In an open thread, Ron and Rob discuss the prospect of a Constitutional challenge to health care reform, and in particular to the individual mandate:
Ron: Anybody have any idea how this might turn out? I’m trying to think of anything else the government forces me to buy. I have to buy car insurance if I buy a car, but then I don’t have to buy a car and if I don’t I don’t have to buy car insurance. I’m trying to think of anything that the government forces me to buy purely for the privilege of living in the U.S. and I’m coming up short. […]
Robert: As for how the court challenge will go – I’m inclined to think the courts will be fairly sympathetic to the individuals not wanting to make the payments. The other side’s interest amounts to “We really really want health care reform and making people buy insurance is the only way we could find to make the political deal work”. That’s good enough for legislation, but not good enough to override people’s rights.
Of course, the government isn’t going to force RonF to buy anything. My possibly mistaken recollection is that Ron has a job that includes health benefits; if so, the individual mandate wouldn’t apply to Ron. But if it did apply to Ron, Ron still wouldn’t be forced to buy health insurance; he could always elect to pay a tax instead.
The constitutional arguments about the individual mandate hinge on two questions: whether or not Congress has the authority to create an individual mandate as part of health care reform, and whether or not Congress has the authority to tax individuals in this way. In both cases, the answer seems to be yes.
Conservatives have argued that the commerce clause doesn’t give Congress the power to mandate individual’s personal decisions. Jonathan Adler, writing at the conservative legal blog Volokh Conspiracy, writes:
As much as I oppose the various health care reforms promoted by the Obama Administration and current Congressional leadership (and as much as I would like to see a more restrictive commerce clause jurisprudence), I do not find this argument particularly convincing. While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)
Congress’ power to tax individuals is extremely well-established.
For further reading, see Michael Dorf’s articles at FindLaw (part 1, part 2); this statement from Max Baucus; Jack Balkin on taxing authority; the general discussion at Volokh; and especially this debate between David B. Rivkin & Lee A. Casey, and Jack Balkin.
But what about the Supreme Court — couldn’t they decide health care reform is unconstitutional? Remember Bush v. Gore — it’s within the Supreme Court’s power to make transparently partisan and unprincipled decisions.
Yes, the Court could overturn health care reform. But they probably won’t. At Volokh, conservative legal scholar Ilya Somin writes:
Current Supreme Court precedent allows Congress regulate virtually anything that has even a remote connection to interstate commerce, so long as it has a “substantial effect” on it. The most recent major precedent in this field is Gonzales v. Raich, where the Court held that Congress’ power to regulate interstate commerce was broad enough to uphold a ban on the use of medical marijuana that was never sold in any market and never left the confines of the state where it was grown. This regulation was upheld under the “substantial effects” rule noted above. As I describe in great detail in this article, Raich renders Congress’ power under the substantial effects test virtually unlimited in three different ways:
1. Raich holds that Congress can regulate virtually any “economic activity,” and adopts an extraordinarily broad definition of “economic,” which according to the Court of encompasses anything that involves the “production, distribution, and consumption of commodities.”
2. Raich makes it easy for Congress to impose controls on even “non-economic” activity by claiming that it is part of a broader regulatory scheme aimed at something economic.
3. Raich adopts so-called “rational basis” test as the standard for Commerce Clause cases, holding that “[w]e need not determine whether [the] activities [being regulated], taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding.” In legal jargon, a “rational basis” can be almost any non-completely moronic reason for believing that a particular claim might be true.
Any of these three holdings could easily justify a federal requirement forcing people to purchase health insurance.[…]
…it is highly unlikely that the Supreme Court would invalidate a major provision of the health care bill, should it pass Congress. In addition to requiring the overruling of Raich and considerable revision of other precedents, such a decision would lead to a major confrontation with Congress and the president. The Court is unlikely to pick a massive fight with a still-popular president backed by a large congressional majority. Of course, it is still possible that the Court could invalidate some minor portion of the bill on Commerce Clause grounds. But even that is unlikely so long as the majority of justices remain committed to Raich. Five of the six justices who voted with the majority in that case are still on the Court. The only exception – Justice David Souter – has been replaced by a liberal justice who is unlikely to be any more willing to impose meaningful limits on congressional power than Souter was.
Even if you don’t buy that the Court would be unwilling to pick a major fight with the other two branches — or even if you don’t buy that Obama is still popular, or that Democrats will continue to hold a significant majority in Congress1 — it’s still unlikely that a Court with five justices who voted for Raich plus Sotomeyor, will overturn Raich.
- And by the way, if you’d like to discuss these questions, please take them to an open thread. [↩]
I agree that they CAN under the constitution force us to buy commercial grade health insurance. I’m just not sure it’s a good idea.
I have used the analogy of “what if the government had bailed out GM by forcing us all to go into debt to buy the WORST car that GM made, just because it was the only one we could hope to afford?”
Make me buy into Medicare, sure. Make me buy into a single-payer plan. Give me a federally constructed decent commercial plan with a 1% profit cap.
But DON’T make me buy a crappy product with 30% profit for Aetna.
Perhaps so.
It seems to me that this prospect ought to fill you with abject terror rather than pleasure that your legislation might have a chance of taking effect. If Congress may regulate our economic choices to this degree, without Constitutional defense, then what will be the bulwark that stops future conservative or libertarian leaders from trampling on your life choices?
To be clear, Adler believes health care reform is indeed unconstituional, just that under the precedent set, its unlikely to be found as such. Important distinction. Its sort of like beliveing seperate but equal is unconstitutionl, but under Plessy v. Ferguson it isn’t.
Adler:
The gist of Adler’s argument for unconstitutionality is here:
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Of course, the government isn’t going to force RonF to buy anything. My possibly mistaken recollection is that Ron has a job that includes health benefits; if so, the individual mandate wouldn’t apply to Ron.
What if I was young and stupid and still thought I was invulnerable and declined to buy my employer-offered health insurance?
But if it did apply to Ron, Ron still wouldn’t be forced to buy health insurance; he could always elect to pay a tax instead.
That seems like sophistry to me. Maybe not to a lawyer. Maybe it’s legal, for all I know.
RATS I forgot my all purpose observation these days when anyone brings up the whole “what government can and can not do” conversation.
They can kidnap and torture people now, and get away with it. They can even murder you.
If that’s on the table, then they can take anything from anyone they want. “Right or wrong” aside. Power can do what power chooses to do. The only difference between an American politician and Joseph Stalin is the scale of vision and goals, once they can kidnap and torture you at will.
The only difference between an American politician and Joseph Stalin is the scale of vision and goals, once they can kidnap and torture you at will.
We have not reached the point where an American politician can kidnap and torture someone at will, and not have to worry about, eventually, explaining his motives to someone. As far as I can tell, if a politician needs to have someone disappeared and abused, he is better off doing it the same way as the rest of us – by subcontracting to organized crime.
When the government is on the hook for (more) billions upon billions of health care expenses, and has the right to regulate behavior as long as it puts it within a framework – how long do you think it will be before it’s illegal to be fat?
The big problem I see with the choice of buy health insurance or pay a tax is that it’s one of the rare taxes that the US has had on people for simply being citizens. The mandate on buying car insurance isn’t the same; it only applies to people who drive. Taxes like income tax and sales tax are close, but they specifically tax actions, albeit ones that almost every person does. Is this unconstitutional?
(The other problem : this is a hugely regressive tax. Many people have enough money such that their insurance premiums will be a drop in the bucket, while others could possibly impoverished by mandated health insurance. This issue, however, may not have constitutional implications; I just think it’s a horribly bad effect.)
Does anyone know how that tax will be distributed? Will it go into the general fund, or be doled out to some health-related fund?
Anyone in this country (at least according to GW Bush – not generally my source of choice) can walk into a hospital and get emergency treatment, even if they have no insurance. Society shies from turning away people when they are bleeding to death – but that care has to be paid for by everyone.
To compare it to the auto insurance analogy: if you drive a car you may cause damage that you can’t afford without help. If you have a human body someday you may have an illness you will not be able to afford without help. You could argue that with a car you can cause other people expense much more easily . . . but if society will not let you go untreated in a medical emergency, then you can easily cause other people great expense.
Also, people who have health insurance (and use it) benefit everyone – by getting prevention and treatment for infectious diseases. (Maybe this should have been socially-engineered better – and give everyone a tax break who DOES have insurance!)
It seems that the tax is conceptually justifiable on those bases (even if the SCOTUS determines it is not constitutional).
Robert and Marmalade see the same thing but from different perspectives. Since government is now so entangled with healthcare, we’ve created a “compelling governmental interest” to regulate otherwise private behaviours: whether or not to buy health insurance; banning junk food, cigarettes, riding a motorcycle without a helmet, riding a motorcycle period, unsafe sex. etc.
getting over strict scrutiny becomes easier.
I don’t buy the slippery slope argument . . . and some of these behaviors already are regulated (e.g., wearing a helmet). I guess that I just don’t see buying insurance as a behaviour at all (like smoking or riding without a helmet).
I see buying insurance (as an edict) as the government ensuring that you’ll have someone to cover your medical expenses if they are beyond your means. Otherwise everyone else will have to pay those expenses. (HHS says that 1/5th of emergency room visits are by uninsured people http://www.ahrq.gov/news/press/pr2009/hhsuninserpr.htm)
(however, I really do hate to be arguing for these awful bills. I’m with Brian on this – no more money to corrupted insurance/pharma/hospitals. Let’s have a public option)
Brian and Marmalade, I agree with you that a plan with a public option, or Medicare-for-all, would be better. (And the proposed bills do in fact expand government-run health care significantly, by expanding eligibility for Medicaid).
But that doesn’t mean this bill sucks. (By “this bill,” by the way, I’m referring to the Senate plan, which I expect will be pretty close to what passes in the end).
The main purpose of this bill isn’t, and shouldn’t be, screwing over the health insurance companies (or pharma or hospitals). The main purpose should be making insurance more affordable and widespread than it currently is, especially for lower-income people, and the bill does that, through Medicaid expansion and through subsidies.
I’d love to screw over the insurance/pharma/hospital industries. But that isn’t going to happen, because leftists (as opposed to Democrats) simply haven’t won enough elections for us to control policy that completely. The alternative to this bill isn’t single-payer; it’s the status quo.
The bill also improves insurance plans, especially for those buying through the federal exchanges (which will be mostly people who are currently uninsured), by regulating what insurance companies can do: no more turning down people for pre-existing conditions, no more dumping people when they get sick.
P.S. Marmalade, I didn’t comment on many points you made that I strongly agree with.
Ben, nearly all the experts — including experts who hate this bill — think it’s constitutional. (Or they say “in my opinion it’s unconstitutional, but under current precedents the Supreme Court will incorrectly say it’s constitutional,” which is for all practical purposes the same thing as saying it’s constitutional).
I can’t agree that it’s regressive. First of all, the amount you pay — either as a tax or in buying insurance — varies based on income. Second of all, the bill as a whole takes money mostly from reasonably well-off people and uses that to create a very large subsidy to low-income and no-income people’s health care.
1) None of the countries with single-payer health care have outlawed being fat. Yet those countries are far more “on the hook” for paying for health care, they are if anything even more bigoted against fat people, and they have far less of a tradition of being hostile towards government regulation than we have in the US.
So no; if France hasn’t outlawed being fat, I don’t buy that the US is about to.
2) That said, it should be noted that the status quo — which is the only realistic alternative, at this point, to this HCR bill — is extremely unfriendly to fat people. Private corporations are increasingly interested in penalizing their fat employees (or trying not to hire them in the first place) in the name of health care costs. And many fat people on the individual market simply can’t get any health coverage — the private insurance companies flatly turn us down. (If I didn’t live in a state where the government stepped in to provide coverage, I wouldn’t be able to get coverage at all.)
The current bill will make coverage a lot more available for fat people than the status quo does.
Uh, dude? In case you’ve missed Amp’s posts about all those oh-so-clever news stories on obesity trends in America, here’s a synopsis: This segment of the population is large and growing, and even politicians that might want to impose sanctions on obesity simply won’t have the guts.
By far the largest portions of the fed budget – Social Security and Medicare – are expended on the elderly. And we’ve all noticed how willing politicians are to antagonize that constituency, right? (Yet where are all the oh-so-clever news stories about the elderly? “Presidential hopefuls pander to the elderly, especially those in Iowa and others deemed in-continent”?)
But I get what you’re saying.
I share these concerns. Not so long ago the nation’s attorneys general joined together to sue tobacco companies – not on the theory that smokers had been duped into smoke, but rather on the theory that illness arising from smoking was increasing the cost of public health programs. That is, the attorneys general argued that a state’s choice to assume a liability on behalf of its citizens, coupled with a private citizen’s choice to smoke, created a legal claim by the state against a tobacco company. Fortunately the tobacco companies settled, so we got the benefits of the settlement while avoiding any icky legal precedent.
But imagine that your state adopts a policy of paying for kids’ college tuition. Would the state then have grounds to sue colleges every time they increase their tuition, on the theory that this increase was costing the state more money? In other words, would a state’s choice to assume a liability on behalf of its citizens, coupled with a citizen’s choice to take actions incurring the liability, create a legal claim by the state against the college?
I haven’t read Amp’s links, so maybe I’m repeating stuff from those sources. But here’s my simple legal theory for health care finance: The feds impose a tax on each adult to cover the cost the feds would incur to provide health insurance to that adult and her dependents. The feds then grant a tax deduction to people who make charitable contributions that offset governmental costs – that is, anyone who acquires health insurance (meeting some minimum qualifications) privately and relieves government of the burden of acquiring insurance on behalf of that person and her dependents. In addition, the feds grant a tax exemption for the poor (presumably financed by increases in some other tax or cut in some other spending). Voila: We have a tax that applies generally coupled with conventional exemptions, producing the desired result. No one is required to buy health insurance just as no one is required to buy a primary education; people are merely required to pay their taxes, and are provided optional opportunities to earn tax exemptions, just as they are today.
Alas, politicians can’t be candid about the word “tax.” Here in Minnesota, Gov. No-New-Taxes balanced the state budget some years ago by imposing a “user fee” on cigarettes. Ultimately courts were compelled to acknowledge that it was a tax, but the governor is reluctant to concede the point. Similarly, Obama pledged that he wouldn’t raise taxes on households earing less than $250,000 or something. This might impede Obama’s willingness to embrace the legal theory stated above.
Would the tax be regressive? Probably, although this would be moderated by the size of the exemption for the poor. But the benefits would be progressive. After all, poor people incur health care costs today. They incur out-of-pocket costs. They incur inconvenience costs. And they incur costs arising from their lack of health care. I recall an article discussing the cascade of consequences poor people incur for lack of dental care. As teeth decay, people become ever less social, and socially presentable. They become unemployable in any environment that requires public interaction. The resulting foregone income is a health care cost, although few people would recognize it as such. In general, expanding access to health care will make people healthier, which will tend to make them more productive, which will tend to make them wealthier and better able to bear to cost of health insurance.
Recall that Social Security taxes are regressive – but the net effect of the Social Security programs are (generally believed to be) progressive. I suspect health reform will have the same dynamic.
From Ezra today:
Big-league constitutional scholar Jack Balkin also has a new post on constitutionality today.
Mock & Tolin: The Constitutionality of the Health Insurance Tax
Rodney P. Mock & Jeffrey Tolin (California Polytechnic State University, San Luis Obispo — Orfalea College of Business) have posted Purchase or Else: The Health Insurance “Tax”, 126 Tax Notes 224 (Jan. 11, 2010), on SSRN. Here is the abstract:
With the Affordable Health Care for America Act, H.R. 3962, passed by the U.S. House of Representatives and the U.S. Senate’s version of a health care bill, the Patient Protection and Affordable Health Care Act, H.R. 3590, recently passed, this article reviews the particulars of each Act’s respective tax or penalty imposed on individual taxpayers who fail to purchase acceptable health care coverage, and questions whether or not such constitutes a “tax” at all, and if such does, whether or not it is an unconstitutional regulatory tax, indirectly regulating that which Congress cannot under the “Commerce Clause” of the U.S. Constitution; namely, non-participating taxpayers who merely “fail to purchase.”
The Health Care Bill is not one of the enumerated powers of Congress. Publius Huldah says it best here.
http://publiushuldah.wordpress.com/category/health-care/