is the "private mandate" to buy health insurance unconstitutional?

[unblock]

i haven't seen any discussion of this. other than perhaps poll taxes, now clearly unconstitutional per the 24th amendment, i can't think of a tax that the federal government has effectively levies against everyone. social security tax, e.g., is a tax on a transaction (labor), not a tax on people.

from article 1 of the constitution:

no capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken


i know the requirement to buy health insurance doesn't mean that the money goes to the federal government, and therefore it's not written up as a "tax". but calling it something other than a tax doesn't mean it isn't a tax. the federal government is taking money from everyone, not in regard to a transaction but simply for existing, and handing it over to private entities. it would have been the same had that called it a tax, took the money, and handed it over themselves to the insurance companies, then it would obviously be a tax.

i think the fact that they require the payment and enforce it with a fine amounts to a tax, and a direct tax prohibited by article 1. remember that we had to get a constitutional amendment just to make the income tax legal.


any constitutional scholars out there?
thoughts on the matter?


yeah, i know, i know. in practice, no one will care and if someone does get it to the supreme court, they'll just say that the federal government has the right to execute anyone who objects to this, but let's pretend we have a working government for purposes of this thread.

[elleng]

1. Since we haven't seen it,

hasn't gone anywhere, I think its too early to say.

[hughee99]

2. The "unfunded mandate", it's not just for state and local governments anymore. n/t

[unblock]

4. i already heard about complaints from a similar law in massachusetts

in that state's law, if you make one dollar over the cutoff for heavily subsidized health insurance, you're completely on your own. npr had a story about a guy making $50,000 (family of four, i think) who couldn't find even catastrophic health insurance for under $1000/month.

obviously a phaseout would help here, as would enough funding to make it more affordable. but i think the entire concept is wrong-headed for many reasons. strikes me as distinctly unamerican. or perhaps, these days, all too american....

[hughee99]

8. I live in MA and that's exactly right.

In order to be compliant with the law, and avoid your $800 fine, you end up buying about $1,500 worth of insurance that only covers you if you break your left foot in a blimp crash on a tuesday morning. And that's if you're in good shape to start with. I know people (mostly younger, healthier people) who have decided that it's better to pay the $800 fine than to pay twice as much for insurance that doesn't cover anything.

[debbierlus]

26. That is the problem, people don't realize what a bogus bill of goods they selling

As health reform....

[brentspeak]

38. What you wrote should be made into a giant billboard and displayed

in front of Congress and the White House for them to see every single day. The proposed mandate is a disgrace.

[stray cat]

3. Not treating you if you get sick would be constitutional - but better?

Its real freedom - if you don't want to participate you don't have to - just don't expect service or pay for procedures up front even in an emergency. Problem solved - you gamble you lose

[unblock]

5. of course i'm not advocating leaving the system as is. i want everyone covered.

but i want it done properly. and i think forcing everyone to buy private health insurance is wrong on many levels.

have the federal government provide coverage for, at a bare minimum, things like emergency services and infectious medicine, preferably through single payer, and fund it through income taxes. all clearly constitutional and more likely to achieve stated goals.

[earth mom]

15. That's exactly what should happen-through income taxes. Anything else is b.s. nt

[inna]

20. +1. Universal Health Care for all - funded by progressive taxation.

what they're doing instead is forcing something that is effectively a regressive back-door tax on the struggling middle class.


:argh:

[Romulox]

6. Whatever the SCOTUS says is Constitutional is Constitutional.

They will likely craft the proposal in way to avoid Constitutional muster altogether--as a component of the tax code.

[Statistical]

7. 99% of what federal govt does these days is unconstitutional...

however the courts have interpreted the "commerce clause" to mean essentially anything the federal govt wants it to mean.

It was actually not that powerful. It really was designed so VA for example couldn't prohibit "imports" of NC tobacco.
The feds needed a "magic ticket" and they courts made the "commerce clause" that.

I could imagine they could mandate you buy a car even if you don't have a driver's license and no need for one because you walk to work and it would still be Constitutional due to the over reaching power of commerce clause.

[unblock]

13. you're not far off about the commerce clause

partly it's also our economy that's evolved that so much of it is interstate thanks to the behemoth corporations, therefore interstate commerce means quite a lot more than it did 220 years ago.

but the commerce clause doesn't apply to people who don't want to participate in that particular market, so it doesn't apply here. though your point stands, that the supreme court has been sloppy in exchange for expedience in certain areas.

[Statistical]

16. Commerce clause does apply even if you chose to not participate

Supreme Court ruled that growing food for your personal consumption can be regulated by the interstate commerce clause.

Their "logic"...
Filburn argued that since the excess wheat he produced was intended solely for home consumption it could not be regulated through the interstate Commerce Clause. The Supreme Court rejected this argument, reasoning that if Filburn had not used home-grown wheat he would have had to buy wheat on the open market. This effect on interstate commerce, the Court reasoned, may not be substantial from the actions of Filburn alone but through the cumulative actions of thousands of other farmers just like Filburn its effect would certainly become substantial. Therefore Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.

http://en.wikipedia.org/wiki/Wickard_v._Filburn

Inaction can be regulated. In this case inaction in purchasing insurance.

Don't see why the same "logic" wouldn't apply here. I believe the commerce clause is one of the worst decisions by the Supreme Court but they seem reluctant to reign in that open ended power (minor case in 1995 put some limits but not much).

Before I get flamed by someone who doesn't read carefuly (not you):
Nothing here should be taken as support by me for either mandates or the commerce clause I am just calling it how I see it.

[Jim Lane]

25. Before you go bashing the Commerce Clause, consider the Civil Rights Act of 1964

Ollie's Barbecue was a little restaurant in Birmingham, Alabama. It didn't serve blacks. Does the federal government have the power to enact the Civil Rights Act and compel the restaurant to serve blacks? Yes, said the Supreme Court, in the case of , as an exercise of federal power under the Commerce Clause.

I also agree with Statistical that Wickard v. Filburn is applicable. Regulation can include a failure to engage in a particular economic activity.

My money would be on a 9-0 decision upholding the constitutionality of mandates.

Of course, mandates are still a bad idea. My point is that we need to win in Congress and not count on the Supreme Court.

[yurbud]

9. if it is unconstitutional, we don't have to buy car insurance either.

[unblock]

10. no, that's different

again, first it's a state requirement, not a federal requirement.
second, it's voluntary in the sense that you can avoid it by not driving or owning a car.

not true of the health insurance mandate, no way to avoid that.

[yurbud]

27. try living with out a car in California (or any other state in the West)

[unblock]

29. i fully appreciate how much of the country is dependent on cars

outside of the very few places like manhattan, you either need to be self-sufficient or rely on other people to do the driving for you.

then again, some people are like this, because they are physically unable to drive for one reason or another. whoever does the driving would obviously have to get insurance, but that cost may or may not come back to the passenger.

[Matariki]

12. That is such a faulted argument, you can't be serious.

[ddeclue]

22. No - it's actually quite correct.

[Matariki]

28. No, it's actually quite ridiculous. And obviously so.

I'd elaborate, but I'm sure you know why.

[Matariki]

11. I asked the same question here last week.

There seemed to be a number of people (including President Obama) who mistakenly, or deceptively tried to compare it to mandatory auto insurance. But the fault in that comparison should be very obvious.

In my opinion, not only will it be found to be unconstitutional, it's actually far worse than a capitation tax. It's an unprecedented mandated purchase from a private business.

I hope this leads not to dumping the whole healthcare reform issue, but rather to a single payer system that most other first world nations have.

[unblock]

14. amen!

[shimmergal]

17. Yes!

Forcing anyone to buy health insurance from a private entity amounts to involuntary servitude.

If a mandate passes, I expect there'll be lawsuits from right-wingers to the effect that ANY mandate is unconstitutional.

Given the present make-up of the Supreme Court, it's possible they'd uphold such an argument.

OTOH, don't knnow if the fearsome four + one would want to upend the PTB that drastically. It's possible if progressives filed a companion suit, objecting only to the subsidizing of private, profit-driven companies as unconstitutional, they'd go for that, as a "compromise" solution (no matter how odd that thinking seems to us.)

Anyhow, some legal eagles need to be thinking along these lines.

[Statistical]

21. Precedent is pretty strong.

Mandate is an imprecise term. Nobody in mandating you to get Health Insurance. You can have health insurance or you can not have health insurance but there is a penalty if you don't. Subtle distinction but enough to make it constitutional.

http://en.wikipedia.org/wiki/Wickard_v._Filburn

Courts found that by growing his own wheat Filburn was NOT purchasing wheat and thus that inaction could be regulated.
Even an inaction can be regulated via the commerce clause. The inaction of not purchasing health insurance isn't material different than the inaction of not purchasing wheat.

I don't think the court will overturn this long standing precedent. I might be wrong but I wouldn't want to bet on it. Hopefully the mandate will be stripped out.

[ddeclue]

23. I don't think applies - people aren't growing a substitute by not purchasing healthcare.

They are simply refusing to purchase a product they either cannot afford or do not want.

This is the equivalent of forcing people to buy vacations in Vegas.

There has to actually be commerce before Congress can regulate it.

Congress cannot use the commerce clause to force us to buy a product if we were not otherwise buying it.

That is taking the commerce clause one step too far.

Congress can tax me all day long and use those taxes to purchase services from a government contractor and then redistribute those services (or products) to me using its power to tax and to spend but it cannot force me to directly buy those same goods or services directly from the same vendor via a private transaction.

[Statistical]

24. The substitute is paying cash.

The insurance companies will argue that they young and healthy have no insurance at a higher rate.

Thus their inaction in not purchasing health insurance results in higher premiums for everyone else. They do have an effect on interstate commerce by their inaction.

Remember the job of SCOTUS is not to decide if a law is "good" or even "beneficial" that is the job of Congress. The job of the SCOTUS is to determine if it is permissable (even if bad and non-beneficial).

The precedent form Wickard v. Filburn indicates that even an inaction (not buying wheat) can be regulated. It would be very hard to prove that people not getting insurance has no effect on the risk pool. Unless the people not buying insurance exactly match the existing risk pool of people buying insurance their "election" to not purchase would have an effect.

I am against mandated insurance but that needs to be stopped by Congress or the President. It is unlikely the SCOTUS will the shining knight if it gets that far.

[unblock]

30. the precedent in wickard v filburn was not inaction. he chose to grow wheat.

and health INSURANCE is NOT health CARE.

so if someone involuntarily participates in the health CARE market by getting emergency medical care, you still can't say they had anything to do with the health INSURANCE market.


i'm not betting on what today's scotus would do with this either, but logically, i don't think this is a compelling precendent. then again, ever since bush v gore, the whole notion of logic and stare decisis is out the window with this bunch.

[Statistical]

31. Ignore health care completely.

A healthy young person does not get health insurance. The pool which determines premiums for the whole pool has one less healthy person. No like Supreme Court said the action of one person may not make a difference but say 1 million healthy young people don't get insurance, that would have a material affect on insurance market. Their inaction can affect interstate commerce and thus can be regulated by the govt.

Fines, tariffs, fees are an acceptable form of regulation. I don't see how the Supreme Court could find it Unconstitutional.

I wish we had the votes to go single payer and forget all the nonsense anyways. Using insurance companies to get everyone coverage seems like an over complex indirect way or fixing the issue. Adding penalties only makes it worse.

[Romulox]

33. The legal question does not hinge on "action vs. inaction"

Congress can obviously regulate both. For example, failure to pay one's taxes is a crime which nobody disputes the government's power to prosecute.

[unblock]

36. i'm talking about inaction in participating in a commercial market, not in complying with a law

not paying income taxes is VERY different from not buying a yacht, e.g.

[Romulox]

39. Right. And the Court has ruled that NOT buying wheat (marijuana) affects the interstate market

for same. That is all that is required to assert jurisdiction.

One thing to remember: the Supreme Court decides cases based on doctrine and precedent, not logic or "horse sense". There is a very clear line of cases that suggests that the Court will hold this assertion of jurisdiction under the Commerce Clause Constitutional. Don't mistake this probably would argument with an I think they should argument.

At any rate, this is all likely a moot point. Sources suggest that the plan will be designed as a component of the tax code. There, the case law is crystal clear: the Congress can incentivize things it could not otherwise order via the tax code. For example, the 21 y.o. drinking age was mandated via the threat of withheld Federal highway dollars. All quite Constitutional.

[unblock]

40. if it's done through the tax code, then it's legal, though it may miss some people

at least a (very) small number of people could escape it if they're rich enough and low maintenance enough to take stick their money under the mattress to avoid enough income to owe taxes. they can avoid buying insurance and not be subject to the fine.

i don't know if the proposed bills give such a person subsidized or free insurance despite their non-income producing wealth.

[ddeclue]

34. No that's a consumer choice to fail to buy a product they deem unacceptable to them.

Your argument is that people aren't buying the insurance company's product because it does not represent a reasonable cost benefit to the consumer and therefore the government must step in and force them to buy that product at gun point.

How is that any different than forcing me to buy an automobile by government mandate? or a cell phone? or a computer? The fact that some consumers choose NOT to purchase these products no doubt ALSO has an impact on the cost of these products as their costs are a function of economies of scale.

NO the government can NOT regulate commerce that does not exist - the commerce clause cannot possibly extend that far or we are back to "Royal Monopolies" like the British East India company that sold tea to the colonists. I just so hate to use that example because of the idiot teabaggers who have dumbed it down so much but the government can NOT force consumers to buy products which they have thus far refused to buy out of their own self interest.

The government always has an entirely legitimiate alternative that IS within their Constitutional power: they can tax me and use my money to buy healthcare services for me from those same insurance companies. They can do this all day long but they can't mandate a private transaction between consumer and vendor.

Our Federal government as constructed under the Constitution has LIMITED power, not unlimited power - it must work within the scope of the power it has been allotted.

Doug D.

[paulsby]

18. yea

regardless of whether it is or isn't constitutional, the auto insurance analogy is a bogus analogy.

[paulsby]

19. yea

regardless of whether it is or isn't constitutional, the auto insurance analogy is a bogus analogy.

[andym]

32. The answer is it depends how they do it. But it can be made clearly constitutional

For example,
If they create a health tax equal to the penalty, require payment as part of personal income taxes and then provide a credit equal to the tax (penalty) if you provide evidence of insurance.

I believe this avoids all constitutional problems.

[Obamanaut]

35. I'm still puzzled as to how the president can tell companies whom they

must fire and how much they can pay CEOs. I guess if this can be done, then they can probably do whatever they want to.

[unblock]

37. they're only doing that for companies that the government has taken over

essentially, through the bailout, the government got certain shares or warrants or whatever, which give them certain rights or power that they don't have for over other companies.

i believe they could demand repurchase at any time, and use that leverage to foist such restrictions on these companies. companies are free to do whatever they want if/when they can buy back the bailout warrants.

[TxRider]

41. Quite possibly, you can bet it will be challenged.