Carvin [the other attorney] ain’t too shabby either. Between the two of them [Carvin and Clement], they make a good tag-team ...
Here is an exchange between Carvin and Sotomayor:
*****
MR. CARVIN: No, no, no. I was — they create this strawman that says: Look, the only alternative to doing it the way we’ve done it, if we condition access to health care on buying health insurance, the only way you can enforce that is making sick people not get care. I’m saying no, no.
There’s a perfectly legitimate way they could enforce their alternative, i.e., requiring you to buy health insurance when you access health care, which is the same penalty structure that’s in the Act.
There is no moral dilemma between having people have insurance and denying them emergency service. Congress has made a perfectly legitimate value judgment that they want to make sure that people get emergency care. Since the founding, whenever Congress has imposed that public responsibility on private actors, it has subsidized it from the Federal Treasury. It has not conscripted a subset of the citizenry and made them subsidize the actors who are being hurt, which is what they’re doing here.
They’re making young, healthy people subsidize insurance premiums for the cost that the nondiscrimination provisions have put on insurance premiums and insurance companies.
JUSTICE SOTOMAYOR: So the -
MR. CARVIN: And that is the fundamental problem here.
JUSTICE SOTOMAYOR: So the — I — I want to understand the choices you’re saying Congress has. Congress can tax everybody and set up a public health care system.
MR. CARVIN: Yes.
JUSTICE SOTOMAYOR: That would be okay?
MR. CARVIN: Yes. Tax power is -
JUSTICE SOTOMAYOR: Okay.
MR. CARVIN: I would accept that.
JUSTICE SOTOMAYOR: Congress can — are you taking the same position as your colleague, Congress can’t say we’re going to set up a public health system, but you can get a tax credit if you have private health insurance because you won’t access the public system. Are you taking the same position as your colleague?
MR. CARVIN: There may have been some confusion in your prior colloquy. I fully agree with my brother Clement that a direct tax would be unconstitutional. I don’t think he means to suggest, nor do I, that a tax credit that incentivizes you to buy insurance creates a problem. Congress incentivizes all kinds of activities. If they gave us a tax credit for buying insurance, then it would be our choice whether or not that makes economic sense, even though -
JUSTICE SOTOMAYOR: So how is this different than this Act, which says if a taxpayer fails to meet the requirement of having minimum coverage, then they are responsible for paying the shared responsibility payment?
MR. CARVIN: The difference is that the taxpayer is not given a choice ...
This reveals what Obama and the Democrats will do if this law is struck down.
They will argue that the only alternative now is.... SINGLE PAYER.
“Congress can tax everybody and set up a public health care system.
MR. CARVIN: Yes.
JUSTICE SOTOMAYOR: That would be okay?
MR. CARVIN: Yes. Tax power is -”
This sort of argument enrages me. let’s say the feds have the power to raise taxes however they wan; they don’t, but for argument’s sake let’s say. Does that mean they can spend the revenue any which way they choose? No, they still have to spend it according to constitutionally delegated powers. Nowhere in the Constitution is Congress authorized to establish a national public healthcare system. Nor, so far as I remember, is it authorized to subsidize the states or private companies to do so.
I fully understand that the power to subsidize is the power to regulate. And if it could constitutionally subsidize healthcare, the federal government would be within its prerogatives to mandate free emergency care, or whatever else it wanted. That is, without violating another part of the Constitution.
Whence, then, derives this power to subsidize? Who got it in their head that the feds can spend however they want revenue from taxes legally levied? Taxing power implies nothing other than the power to tax.
“don’t think he means to suggest, nor do I, that a tax credit that incentivizes you to buy insurance creates a problem. Congress incentivizes all kinds of activities. If they gave us a tax credit for buying insurance, then it would be our choice whether or not that makes economic sense, even though”
On this count, he’s right. Congress can manipulate the tax code so as to incentivize as it sees fit, so long as the tax is legal. Though I am sick and bloody tired of using the tax code for social engineering.