Harvard, Yale. Typical.
Posted on 03/21/2010 6:52:09 PM PDT by Bratch
Once President Barack Obama and Democrats in Congress have passed a health care reform bill, conservative groups are likely to challenge parts of it as unconstitutional, arguing that it oversteps Congress’s powers. A key target will be the individual mandate, which is designed to coax uninsured persons into purchasing insurance.
The term “individual mandate” is misleading for two reasons. First, the law would not actually require all individuals to purchase insurance. The mandate would not apply to dependents, persons receiving Medicare or Medicaid, military families, persons living overseas, persons with religious objections, or persons who already get health insurance from their employers under a qualified plan.
Second, it is not actually a mandate. It is a tax, which people would not have to pay if they purchased health insurance. The House bill imposes a tax of 2.5% on adjusted gross income if a taxpayer is not part of a qualified health insurance program. The Senate bill imposes what is called an “excise tax” — a tax on transactions or events — or a “penalty tax” — a tax for failing to do something (e.g., filing your tax return promptly). The tax is levied for each month that an individual fails to pay premiums into a qualified health plan.
Congress has the power to pass legislation that falls within any of its powers enumerated in the Constitution. There are two obvious sources of congressional power. The first, described in the General Welfare Clause, is the power “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States.” The second, laid out in the Commerce Clause, is the power “to regulate commerce . . . among the several states.”
The individual mandate is a tax. Does it serve the general welfare? The constitutional test is whether Congress could reasonably conclude that its taxing and spending programs promote the general welfare of the country.1 This test is easily satisfied. The new health care reform bill insures more people and prevents them from being denied insurance coverage because of preexisting conditions. Successful reform requires that uninsured persons — most of whom are younger and healthier than average — join the national risk pool; this will help to lower the costs of health insurance premiums nationally.
Taxing uninsured people helps to pay for the costs of the new regulations. The tax gives uninsured people a choice. If they stay out of the risk pool, they effectively raise other people’s insurance costs, and Congress taxes them to recoup some of the costs. If they join the risk pool, they do not have to pay the tax. A good analogy would be a tax on polluters who fail to install pollution-control equipment: they can pay the tax or install the equipment.
Because the textual argument for Congress’s authority under the General Welfare Clause is obvious and powerful, opponents have tried to argue that the tax is unconstitutional because it is a “direct” tax. Under the Constitution, “direct” taxes must be apportioned to state population. That is, if State A has twice as many people as State B, the amount of revenue collected from State A must be twice that collected from State B. Like most federal taxes, the individual mandate is not apportioned to state population.
The classic examples of direct taxes are taxes on real estate and capitation or “head” taxes on the general population, under which people are taxed no matter what they do. In one of the Supreme Court’s first cases, Hylton v. United States, Justice William Paterson held that if there is any doubt, taxes should be classified as indirect rather than direct.2
The individual mandate is not a direct tax. The House’s version is a tax on income. Under the Sixteenth Amendment, income taxes do not have to be apportioned, regardless of the source of the income. The Senate’s version is an excise or penalty tax. It is neither a tax on real estate nor a general tax on individuals. It is a tax on events: individuals who are not exempted are taxed for each month they do not pay premiums to a qualified plan.
If the individual mandate falls within Congress’s power to tax and spend, no other constitutional authority is necessary. However, Congress also has the power to impose the tax under the Commerce Clause. The test in this case is whether Congress could reasonably conclude that the economic activity it regulates has a substantial effect on interstate commerce when all individual instances of the regulated activity are added together. The Supreme Court says that economic activities include buying and selling, borrowing money, agriculture, services, manufacturing, and consumption.
Even if an activity is local and not economic, Congress can regulate it if it reasonably believes that doing so is necessary to make its regulation of commerce effective.3 (Under the Constitution, Congress has the power to make all regulations that are “necessary and proper” for carrying out its enumerated powers.)
In 1942, the Supreme Court held that Congress could regulate wheat grown for home consumption as part of a general regulation of farm production.4 People who grew wheat at home substituted it for wheat products they would otherwise purchase in the market; cumulatively, this practice had a substantial effect on interstate farm prices. Similarly, in 2005, in Gonzales v. Raich, the Court held that Congress could regulate marijuana grown for home consumption as part of a general ban on controlled substances, because Congress reasonably concluded that people would substitute homegrown marijuana for other marijuana purchased in black markets.3
The individual mandate taxes people who do not buy health insurance. Critics charge that these people are not engaged in any activity that Congress might regulate; they are simply doing nothing. This is not the case. Such people actually self-insure through various means. When uninsured people get sick, they rely on their families for financial support, go to emergency rooms (often passing costs on to others), or purchase over-the-counter remedies. They substitute these activities for paying premiums to health insurance companies. All these activities are economic, and they have a cumulative effect on interstate commerce. Moreover, like people who substitute homegrown marijuana or wheat for purchased crops, the cumulative effect of uninsured people’s behavior undermines Congress’s regulation — in this case, its regulation of health insurance markets. Because Congress believes that national health care reform won’t succeed unless these people are brought into national risk pools, it can regulate their activities in order to make its general regulation of health insurance effective.
One final argument against the individual mandate is that it violates the Fifth Amendment by allowing the government to take property without just compensation. “Takings” occur when the government seizes property from particular individuals; a familiar example is a local government’s taking of land by eminent domain. Ordinary income taxes and excise taxes that are levied on a large population and that regulate people’s behavior by taxing their income or consumption choices are not considered takings under the Constitution. The individual mandate is just such a tax — not a taking.
Although opponents will challenge the individual mandate in court, constitutional challenges are unlikely to succeed. The Supreme Court will probably not even consider the issue unless a federal court of appeals strikes the tax down. In that unlikely event, the Supreme Court will almost certainly uphold the tax, at least if it follows existing law. To strike down the individual mandate, it would have to reject decades of precedents. It is very unlikely that there are five votes on the current Court for staging such a constitutional revolution.
OK, so the “mandate” is really a “tax”. That makes me feel so much better. I don’t need any more f-ing taxes!!!!
If our founding fathers intended for the ICC in Article 1 Section 8 to have sweeping powers then there would have been no need for them to list specific powers granted to Congress also in Article 1 section 8. They would have only written the ICC in Article 1 section 8. Nor would they have bothered writing the 10th Amendment that begins with the words “Any powers not delegated to the United States” if Congress had all powers.
Was the student loan provision in the Senate approved HC bill? I don’t think it was. If reconiliation of the House version isn’t reconsidered, does the student loan stuff go away?
Harvard, Yale. Typical.
Some, or even many, of the individual elements of this bill will be found to be unconstitutional. That doesn’t matter an iota to the democrats. The vote that permits govenment to control and regulate healthcare will remain, and they will build on that year by year until private health insurance disappears and we have a single payer system. They are Marxist b******s through and through. And just like a fungus they will keep growing and irritating the crap out of us.
This article is so far off base I’m wondering what this guy was smoking when he wrote it. Hey Tapper, eat this one buddy. Bailey vs Drexel Furniture.
http://www.washingtonpost.com/wp-dyn/content/article/2009/08/21/AR2009082103033.html
This is moronic reasoning.
He claims it’s not a “mandate” because the penalty for non-compliance is called a “tax”? Even a ten-year-old can see through such sophistry.
And because the mandate doesn’t apply to certain people, like the military, it’s misleading to call it an “individual” mandate?
So I was looking for an actual legal argument in this article. I found none and instead found patently silly semantic nonsense.
There seems to be no limit on the power of this government. They find away around everything. After this healthcare/takeover fiasco it is clear we are no longer a government of the people for the people and by the people. We are being controlled and manipulated.
I know when I was around 20 and rather irresponsible and rebellious, there is no way I would have filed a tax return if I knew I was going to be fined for it. To make a confession, I didn't file a tax return until I got my first decent paying job out of college.
I'm thinking peyote.
a tax and then a fine...then when the 4 years are up they the money will be gone...and my grandkids can be fined or lose property if they dont pay up...ok im good with that....but for my grandkids I am not ok with it....its just another way to take freedom away and take what one person works for to give to another......rip off..steall call it whatever you like....we have given the government too much power and they are destroying us with it....
Got an e-mail addy for this tool?
This is such incredibly tortured logic, it laughable.
Even when states - who have much greater power ceded to them by the US Constitution to effect law under the premise of establishing and promoting the general welfare - mandate that drivers purchase automobile insurance, they have an opt-out provision that normally allows the driver to secure a bond in lieu of coverage - kind of a financial statement of self insurance.
This federal law doesn't even permit that. As the law is written, Bill Gates MUST have insurance, even though for Gates - who clearly posses the financial wherewithal to pay for any medical trauma - it would be more cost beneficial to pay for medical care entirely out-of-pocket.
The Supreme Court has never established a Constitutional prerogative for the Federal Government to regulate non-activity as it relates to commerce. I don't expect the Roberts court to start anytime soon. It's like walking into a liquor store and the state taxing you for not buying the fifth of JD. It's not going to happen, no matter how greatly the author wishes it so.
Pretty much unrelated, but John Boehner just gave one hell of a speech on the floor of the House.
What I think is so funny is that this will hit the lower income and young voters the hardest, just the ones that voted for the O. Well, you got what ya voted for, idiots.
Jack M. Balkin
Yale Law School
P. O. Box 208215
New Haven, CT 06520-8215
Courier Deliveries:
Yale Law School
127 Wall Street
New Haven, CT 06511
Phone: 203-432-1620
Fax: 203-432-4871
Please address all e-mail
about Balkinization to
jackbalkin@yahoo.com
Time to spam this prick...
oh for God’s sakes. I don’t give a damn how they dance around it...”it isn’t a mandate it is a tax you don’t have to pay if you buy insurance...” what a farce.
We basically have a mandate, by WHATEVER name you want to call it. So shove it, Mr. Doctor whoever you are.
We can still fight this damn communism.
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