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.