JONATHAN COHN FEBRUARY 3, 2011
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Is there an honest constitutional argument against the individual mandate? Of course there is. The constitution is ambiguous and open to conflicting interpretations.
But are the people making constitutional arguments against the mandate being honest? Count me as very skeptical.
As you probably know by now, many of the conservatives in high dudgeon about the individual mandate had no problem with it when it was a staple of Republican health care proposals. Several, including Senate Finance Chairman Charles Grassley, actually endorsed it as a reasonable demand for personal responsibility and essential component of universal coverage. Only after President Obama endorsed the mandate did they decide it was not just bad policy but an act of full-blown tyranny.
Was this epiphany? Or political opportunism? While I can’t be sure, I can make a pretty good guess.
But forget about them and think about the mandate’s more genuine critics: The lawyers, writers, and experts providing intellectual ballast for this crusade. Many of them have long histories of libertarianism. I don't share their views, obviously, but I have no problem believing their opposition to even modest extensions of government power is sincere -- and that, as a result, they think the individual mandate not just unconstitutional but even immoral.
What I don't understand is how these people can, on the one hand, reject enactment of the Affordable Care Act and, on the other hand, accept the existence of a program like Medicare. That is precisely what many of them argue and what Judge Roger Vinson stated in his opinion this week.
Both Medicare and the Affordable Care Act perform the same essential function: Providing access to affordable medical care in exchange for ongoing, fixed contributions based on income. The key difference is that Medicare historically required people to enroll in a government-run program while the Affordable Care Act will give people the option of enrolling in private insurance plans or, barring that, paying an income-related penalty to offset the eventual cost of their uncompensated care. From a conservative perspective, surely the Affordable Care Act is the lesser intrusion on liberty, because it allows more individual choice of payment and coverage while establishing less direct government interference with the health care marketplace.
Now, the mandate critics do see one other distinction between Medicare and the Affordable Care Act. Americans pay for the former via paryoll taxes and for the latter through either insurance premiums or the penalty. The former clearly falls within the constitution's taxing power but the latter, according to the critics, does not.
I think that's a pretty shaky distinction, for reasons I've explained and will soon discuss further. But even if you accept that claim, it's more an argument about rhetoric and labeling than high principle. (As Ezra Klein wrote on Wednesday, "I don't believe our forefathers risked their lives to make sure the word 'penalty' was eschewed in favor of the word 'tax.' ") When it comes to fundamental principles of liberty, the strident critics of the Affordable Care Act's mandate--i.e., the ones invoking the tyranny of King George III--should be outraged by Medicare's payroll taxes, too.
And most of them probably are. I can't read minds, obviously, but my hunch is that their objection isn’t to a mandatory scheme of private insurance. It’s to a mandatory scheme of any insurance. Or to mandatory schemes in general. The problem, in other words, is the “mandatory” part. And that implicates Medicare as much, if not more than, the Affordable Care Act.
Of course, these thinkers on the right know the public won't entertain moral objections to Medicare any more than the courts will entertain constitutional ones. It's settled law and, for the most part, settled policy. So they don't challenge Medicare, except to argue for privatizing it--which, as it happens, would turn Medicare into a program that looks almost precisely like the Affordable Care Act. Gee, do you think they'd argue that's unconstitutional too?
Wait, don't answer that until you've read part 2.
Update: I added a quote from Ezra Klein, whose item about the liberty questions of the mandate is well worth reading.
11 comments
I have a bargain for those who would look to the founders, including Vinson's favorites Madison and Hamilton, for determining whether the mandate is constitutional: if you get sick, accept the same medical treatement as the founders would have received. Of course, the typical treatment for most maladies was leeches. It's inexpensive, especially compared to modern medicine, though many would refuse the treatment because of the "ick" factor, so I suppose we would have to adopt a mandate anyway.
- rayward
February 3, 2011 at 7:48am
I would note that in Jacobson v. Massachusetts the Supreme Court upheld mandatory vaccinations saying:
- Nusholtz
February 3, 2011 at 8:22am
Yes, this has been my thought as well. What sense does it make to say that the Constitution prohibits a mandate to purchase a service on the market but allows the government to take that same service off the market, provide it itself, and force everyone to pay for it through taxes? Under such a reading, the government is constitutionally obligated to take an all-or-nothing approach, which is arbitrary and incoherent. Also, I agree with Klein that surely the constitutionality of a legislative enactment must turn on its substance rather than its label. The anti-health-care legal opinion places a lot of weight on the fact that the mandate was referred to as a "penalty" rather than a "tax." Having the case turn on that distinction is indefensible.
- JakeH
February 3, 2011 at 10:50am
Well, gosh, to the Tea-Party if they could get the Supreme Court to find Obamacare unconstitutional, and wipe-out "Entitlements" at the same time, that might be a win-win. Until they discover the "Entitlement" they just wiped out is Medicare. I still remember the "Keep your Government hands off my Medicare!" signs.
- AllanL5
February 3, 2011 at 12:55pm
JakeH, while I may not find it very persuasive. there is an argument to be made that these sorts of distinctions matter. First, while I am not well versed on legal precedent re: the purpose of a tax, to my mind it is to raise revenue, not to penalize certain behaviour. Yes, we do have a lot of tax=spending policy that rewards certain behavious with tax deductions & credits (kids, mortgages, etc.). So, it does seem that using tax policy to induce behaviour is well established. And yes, as I think of it, we tax tobacco products as a "sin tax;" though with tobacco, those taxes are linked as revenue to offet public costs for health risks of smoking. The penalty for not carrying health insurance is not really a revenue raising maneuver, but it is a fine for breaking the law. Unlike Medicare payroll taxes, which are revenue raising measures to pay for a public health insurance program (though really a public/private hybrid, but whatever). To properly frame the choice, Medicare (the all) is a clear choice, do we want to pay taxes to provide health insurance to older Americans? In the same way, a true universal health insurance system would provide a clear choice. The mislabeling of a penalty as a tax clouds this sort of choice. That being said, I am not convinced this makes it unconstitutional, as the commerce clause is broad enough to encompass federal regulation of health insurance. But from the point of view of seeking to hold govt accountable, spending months designing a penalty, denying it is a tax, then marshalling legal arguments about taxation authority do undermine government accountability. So this is not something so easily dismissed, though not a fatal flaw. The all or nothing appraoch has the benefit of forcing government actions & means to be clear & consistent with their goals & ends, and so has some benefit. It is just that given the history of pervasive federal involvement in regulating & prodiving health insurance that the libertarians are a tad bit late to the game, they needed to win these arguments in the Great Society days
- markentel
February 3, 2011 at 1:33pm
well said Mark
- ds111
February 3, 2011 at 2:02pm
I was opposed to the mandate all along and I might end up being right about it. They simply should have done a tax and rebate plan, which is certainly Constitutional. If the Supreme Court strikes down the bill because of the mandate who the hell cares how logical it is or how much you think it is necessary, forcing people to buy a private good or service is vastly different than taxing everyone and rebating those that did. Those that refuse to buy insurance will be financing themselves and others who refuse to buy when they end up using ER's. In a sense, it is a backdoor public option. Look, you can give people a tax credit for buying a house, but try penalizing those that don't. Even if it comes down to the same thing in reality the perception of it freaking would make people nuts. I think Democrats were really, totally stupid about it. It could have been foolproof but there is a very strong chance the whole thing can come crashing down because of arrogance. The provided the take no prisoners Republicans a big enough loophole to hang the Democrats with. If only Cohn and the other insurance reformers understood this long ago we would not have to depend on how Justice Kennedy decides to rule. By the way, I don't buy the bit about "inactivity" I don't have a car yet a portion of my taxes goes towards highway repair since I manifestly benefit from the existence of roads even if I never personally use them. The same with health. Public health affects me even if I never use a hospital, in fact such things as mandatory vaccinations helps me not having to use hospitals so I am absolutely in favor of a tax because there is no such thing as healthcare "inactivity." But forcing me to buy from a private business is a step too far. I simply can't understand the inability of most Democrats to see this.
- blackton
February 3, 2011 at 2:22pm
markentel, I think you do a pretty good job of knocking down the conservative position even as you defend it's legitimacy. The tax code, as you say, is commonly used to encourage or discourage behavior. This isn't a criminal or misdemeanor fine for "breaking the law." The penalty, or whatever you want to call it, is assessed in your annual income tax return, not in a criminal court. If you do x, you pay higher taxes than if you do y. In this regard, it's similar to countless tax incentives. The government could just as easily raise everyone's taxes by $800 and offer an $800 tax break for buying insurance, and the outcome would be exactly the same. That's essentially what it's doing. Does it make sense to have the constitutionality of the bill turn on such a trivial technicality of language? I don't agree with your point about transparency in the democratic process. There's no hiding the ball here. The plan we have marks a substantive compromise between those anxious to see health care expanded while containing costs (which would best be accomplished by single-payer) and those who regard single-payer or something similar as requiring excessive government involvement. This process was amply debated in public over the course of many months, during which the mandate and its substantive operation was never disguised. So I think we have to pretty firmly reject any suggestion that the process, while messy, was somehow underhanded or secret or pervaded by some sort of trickery. This messy compromise results in a more complex law than single-payer, but the Constitution does not plausibly prohibit complexity or messiness. It imposes no page limit. It imposes no efficiency or elegance requirement. It doesn't mandate "clear choices," nor does it constrain political speech and advocacy. Indeed, it mandates the opposite of those things -- a free democratic process (which is inherently messy) and wide-open debate about it. It imposes no rule that legislation be intellectually congenial or wholly consistent with any particular policy or ideological outlook. Such requirements would amount to prohibiting federal legislation, because sausage-making is messy business. Putting aside debates about legal precedent concerning the interstate commerce clause and Congress's taxing power, I think the central question for laymen and lawyers alike is whether the mandate imposes an undue burden on individual liberty. In answer to that question, I return, as you do, to the Great Society as well as the New Deal, and my answer is, roughly, if *this* is too great an imposition, surely those things were even greater impositions, and yet they're constitutionality is firmly established and unquestioned.
- JakeH
February 3, 2011 at 2:34pm
"But forcing me to buy from a private business is a step too far. I simply can't understand the inability of most Democrats to see this." I don't see it, because forcing me to choose among privately-provided services is less of an imposition than forcing me to buy one choice from the government, which is constitutional. Why isn't the latter "the bridge too far"?
- JakeH
February 3, 2011 at 3:03pm
I don't see it, because forcing me to choose among privately-provided services is less of an imposition than forcing me to buy one choice from the government Because no one is forcing you to "buy" anything from the government. If you don't want insurance, don't buy it. Paying taxes is the price of civilization and citizenship, if you don't want to pay taxes then live in the woods or on the streets. If you want to change what taxes the government imposes, then run for office or vote for someone who believes as you do, but don't tell me I have to either buy from Prudential or Blue Cross and if I don't I will be fined. This takes away any bit of negotiating power I have with insurance companies. Without a public option I anticipate insurance companies will proceed to shit all over everyone even more, just like the damn cable company does. If I choose not to buy insurance and go to the hospital I will still be billed, I get this. And government has the right to tax me in anticipation of this if I don't have the money to pay. The only reason there is no public option is because the insurance companies want to take as much from the American people as they can and the politicians are unwilling to go up against them. Tax and rebate with a public option gives people a true choice. They can not affect privately owned insurance companies (except through regulation) but they sure as hell can affect a public one. Hell, even tax and rebate without a public option is a choice since that is a backdoor public option in that everyone will be guaranteed care and everyone will pay.
- blackton
February 3, 2011 at 5:17pm
Dear Jon: As I think you know, but do not mention in this essay, there is the honest objection to the individual mandate from the left single payer perspective that makes a clear distinciton between the government requiring you to buy a product from a private for profit company (a product with excessivley high overhead and inherent defects due to its being a private for profit product) which is the mandate, and using tax revenue to directly provide a public benefit (Medicare, expanded and improved Medicare for All). The mandate uses the police power of the state (in the legal sense; whether semantically a tax, fine or other penalty does not matter) to mandate you to buy from a private for-profit third party. That really is different from a government tax to provide a government service. This is another opportunity to also ask you to address the question as to why philisophically and/or legally this is not analogous to a "taking" under eminent domain. The individual mandate, especially without a strong public option alternative is like the terrible Kelo decision, whereby the Supremes confirmed the use of eminent domain to transfer land from one private owner to another to further general governmental interest in economic development. As with Kelo, honest libertarians and serious liberals/progressives/lefties can agree that the individual mandate is wrong (if alas, legal).
- DrSteveB
February 3, 2011 at 6:06pm