One Simple Reason Why the Health Care Law’s Mandate IS Constitutional
First of all, let me say how much better I like writing “Health Care Law” than “Health Care Bill”. But on to the topic, there is a simple but under-reported fact in the whole “The individual mandate is unconstitutional” debate, that, while not new, only came to my attention last night. Last night on Countdown, not-Keith Olbermann (a.k.a., Lawrence O’Donnell) brought up a small, but very important piece of legislative detail about the individual mandate, and it blows any chance of Constitutional-based overturning out of the water.
You see, we tend to talk about the IM as “The government forcing everyone to buy insurance or get fined”, but that’s not really what it is — at least the way it’s written. And the way it’s written, there is no question that Congress has the power to do it. If there’s one thing that Congress certainly does have the power to do, it’s impose taxes. That’s the main reason we have the Constitution we do, and not the Articles of Confederation. And that is how the IM is written — as part of the tax code. That so-called “fine” that would be imposed for not buying coverage? It’s actually an excise tax, imposed on those who do not have coverage (or who are otherwise not exempted). Imposing taxes is unquestionably within Congress’ stated powers. You can argue the moral or ethical aspect of the IM all you want, but its constitutionality is firm.
On different but related note, one of the other arguments against the IM has been the “Never before has the government forced people to buy things from private companies before!” position. Well, guess what? That’s not true, either, as Think Progress reports. It was done over two hundred years ago by none other than The Founding Fathers themselves. I’ve never thought that the “It’s unprecedented!” argument alone was very valid, but it’s interesting to see that even that doesn’t stand up.
Tags: Congress, Health Care Reform
I don’t find the “it’s unprecedented” argument particularly powerful either since everything is unprecedented until it’s actually done.
The Democrats weren’t dummies when they wrote the bill. They had people scrutinizing this issue.
Plus, the Supreme Court would have a hard time finding a basis to overturn HCR without also overturning Social Security, Medicare, and Medicaid.
They weren’t required to purchase stuff; just to *have* it.
Theoretically you can make your own musket and knapsack, and no doubt some folks did. But you can’t make your own health insurance.
1) The argument that either you buy the products or pay the “tax” certainly has merit. Which argument wins is ultimately up to the courts.
2) Going back to George Washington requiring enrolled individuals to purchase firearms to claim “precedent” for forcing everybody to purchase insurance is a mighty stretch considering that they didn’t have an income tax and tariffs were the Federal Government’s main source of revenue.
3) Every moment is unprecedented, but legal precedent is different.
BTW, finding the individual mandate to purchase private insurance unconstitutional might be the quickest way to get single payer or a public option.
A guy can hope, can’t he?
Hey A1 – is your concern that someone would be forced to pay up to 8% of their income for insurance or that they would be forced to pay 8% to a private company? Just trying to establish your position.
My concern is that hundreds of billions of dollars will be going to directly to private profits to benefit a few insurance company owners and not the families who earned them or for the general welfare of the country. As I have written here several times, I have no problem at all with an individual mandate if and only if the money from that mandate went to pay directly for delivered health care services.
The public option, in my opinion, was the necessary and essential compromise between a single-payer system and the status quo. If you’re going to force people to pay for insurance without a single payer, at least give them a choice between private and public plans.
In an age of huge Federal deficits, sky rocketing health care costs, flat wages, and family budgets squeezed to the limit, I think it is simply wrong and immoral to allow the private insurance companies to skim 15-20% off the top of mandated money for no public benefit and without giving the people who earned the money a choice.
OK, just asking. So, if there were a non-profit option available, would that allay your concerns, or must it be a public plan?
Plus, forcing people at tax time to show a receipt for services, is a really screwy way to deliver public services.
Once the public option was scrapped, the individual mandate should have been scrapped too.
The whole individual mandate stems from the insurance companies refusing to accept the bans on rescission, caps, and pre-existing conditions, unless they got the mandate to sweeten the deal. That deal is where Obama and the Senate chose to make their stand.
We got shafted on that deal.
– Rescission still exists, and bonuses will still be paid to agents who deny the most payments.
– Pre-existing conditions are still screened at enrollment, and instead of spreading the risk out to the pool, shunted to the higher-cost “high-risk” pool to preserve profits for the insurance companies.
– Ending lifetime caps may yet be useful, assuming your policy isn’t rescinded.
There are still some amazingly good things in the bill:
1. Establishing for the first time that investment income may be taxed to provide health care. This is very progressive, and will come in handy if we ever try to implement single payer.
2. Ending the bank subsidies for student loans.
3. Creating the exchanges… however they won’t be useful until they are freely open to individuals who want to buy.
Geek: the answer is YES. I want any profit to go back to the government not to the greediest for profit corporations. As Wendell Potter stated, “the insurance companies are already looking for the loopholes to continue business as usual”. Go to democracynow.org and hear what Michael Moore says about all this. Progressives better pay attention to these facts! The whole idea of single payer was to get the PROFIT out of health care. This bill continues the sicko for profit system, continues paying CEO’s and shareholders billions! In fact, this is a weak bill relative to “pre existing conditions”. The insurance company will be fined a lousy $100 a day for being out of compliance. If they are looking at spending $100,000 on a cancer treatment or some other dibilating disease…its cost effective for them to pay the damn fine and continue to refuse the treatment.
Without real specifics, the question is too hypothetical to answer. Why? You need to compare the size of the risk pool, the ratio of admin-to-service spending, and the salaries of the top executives. Many “non-profits” have very high overhead costs, including huge salaries to top executives. A public option plan, presumably, would have a much larger risk pool and lower fixed costs than even a private non-profit option.
And, thanks for asking.
Here’s what I was asking about yesterday.
“Unless they do the right thing, they’re not going in,”
I like the sound of that!
However, Pelosi had over a year and over 2000 pages to tell them what the right thing is.
If they are not in violation of the law as written, I don’t see how they can be kept out of the exchanges.
I wonder what “the right thing” is?
The comments under your linked article are worth reading. If all the insurance companies raise their rates together, are they all going to be kept out of the exchanges? Remember, they’re still exempt from
anti-trust laws.
They way Thom Hartman explained it today made a lot of sense to me.
So you don’t get health insurance under the new law, you pay a tax. The way you get a tax “break” from this particular tax to is get insurance.
People who rent have to pay a higher tax than homeowners. People with mortgages get a tax break.
same thing.
So you don’t get health insurance under the new law, you pay a tax. The way you get a tax “break” from this particular tax to is get insurance.
Good thing we don’t finance public schools this way. Or public anything-else.
So you don’t get health insurance under the new law, you pay a tax. The way you get a tax “break” from this particular tax to is get insurance.
People who rent have to pay a higher tax than homeowners. People with mortgages get a tax break.
I have no idea who Thom Hartman is, but the most generous thing I can say about this analogy is that it makes no sense. Mainly because you can’t fit into it the additional people who now qualify for Medicaid, you can’t fit into it all of the people who can get subsidies to actually purchase insurance, and nor can you fit the new insurance regulatory scheme into it.
I think what V and Thom Hartman are trying to say is that this would be the justification used by the administration if this went to court. We think of it as “Buy insurance or get fined (or taxed).” In reality, it’s actually the other way around. The tax is the default situation. But, if you have coverage (either private, subsidized, or government provided) or are exempt, then you get a credit to offset it. Not the prettiest way to explain it, but it keeps everything clearly in line. As UI wrote, these people aren’t dummies.
And thanks, V, for bringing that up. I had meant to get around to that in the post but forgot.
I agree that the public option would go a long way to fixing what’s ailing in the bill right now. I just read on Twitter that Senate Democrats are discussing adding the public option to the budget bill for next year.
In some ways the public option is zero cost. It is paid for by the people that pay into it. It seems that they need to enable the creation, then pay to set it up. After that, it is largely self-sustaining.
Oh OK — sorry for misreading you, V. Except that I think that the legal argument is not going to be about the detail of insurance vs. tax, but on the ability of the states to nullify federal law. An effort that courts have been throwing out pretty routinely recently and no less than Reagan’s Solicitor General thinks this this is a damned silly effort:
The only people going into these exchanges will be the working poor, many of whom are the sickest. These exchanges cost millions to start up. Who knows who will be running these exchanges and if they can be trusted. The rich will continue to “buy” their cadillac plans. With a real public option, both working people, sick and non sick could get in at a cheaper cost. Until 2014 there is nothing to stop the insurance companies (all) of them from raising their rates. Even today, Medicare is already raising its rates. AARP was supposed to be on our side. My additional premium went from $142 to $185, and I am going to pay higher deductibles and more in co-pays. They are fixing the fix before the fix is in. Alan Grayson and Bennet from Colorado are going to try to get Grayson’s four page bill in…but with Pelosi saying NO, NO NO more amendments, it continues to kill off the public option. They hope that if the republicans find some little thing wrong and the bill goes back to the house they could tweak the bill more by adding in the 4 pager. Watch Pelosi and the corporate dems stop it. This is all about Obama and his non-universal health care ideas. He never planned on universal care. Why, because he and his administration received the MOST money from the insurance, big pharma and medical insurance companies…yeah right real change we can believe in.
If the dems add in the public option to the budget bills, can’t you hear the repukes howling and screaming foul? Right now is the time to do it, right now!
States wont be able to opt out because of the ERISA laws.
I’ll be honest I have a lot of trouble understanding the nuances of this law, and that was the first defense of the “you’re fining us!” arguement that sort of made sense to me.
(on an unrelated note Thom Hartman is a liberal talk show host and he’s really great if anyone who likes talk radio is interested)