commerce clause should have made Democrats wary of resting the mandate’s constitutionality primarily on that basis when they could almost certainly have made the law bulletproof by framing it unambiguously under the taxing power of Congress. In one alternative, for example, the law could have imposed a tax to pay for health care, while providing an offsetting credit to those with insurance. The effect would have been identical to the mandate. To congressional Democrats, however, the use of a tax was politically inconceivable.
WHY WERE DEMOCRATS so determined to make the mandate part of the law in the first place? According to a view popular on the left, the main factor was the insurance industry, which wanted millions of additional customers. There was a grain of truth to this: As Ignagni made clear in Chicago in 2008, the industry did want a mandate, and, in the early stages of the reform battle, Democrats hoped to get the industry’s support. But, in the end, Ignagni’s group refrained from endorsing the Affordable Care Act, and the Big Five commercial insurers poured money into the U.S. Chamber of Commerce to fight it. If insurance-industry pressure were the sole or main impetus, the mandate might not have made it into the final bill.
Instead, the more decisive influence was a policy judgment, widely shared among Democratic advisers, that the mandate was essential to achieve near-universal coverage at a reasonable cost. That judgment reflected a simple comparison of what would happen with and without a mandate, with little consideration of alternative policies that might have achieved the same (or better) results while avoiding a political backlash and legal complications.
The rationale of the mandate is plain. If every year individuals can sign up for a policy without any preexisting-condition exclusions, they may have little reason to pay for coverage while they are healthy. Estimates by the influential MIT economist Jonathan Gruber and by the Congressional Budget Office (CBO) indicated that, without a mandate, the number of people remaining uninsured under the program would rise sharply. According to a 2010 CBO estimate, eliminating the mandate would raise the uninsured population in 2019 by 16 million; in addition, premiums paid by people who buy insurance individually would rise 15 to 20 percent because of adverse selection (that is, sicker people would be more likely to be insured). Those higher premiums would increase the cost of subsidies and reduce the popularity of the program.
But these estimates are highly speculative for one key reason: They assume substantial compliance with a mandate that has no enforcement behind it. Those who do not sign up for insurance are supposed to face a fine; but, if they don’t pay it, the government cannot impose any criminal sanctions, liens on property, or levies on income. The IRS only has one clear method of collection: withholding a tax refund. As Judge Laurence Silberman of the D.C. Court of Appeals wrote in his decision upholding the mandate, “[T]his provision’s success depends ... on voluntary compliance.” The individual mandate, in short, is a mandate only in the sense that a toy gun is a gun. There is no way to fire it, though some people will blink if it is pointed at them.
Even though Senate Democrats chickened out from framing the penalty as a tax, the CBO decided nonetheless that people would respond to it as a tax and that, even without any major sanctions, the law would establish a new social norm leading millions of mostly low-income people to pay for health insurance. The mandate ultimately rests on little more than a hope that individuals will comply with the law because law-abiding citizens generally do comply with laws and perhaps because of an illusion that failing to pay the penalties would bring the same enforcement measures as failing to pay taxes. But a mandate that is widely seen as illegitimate is unlikely to create the social pressures on which these estimates are counting. And it will not take long for people to discover that they can defy the mandate with impunity.
The one state with a mandate hardly offers much guidance. Massachusetts now has near-universal coverage, but, even before its recent reforms, only about 10 percent of its population was uninsured. Romney’s program passed with overwhelming support from both Republicans and Democrats in the state legislature. Business, labor, and the health care industry all backed the law. And, when the mandate went into effect, the agency in charge of the program ran TV ads with stars from the Boston Red Sox saying it was time to get health insurance. In some states today, by contrast, the uninsured represent 20 percent or more of the population, and, instead of elite-led support for the health care legislation, there is elite-led opposition. Under those conditions, open defiance of the mandate will be respectable, and compliance with the mandate may be much lower than the official estimates assume.
WHILE THE Affordable Care Act was being crafted, the CBO effectively shut down debate about the mandate by estimating high compliance with it and dire effects from other options. Perhaps as a result, Congress didn’t consider alternatives that might have worked—and might still.
My preferred alternative has two parts-one to make the law more forgiving, the other to make it more tough-minded. First, the government would allow individuals to opt out of the new insurance system without any penalty; people would do so by signing a form on their tax return acknowledging that they would be ineligible for benefits under the law for a fixed period—say, five years. Second, the government would raise the annual penalties for neither buying insurance nor taking the opt-out.
An individual opt-out would provide an escape valve for people who, rationally or not, see the mandate as a threat. With this added provision, people without coverage through a group or Medicaid would have three basic choices. They could use the new insurance exchanges to buy coverage, receiving subsidies if they qualified. They could take the five-year opt-out. Or they could do neither and pay the annual penalties, though those penalties would be higher, defined as a tax, and backed up with enforceable sanctions.
What if someone took the five-year opt-out and later reconsidered? They could then try to buy health insurance without the subsidies, use of the exchanges, or guaranteed coverage of preexisting conditions. In other words, they would face a market much like the one that existed before the law. I would not advise anyone to opt out. But, if they did, they would be no worse off than they are now.
There are also other alternatives to the mandate, such as raising premiums for individuals who fail to sign up for coverage during the initial open-enrollment period. (Medicare Part D, the prescription-drug program, works that way.) Or the Affordable Care Act could have delegated the responsibility of curbing free riding to the states—giving them an open-ended menu of policies to choose from, which might have included the mandate as well as these other options. A state that followed the example of Massachusetts and enacted a mandate would then do so under state law, eliminating any constitutional challenge that could be brought in federal court. The other advantage of this approach is that the states could experiment with different policies, and the nation could learn from their results. The CBO estimates have created a false sense that we know exactly what the effects of the law’s non-mandatory mandate will be, even though relevant empirical evidence is scant. Letting the states adopt different policies would have been an appropriately modest way to proceed.
TO BE SURE, given the current political climate, Congress is unlikely to revise the Affordable Care Act before November 2012. But that does not mean the subject is moot. Indeed, there are plenty of scenarios under which Democrats could end up needing or wanting to revise the law—and in a strong enough position to renegotiate it.
One scenario for revision begins with Justice Anthony Kennedy and the Supreme Court’s four conservatives overturning the mandate. But the Court may also follow the lead of Judge Brett Kavanaugh of the D.C. Circuit and a three-judge panel of the Fourth Circuit Court of Appeals in Richmond by ducking the issue and ruling that no one can bring suit against the mandate until penalties are due in April 2015. That would throw the question back into the political arena.
Even if the Court upholds the mandate, Democrats in Congress as well as the president may want to change it because of the popular opposition and practical difficulties of carrying out a mandate without effective sanctions. Much would then depend on the exact balance of power after the 2012 election. Assuming Obama wins a second term, Democrats could offer an opt-out from the mandate as one of their principal concessions in a deal with Republicans. The mandate now so embodies what opponents hate about Obamacare that eliminating the mandate in favor of an alternative, while leaving much of the rest of the program intact, would count as a triumph for conservatives. Conceding to them that victory could be a step toward consolidating the real gains under the law.
There is one final possibility: Conservatives may live to regret their opposition to the individual mandate. After all, the mandate began life as a conservative proposal aimed at strengthening the private insurance market. Even today, Republicans want to convert Medicare, which is paid for by mandatory payroll contributions, into a private market—a system that would require purchase of private insurance. If a conservative majority on the Supreme Court or a new Republican Congress and administration kill the mandate, they will indirectly undermine the legitimacy of other conservative ideas about privatized delivery of government benefits. And, years from now, when Democrats finally revive efforts to reform health care, they won’t go down the same road as in 2010. Instead, they may support a tax-financed public insurance system. If history takes that course, conservatives will have made the biggest miscalculation about the mandate. For now, though, Democrats appear to be the ones who miscalculated.
Paul Starr is a professor of sociology and public affairs at Princeton University and the author of Remedy and Reaction: The Peculiar American Struggle Over Health Care Reform. This article appeared in the December 29, 2011, issue of the magazine.
32 comments
Noah reviewed Starr's book in the NYT on November 20th. Read his review. I continue to be amazed that the experts refuse to even consider the most obvious (in a free market economy) alternative (to the mandate) for addressing the potential death spiral if insurers must cover pre-existing conditions: let the insurers figure it out. Why do so many young and healthy people buy life insurance when there's no mandate for life insurance? The experts dismiss the free market alternative with a wave of the hand. Why is that? Because they have no faith in the market? Or because they have no faith in insurers? Obama delivered the mandate (and all those young and healthy customers) to the insurers and look what he got in return: a kick in the groin from the insurers. So there's two good reasons to let the insurers figure it out: one, if private insurance is the price we must pay for universal coverage, then it's only just and reasonable to expect the private insurers to figure it out; and second, they are all bastards anyway, so let them sink into oblivion (good riddance!) if they are too stupid to figure it out.
- rayward
December 21, 2011 at 7:22am
Noah's review of Starr's book has nothing to do with my point. I apologize if I created that impression. I was merely recommending the review for Noah's insight.
- rayward
December 21, 2011 at 7:42am
ray I disagree about that, why fight the insurance companies (in fact, penalize them?) I hated the mandate then and now and always thought the simplest answer would be to tax and rebate, essentially like mortgage interest deductions. No one is being penalized anymore than people who don't have mortgages are being penalized. the taxes that the uninsured pay would then go into a fund to pay for the uninsured (a backdoor public option) It is also legal and we would not have had this nonsense with the supreme court. I simply can't believe Nelson would have crashed the whole system down over this solution.
- blackton
December 21, 2011 at 9:33am
We've been "letting the Insurers" figure it out -- and the result is 50 million uninsured, people dropped from coverage, people prevented from coverage for "pre-existing conditions", and the price of health insurance rising over 10% per year, regardless of inflation. The problem with Republican-backed mandates is that they don't place limitations on the Free-Market. If you mandate everyone has to buy insurance, but ALL the insurance is Free-Market insurance, you've just given the Insurance companies a captive audience who HAS to buy from them. The big benefit of the ACA is that the mandate is combined with cost-controls, and even a state-sponsored cooperative, to provide an alternative to the Free-Market. That is what the Republicans really hate. All this mis-direction argument that any Mandate is bad is just a States-Rights wolf in sheep's clothing. They'd LOVE a mandate, that would unfetter their Health-Insurance contributors and raise the Stock Market. They HATE the cost-controls.
- AllanL5
December 21, 2011 at 9:39am
Maybe Paul Starr was listening to different Democratic Presidential debates than I was, but the issue of the mandate and Obama's differences on it with Hillary was hardly a central factor in Obama's appeal or Hillary's weakness in the race. Sure, the issue was discussed in debates and in the respective back-and-forth on health care issues, but there was precious little focus on it in media analsis of the Democratic primary. There was even less emphasis on this issue in Obama's appeal to Democratic voters, who were mostly impressed by his rhetorical skills, good judgment about the Iraq War and contrast to Hillary's seeming cynicism and concious centrist political positioning. The one time that the mandate became a semi-major issue was when Hillary imprudently asserted that the government could enforce the mandate by garnishing the wages of those who didn't buy into insurance -- something that Obama quickly jumped on as a gaffe that would alienate every Democratic voter with an ounce of civil libertarianism and an issue on which Hillary quickly backed off.
- wildboy
December 21, 2011 at 11:50am
Excellent article. I think we will find that the mandate is constitutional, but bad policy. I'm not sure you need absolutely everyone in the pool in order to get the benefit of a large insurance pool, anyway. Contrary to CBO and the health insurers, almost everyone wants health insurance and will get it if they can get it. Want proof? Just take a look at the astonishing numbers of young adults (supposedly the age group that would not buy coverage if not forced to do so) -- over 2.5 million so far -- who have come onto their parents policies under one of the few Obamacare provisions to have actually taken effect. That number is certain to keep growing. Right now, there is an age limit -- 26 -- on being able to be included in the parents policy. Why not remove the cap? In fact, why not allow any family member's policy be the base policy for all family members. Creating this type f ease of coverage participation would also dramatically increase coverage availability and usage. Here is another idea. In almost all states auto insurance and workers' compensation insurance are "mandatory." However, you can opt out of the mandatory purchase if you establish The financial capability to handle the costs without needing the insurance. Very few people or businesses can afford the financial opt out, and almost no. E who can afford it takes it. But the choice is there, and it is based on the idea that the system should not reward freeloaders. As Starr says, there must be a certain amount of bitter irony in the White House that after they¢ caved to the insurers on the mandate, the insurers still ditched the WH at crunch time. But there is no excuse for them nt knowing that this would happen, because it s exactly want happened to Bill Clinton. Clinton asked the health insurers how they would design a health care system in 1993. He complied, and they ditched him (and Hillary, too)! So much for a Demcratic president getting advice from Republican business constituencies!
- CABChi
December 21, 2011 at 12:13pm
The individual mandate can be justified as good policy only in the context of the Rube Goldberg, and economically unsustainable, private insurance based system that comprises Obamacare. It can never be good politics. There's only one way to avoid this mess: a universal single-payer system. But Obama, the Democrats, and Starr, stiff-armed SP at the gitgo. After that, unhappiness over the individual mandate was inevitable.
- jrconner
December 21, 2011 at 3:07pm
What a bunch of off-point BS from a set of Blue Dog DINOs. If it wasn't the mandate, it would be something else that they and Repubs object to with respect to extending health insurance. Same for income tax rates, whatever. BHO's original problem was in not eliminating the Senate filibuster as Job 1 and passing an adequate stimulus package based on keynesian calculations. He then caved on universal health care (in part because of problems created by not doing Job 1). The rest is sordid history in which it really matters little for the next 5 years for the economy and Progressive policies if BHO is re-elected in 2012. Repub policies will dominate the US political scene until a hard-nosed Progressive is elected.
- drofnats1
December 21, 2011 at 3:12pm
"Opponents of the law say it is unprecedented for Congress to regulate inactivity as opposed to activity under the interstate commerce clause, but the Constitution provides no basis for that distinction, and many regulations on commerce do, in fact, impose penalties for failing to act." This casual assumption by those, mostly on the legal left, does not survive rigorous analysis. In fact, all regulations follow a certain logical construct: If Citizen A wishes to do X, then she must also do Y and can be penalized if she fails to do so. Regulations never take the form of: if Citizen A does not do X, she is subject to penalty. Simply put, the power to regulate X never implies the power to mandate X. Just a few examples: the state's power to regulate abortion does not imply the power to mandate abortion; the power to regulate gun purchases does not imply the power mandate gun purchases; the power to regulate an entity's building of a nuclear power plant does not imply the power to mandate that said enitity build it. Can anyone think of any counter-examples?
- jkodak
December 21, 2011 at 4:56pm
Insurers can still play a large role (complete with value add) in a market that requires insurance. Just as they do with car insurance. While a mandate isn't a bad thing on the surface, the correct mandate instead might be one such that if you don't have insurance, then when you finally get insurance, you coverage doesn't kick in for a while on pre-existing conditions. Of course that requires personal responsibility, and the ability to delay gratification. But it certainly would have side stepped this entire legal question. So, the offer to consumers might be this: "If you buy insurance before Jan 1, 2013, then you will be covered for future and pre-existing conditions. If you do not, then your coverage for existing conditions will not happen until you've paid premiums for 2 years, and that payment will only cover future expenses" That solves the death spiral problem. And in fact, it's how private insurance copes with it today at very large companies. For those still blathering on about single payer, know this: the economics you expect from single payer will not work. Single payer today (medicare) is a subsidized mess that farms out much of the work to private firms. And the gov portion of this is rife with fraud. So rife, in fact, that it makes private insurance look outright frugal. Oh, the claim denial rate for medicare is higher than private too. Go figure.
- seattleeng
December 21, 2011 at 5:05pm
seattleeng: "For those still blathering on about single payer, know this: the economics you expect from single payer will not work." I know actual evidence seems to have limited effects on this debate with some people, but aren't there plenty of other countries that use single payer with "economics" that "work" quite well?
- dsimon
December 21, 2011 at 9:12pm
jkodak: "Can anyone think of any counter-examples?" Paying taxes owed is mandated. If you fail to pay your taxes, you are subject to legal liability. And plenty of states mandate car insurance. (Please don't respond with "you don't have to own a car." In all but a few areas of the country, you really do have to have a car to have anything resembling a life.) And the seminal Commerce Clause case involved regulation of wheat, even wheat that was never going to cross state lines. In that case, there was the "inactivity" of not transporting wheat over the boarder. And how about public accommodations laws: you can't not serve people based on race, religion, etc. For more on the arguments against the activity/inactivity distinction, see the opinion by the conservative Judge Lawrence Silberman who upheld the mandate in the D.C. Circuit.
- dsimon
December 21, 2011 at 9:21pm
jrcronner: "The individual mandate can be justified as good policy only in the context of the Rube Goldberg, and economically unsustainable, private insurance based system that comprises Obamacare. It can never be good politics. "There's only one way to avoid this mess: a universal single-payer system." I suggest reading T.R. Reid's book "The Healing Of America," which looks at how other countries run their health care systems. There are plenty of examples of nations with mandates that seem to work quite well; indeed, it's a quality all of our peer nations have in common (single-payer is a kind of mandate as well, but not all mandates are single-payer). Non-single payer mandates are, I think, in effect in most of Western Europe, including the highly regarded French system.
- dsimon
December 21, 2011 at 9:27pm
dsimon: For that matter you failed to mention the requirement of 18 year old boys to register with the Selective Service. Alas, your examples are completely irrelevant to interpreting the meaning of 'regulate' within the commerce clause. Neither the federal taxing authority or the exercise of a state's general sovereignty (car insurance mandates) are laws or regulations written pursuant to the commerce clause. As for the wheat case you are referring to, Wickard v. Filburn, the holding had nothing to do with rejecting any activity/inactivity distinction, it held that intrastate commerce can substanitally affect interstate commerce and when it does, the feds can regulate it. And Silberman's opinion, with or without his conservative bona fides, is linguistically simplistic and completely false. One cannot conclude that the power to regulate implies the power to mandate. My prior examples disproved any such notion.
- jkodak
December 21, 2011 at 11:18pm
jkodak: "Alas, your examples are completely irrelevant to interpreting the meaning of 'regulate' within the commerce clause." First, you said "Regulations never take the form of: if Citizen A does not do X, she is subject to penalty" and asked for counterexamples. You didn't limit them to the Commerce Clause. Second, the wheat case Wickard v. Filburn is precisely on point as the leading Commerce Clause case. The "inactivity" of not transporting wheat across state lines did not impinge the federal government's ability to regulate that wheat. "the power to regulate X never implies the power to mandate X." Of course it does in some instances, since it's already been done. Surely states have the power to regulate insurance (and they do), and therefore the power to mandate it (which they have done); there has been no legal dispute as to the validity of these mandates. Massachusetts has done so with health insurance, and many others with auto insurance. The question is whether the federal government can do so. "And Silberman's opinion, with or without his conservative bona fides, is linguistically simplistic and completely false. One cannot conclude that the power to regulate implies the power to mandate. My prior examples disproved any such notion." I've already dealt with the last sentence. As for the others, it seems to me you're conflating two issues: whether the power to regulate necessarily excludes the power to mandate (which I think my examples show is clearly false) and whether there is validity to the activity/inactivity distinction. Perhaps you're arguing that there's some dependency between the two, but the issues need to be separated out. In addition, you haven't shown where Silberman is wrong. It would help if you provided a critique for us to analyze (saying it's "simplistic and false" doesn't tell us why it's false). Otherwise, all you're left with is you saying you're right and Silberman saying he's right, leaving no reason to choose between the two unless you also show where Silberman errs.
- dsimon
December 22, 2011 at 12:23am
Rayward - perhaps young people buy life insurance without a mandate because it's very cheap for them to do so? The same mechanics aren't at play in health insurance. Seattle - an interesting idea (don't cover pre-existing conditions), but one that is administratively difficult, and reopens the door to the existing games insurers play with preexisting. One of the most notorious being that pregnancy is a pre existing condition (often because it's "not disclosed") is used to wriggle out of paying for certain treatments. Denying care is also a strategy that will have a very short life, approximately until someone or their kid dies of an emminently treatable problem because they were denied care. However the concept of a penalty isn't without merit. The Australian model (retain private health insurance if you can afford to do so, or be taxed on your premiums if you lapse and rejoin later) might be worth considering.
- Nari224
December 22, 2011 at 8:01am
Dsimon's got a point--a number of countries have non-single payer mandates, including Japan, Holland, Switzerland and I think Singapore, etc. France is single payer.
- ballston
December 22, 2011 at 9:40am
dsimon: You are correct that my shot at Silberman was merely a characterization and not a complete argument. I thought it was a bit ancillary to our argument, so I didn't want to go off on a tangent. The point I am making about Wickard is that there is no question of activity there. A wheat farmer was selling wheat intrastate and the feds argued that this act affected interstate commerce to such a degree that it justified a federal law limiting how much he can grow and sell. The law applied to him not because he was merely a citizen, but because he was engaged in the selling of wheat. Continuing with the wheat analogy, if your interpretation of the commerce clause, as I understand it, holds, then the feds would also have the authority to order Citizen X to purchase, grow or sell wheat. Why? Because the federal government has the power to regulate in this area. You may think this is horrible policy, but you concede the federal government has the power. I am prepared to make no such concession. It is important to think about how the word 'regulate' is used. Yes, regulations do contain mandates and penalties, but only with regards to ancillary things. We use the term with respect to applying rules and limits to existing or pending activities. Thus a sovereign can can demand X, Y and Z from me before extending the privilege of allowing me to drive on public roads. You are arguing, again correct me if I'm wrong, that this power implies the power to make me drive X miles per week. I say that the power to regulate driving does not imply the power to mandate driving. The power to mandate liability insurance is merely an X, Y or Z referred to above. And if the feds were to mandate driving (of course a political non-starter), I am prepared to argue that not only is it not justified pursuant to the commerce clause, but is a violation of the 13th Amendment. Our government can't treat people like slaves and have them perform positive acts without a very compelling reason. This is precisely why requiring even very narrowly tailored positive acts within the criminal law is so constitutionally suspect.
- jkodak
December 22, 2011 at 10:16am
jkodak: "if your interpretation of the commerce clause, as I understand it, holds, then the feds would also have the authority to order Citizen X to purchase, grow or sell wheat. Why? Because the federal government has the power to regulate in this area. You may think this is horrible policy, but you concede the federal government has the power." Certainly the state governments have the authority, don't they? (Don't you agree that states can mandate just about anything they want, so their power to regulate does include the power to mandate?) It may be horrible policy, but they can do so, just as Massachusetts has the authority to require health insurance. So if the federal government can also regulate insurance, why can't it mandate it as well? Some have argued that this would allow bad policy, like the requirement that people buy broccoli. (Forcing people to eat broccoli might run into other constitutional concerns). Maybe it would. But states could already impose a broccoli mandate, and they haven't. Nor has it happened abroad: France doesn't have a baguette mandate, and Germany doesn't have a sausage mandate. Why? Because it would be dumb policy and democracy sometimes works. Sometimes we have to trust the political process to keep dumb things from happening rather than relying on constitutional restraints. I think this applies to the driving mandate hypothetical as well, as far as the Commerce Clause is concerned (though other constitutional prohibitions may apply, as with trying to impose an "eat broccoli" mandate).
- dsimon
December 22, 2011 at 12:22pm
dsimon: I agree that, as a state, Mass. has the authority to mandate all sorts of things from its citizenry so long as is doesn't contravene their own constitution or the U.S.'s. However, why do you think that is a reason to believe that "regulate" is inclusive of "mandate" and that therefore the power the regulate interstate commerce must imply the power to mandate insterstate commerce? I would invite you to do the following linguistic experiment: i.) The power to regulate X does not imply the power to mandate X. ii.) The power to regulate X implies the power to mandate X. Pick any X and I mean any X from the realm of law and public policy. You will find Xs for the former as easy as falling off a log. For the latter, it will be awkward to say the least. If abortion, gun purchases, nuclear power plant construction, the list goes on and on, is inserted for X, the first sentence makes perfect sense, but the latter is ridiculously false. Let's take your suggestion: taxes. "The power to regulate taxes is the power to mandate taxes." I wonder if a fellow citizen has ever uttered such a sentence and on the off chance that they did, I'm sure the listener did not understand the sense of it. This is because my logical construct for the term 'regulate' conforms to the way it is actually used. Yours and indeed Judge Silberman's does not. Please, my fellow citizen, as Paul Starr pointed out in this column, the mandate isn't really that necessary for the ACA. Do not interpret the commerce clause in such a way as to lay the legal predicate for a command economy. The precedent isn't worth the benefit. Sure you can argue that the people will never allow that to happen, but by this logic there is no need for the courts to protect any constitutionally guaranteed liberty. The people got it covered. No, if the people had it covered, constitutional law would be treated as a redundancy and not something we argue about incessantly.
- jkodak
December 22, 2011 at 2:08pm
"However, why do you think that is a reason to believe that 'regulate' is inclusive of 'mandate' and that therefore the power the regulate interstate commerce must imply the power to mandate insterstate commerce? " Because, well, maybe because the power actually exists at the state level, as you admit? I'd say existence is a pretty powerful reason to believe something is the case. And just because an entity hasn't done something before doesn't mean it can't do it. Also, just look at (ii), and put in "health insurance" as regard to Massachusetts. It works just fine, the antithesis of "ridiculously false." "the mandate isn't really that necessary for the ACA. Do not interpret the commerce clause in such a way as to lay the legal predicate for a command economy." The wisdom of the mandate is a policy question, not a constitutional one. As to whether it's "necessary," one thing all of our peer nations have in common is some kind of mandate in their health care systems, and they seem to work quite well. (And I don't see how Starr offers any more enforceable sanctions as the ones he criticizes, or avoids the large expenses of those who may have opted out and wind up uninsured and in the emergency room.) As for the "command economy" claim, those come off as scare words to me since many of our peer nations have health insurance mandates but nothing like a "command economy." Many nations have single payer which goes far beyond the ACA, and they have nothing like a command economy. We don't have to argue the issue in a theoretical vacuum; there are plenty of examples around the world we can look at, and these fears of health care regulation as a vanguard for a creeping government domination that will destroy a free economy just haven't happened. (Ronald Reagan said in 1961 that if we didn't stop Medicare,"We are going to spend our sunset years telling our children and our children's children, what it once was like in America when men were free." How long do we have to wait for this nefarious plot to materialize?) I agree that at some point the constitution must counter the will of the majority to preserve liberty. But it's a reach to claim that economic measures can and should be blocked. Justice Holmes dissenting in Lochner said that "the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." More generally, he wrote: "a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States." And I think it's difficult to see what liberty would be protected by striking down the mandate when the exact same result could be achieved by raising everyone's taxes by the amount of the penalty and then refunding it for those who have insurance. The latter would seem clearly constitutional, so I don't see the inherent liberty interest here. That seems to me very much unlike restrictions on speech, or indefinite detention without process, or warrantless wiretapping, or taking of property without due compensation.
- dsimon
December 23, 2011 at 9:53am
d: I think we are getting to the crux of the matter. I am asserting that a state's power to mandate health insurance does not derive from any perceived power to regulate (as you seem to do). Rather, the power to regulate, mandate or anything else under the sun derives from its general sovereign authority. In fact, your insertion of health insurance for the X doesn't work even at the state level. States typically regulate insurance purchases through special boards. Despite this power, it is not assumed that they can sua sponte demand that citizens make a purchase. In Massachusetts, the power to mandate health insurance required the passage of legistation (RomneyCare). That would not have been necessary if the state's regulatory board already possessed the power. Thus, as I have demonstrated in copious amounts, regulate does not imply mandate. The federal government of course does not possess this authority. All of its power derives from the constitution. It's power to legislate in the economic arena requires us to anaylze the commerce clause and thus make a reasonable interpretation of the word 'regulate'. A state's sovereign authority is not pertinent to this question. The rest of what you discussed was getting pretty far a field from this central disagreement so I will not comment on it except to say that when a particular constitutional argument would permit a parade of horribles, it is incumbent upon the proponent to explain why that is not so as a matter of logic. It is of no comfort to anyone to punt and simply say, in effect, oh, I'm sure it will not come to all that. If this was an intellectually respectable position, our constitutional law would be a complete mess.
- jkodak
December 23, 2011 at 1:32pm
"In Massachusetts, the power to mandate health insurance required the passage of legistation (RomneyCare). That would not have been necessary if the state's regulatory board already possessed the power." Of course it requires a law. The regulatory board itself would not have existed absent a law. Any regulation requires either a direct statutory requirement or a delegation of power to a board, both of which derive from a legislative act. I don't see why the method should matter. So the substitution works just fine. Coming up with a couple of examples to the contrary does not show that the contrary is true under all circumstances, as a matter of logic. "The federal government of course does not possess this authority...A state's sovereign authority is not pertinent to this question." The question you asked is whether governments can do Y. You say that the power to do X does not imply the power to do Y. I say it does. For that purpose, it doesn't matter whether we're talking about the state or federal level; it's a question about general government power, so state governments can serve as examples. Whether the act Y falls under the Commerce Clause is a different issue. (And isn't it abundantly clear that the federal government could mandate participation in Medicare For All? That's substantially more coercive than the ACA, isn't it?) "when a particular constitutional argument would permit a parade of horribles, it is incumbent upon the proponent to explain why that is not so as a matter of logic." Not at all. The Constitution allows all sorts of stupid things under majority rule. We could tax all incomes above $50,000 at 100%. We could mint pennies out of pure gold. We could prohibit transportation of any product across state lines. These would all be dumb laws, but they're all clearly constitutional. The fact that they would be disastrous doesn't mean I should make up some constitutional interpretation that would prevent them from happening. You wrote: "Do not interpret the commerce clause in such a way as to lay the legal predicate for a command economy." I could just as easily write: "Do not interpret the Commerce Clause in such a way as to lay the legal predicate for striking down a reasonable solution to our health care problems." Sometimes constitutional arguments get us results we don't like, and we have to live with them. A number of people think that the result in Citizens United was constitutionally correct while also recognizing that it's terrible for our political system. When that happens, we have to find a statutory way around it or amend the Constitution, not find a way to interpret the Constitution to avoid the bad consequences.
- dsimon
December 23, 2011 at 5:25pm
d: "You say that the power to do X does not imply the power to do Y. I say it does." I take this to mean that you are no longer receptive to argument about our main point of disagreement. So be it. As for the necessity to confront a parade of horribles, permit me one final analogy. Suppose a Second Amendment absolutist argued before the Court that since the text of the Amendment protects arms and is otherwise unqualified, all things that can be described as weapons are protected. It might occur to a rational jurist that the logical consequence of this argument protects an individual's right to own a nuclear weapon. I think it entirely appropriate for the jurist to question the absolutist on this point. A thoughtful question deserves a thoughtful answer. It doesn't deserve: "Oh, what a Red Herring! No individual currently owns such weapons and anyway, who would want one or even afford one. Besides, if some citizen should actually try to acquire one, well, we'll cross that bridge when we come to it." It's a different issue, but the logic is perfectly parallel. This kind of response simply will not do whether coming from our imaginary absolutist or from someone telling me the commerce clause gives the feds the power to order positive commercial acts of the citizenry in general. Rule of thumb: If a person making an argument is unwilling to seriously engage the consequences thereof, one of two things can be inferred: (1) the argument is crap; or (2) the arguer is ill-equipped to do the argument justice. In this case, I think it's more the former. Happy Holidays.
- jkodak
December 24, 2011 at 12:17am
"'You say that the power to do X does not imply the power to do Y. I say it does.' I take this to mean that you are no longer receptive to argument about our main point of disagreement." My point was that that claim does not depend on whether it's the state or federal government, which you seemed to dispute. "It might occur to a rational jurist that the logical consequence of this argument protects an individual's right to own a nuclear weapon. I think it entirely appropriate for the jurist to question the absolutist on this point." And to cite Justice Holmes again, the right of free speech obviously does not encompass the right to falsely yell "Fire" in a crowded theater (a point granted by just about all of the most ardent free speech defenders). But we're not talking about these extremes in this case, are we? It seems to me that the government could clearly require participation in Medicare under the Commerce Clause. The mandate is less "horrible" in that it at least offers choices and so is less coercive. Therefore, if there's a "horribles" limit, this mandate isn't it. So the "parade of horribles" argument fails here, it seems to me; you don't need to justify what is clearly not at the "horribles" extreme and falls within what is clearly allowed. That seems like a pretty sound argument to me.
- dsimon
December 24, 2011 at 12:54am
One more note on the "parade of horribles" argument. You write: "when a particular constitutional argument would permit a parade of horribles, it is incumbent upon the proponent to explain why that is not so as a matter of logic. It is of no comfort to anyone to punt and simply say, in effect, oh, I'm sure it will not come to all that. If this was an intellectually respectable position, our constitutional law would be a complete mess." But I provided several "horribles" that seem to be clearly permitted, no? Taxing income over $50k at 100%, minting pennies out of pure gold, prohibiting all interstate commerce: is there any question as to the constitutionality of these measures? No; they all fall under clear grants of congressional authority: to tax, to coin money, to regulate interstate commerce. So these "horribles" are dumb laws, but are not barred by the constitution "as a matter of logic." Indeed, they are clearly permitted, and the check on them from coming to pass is a functioning democratic process that would vote out or threaten to vote out legislators if they did something that stupid. The nuclear bomb example (as is the example of falsely shouting "Fire!" in a crowded theater and many others) is different. This "horrible" would be the result of a constitutional prohibition on government power, not a grant of legislative authority. It is in this situation where judges try to find a principled way of reading the constitutional text that allows the government the ability to avoid the horrible result, because otherwise there is no check aside from a constitutional amendment; they often read into the text some exclusion ("this is not the kind of speech the First Amendment was supposed to protect") or some form of a "balancing test," that permits governmental action (but note that even then that it only allows and does not require government action, and the "horrible" can still come to pass if the legislature chooses not to act). So the two situations seem to me to be very different. The "horribles" that may result from a constitutional bar on governmental authority seem far more serious than the horribles that can arise from clearly permitted governmental authority because there is a legislative check on the latter that would not exist regarding the former--unless one thinks that the three examples I provided somehow lie outside Congress's powers, but I don't think that's the case. So an expansive reading of the Commerce Clause doesn't scare me. The most "horrible" example critics bring up is the "broccoli mandate," not only do I find it not very horrible, there are several ways to address it. As I've already argued, the democratic process protects us against dumb laws (and rightly gives us the responsibility if we allow them). Others have argued that unlike health care, the broccoli market does not suffer from a severe imbalance of information with consumers or an adverse selection problem that could destroy the market entirely. But that argument is for another day....
- dsimon
December 24, 2011 at 9:48am
AllanL5- What cost controls are you talking about? Dhurtado
- NR143296
December 25, 2011 at 11:18pm
Jkodak says: "If Citizen A wishes to do X, then she must also do Y and can be penalized if she fails to do so. "Regulations never take the form of: if Citizen A does not do X, she is subject to penalty." Jkodak asks for counter-examples with regard to the second construct. How about if citizen A does not pay taxes, she is subject to a penalty? How about if Citizen A does not accept induction into the armed forces, he or she will be imprisoned? (Not currently the law, but I don't think its constitutionality was ever challenged.) In any event, I think the health-insurance mandate can be characterized in accordance with the first construct: If Citizen A wishes to consume health care (as virtually all of us do or will), then Citizen A must purchase health care insurance and can be penalized if she fails to do so. Dhurtado
- NR143296
December 25, 2011 at 11:41pm
dsimon: You still do not appreciate the extraordinary breadth of your agrument. I understand that consitutional limits on government action cannot be resolved through the democratic process and that the Supremes should thus be careful when doing so. But if this is going to be carried to the extreme of not seriously engaging the scope of the words that comprise our constitutional liberties, the constitution is a dead letter. Now, I have put a challenge to you that you are ignoring. If you are serious about exploring what regulate means, then you must engage the linguistic analysis. I have given you examples in which to imply mandate does violence to our senses. Do you have any examples in which not inferring mandate does violence to our use of the word? You contribution here, health insurance, is at best a matter of dispute between reasonable minds. I gave examples which no reasonable mind can dispute: abortion, gun purchases, driving a motor vehicle, building a power plant. If your interpretation proves absurd in numerous contexts and mine is never shown to be absurd. Intellectual integrity should require you to concede. Unfortunately, your policy preferences may be too powerful. Also, simply because a government has extraordinary powers in one respect and is therefore empowered to do even terrible things, doesn't mean it must ipso facto be supreme in all other realms. The silliness here is obvious: if we have the power to make war, why does the constitution prevent us from blasting that thieving school ager without due process of law? You may not realize it, but your arguments are those of a state supremacist.
- jkodak
December 27, 2011 at 12:13pm
Dhurtado: Dsimon and I were discussing this previously. Although there are tax regulations, you will amost never encounter a sentence like: "The power to regulate taxes implies the power to mandate taxes." This is because the term 'regulate taxes' has no currency. As I have argued previously here, regulate is almost always used with respect to controlling ongoing or contempleted private activities. You wouldn't appply it to a pure government function such as taxation.
- jkodak
December 27, 2011 at 12:33pm
Jkodak- I was responding to the following: "If Citizen A wishes to do X, then she must also do Y and can be penalized if she fails to do so. "Regulations never take the form of: if Citizen A does not do X, she is subject to penalty." I take your point to be that there are government regulations that mandate certain activities, but that such mandates occur only as conditions of activities in which citizens have voluntarily engaged. E.g., if you choose to engage in the manufacture of automobiles, the government can mandate that you include seatbelts, or catalytic converters. But the government cannot compel you to enter the business of manufacturing automobiles. I think that is largely true, but I also think there are some counterexamples, two of which I articulated. But even if we take as true that a mandate is constitutionally legitimate only where it is a condition of a voluntarily undertaken activity, the health insurance mandate satisfies that requirement. If citizen A wishes to consume health care (which virtually all of us do), then she must purchase health insurance and can be penalized if she fails to do so. Dhurtado
- NR143296
December 28, 2011 at 1:15am
jkodak: "If you are serious about exploring what regulate means, then you must engage the linguistic analysis." Then the linguistic analysis doesn't even need to include your "power to regulate implies the power to mandate" question because "mandate" appears nowhere in the Constitution. All we have to ask is whether the proposed law regulates interstate commerce, whatever its form. The requirement to have health insurance or pay a penalty is an insurance regulation, and health insurance is interstate commerce. So there's your linguistic analysis. "If your interpretation proves absurd in numerous contexts and mine is never shown to be absurd. Intellectual integrity should require you to concede." This is the parade of horribles argument, which I have addressed. I provided numerous examples of absurd results regarding other provisions which you apparently did not challenge as unconstitutional despite their obvious absurdity. So I don't know why you think the Commerce Clause should be an exception, and so I wonder where the call for intellectual integrity should lie. And, as pointed out previously, the Commerce Clause does encompass the power to mandate. That Congress has the power under the Commerce Clause to require restaurants to not discriminate on the basis of race has been established for decades; they are mandated to provide service. Perhaps you can come up with a rationale as to why mandates are allowed in some instances and not in others, but it sure seems that there is some power to mandate. "if we have the power to make war, why does the constitution prevent us from blasting that thieving school ager without due process of law?" Ah, because there is an explicit provision in the Constitution that provides for that? That's really a non sequitur, it seems to me. And last I heard, we hadn't declared war against any thieving school ager. Or maybe I'm just not getting your point here. "You may not realize it, but your arguments are those of a state supremacist." I don't think so. I don't see how my arguments would apply to attempts to restrict freedom of speech, or religion, or a whole range of freedoms we think are important. But I agree with Justice Holmes that the Constitution does not write into law any specific economic theories or requirements. There is simply no horrible liberty interest involved in the health care insurance mandate when (1) the same result could be obtained by raising taxes and then rebating the difference for those who have insurance, or (2) the government could "mandate" that everyone participate in Medicare. I don't know what you mean by "state supremacist" position when that position is less government-coercive than a clearly allowable alternative. (And I could just as easily say that opponents don't have a healthy respect for allowable democratic choice--though I don't think that's true.) Just wondering: why isn't it equally a "state supremacist" argument if one believes that Congress has the power to mandate non-discriminatory accommodations under the Commerce Clause?
- dsimon
December 30, 2011 at 12:25am