By Dan Kennedy • The press, politics, technology, culture and other passions

Three questions about those legal challenges

This isn’t fair — I’m going to be on the road until tonight, and I managed to mess up the WordPress app on my BlackBerry. So I won’t be able to approve comments for quite a while. But I do have three questions about legal challenges to the health-care law, and I’m hoping someone can answer them here.

1. Critics say the requirement that everyone must buy health insurance from a private company is unconstitutional. Yet no one to my knowledge has ever even raised that issue with regard to the Massachusetts law, which has the same requirement. Is there something different about the Massachusetts Constitution?

2. Under federal law, we are required to invest our money in a government-controlled retirement system (Social Security) and medical-insurance system (Medicare). Why is that constitutionally permissible if being required to buy insurance from private companies is not?

3. Is it even correct to call the insurance mandate a “requirement”? If you refuse to buy insurance, you simply pay a penalty of some sort, right? You’re not being branded as a criminal or even a civil offender as I understand it.

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  1. Davio Van Lombirk

    Dan – TPM had an uncharacteristically deep piece on this the other day:

  2. David Weininger


    I think the key to all three questions is that, if I understand correctly, the “mandate” is actually a tax on adjusted gross income that you don’t have to pay if you’re enrolled in a qualified plan. Jack Balkin of the Balkinization blog pointed this out back in January:

    If this was something other than a tax, there could perhaps be a question of whether it’s a power that a state could exercise – under the 10th Amendment – but the Federal Government could not. As Balkin notes, though, Congress’s power to tax and spend for the general welfare is clearly set out in the Constitution’s text. Hence the mandate/tax/whatever you call it is Constitutional.

    I’m not a lawyer, but that’s my understanding.

  3. Steve Stein

    The real question I have in all of this is when one of these challenges gets to the Supreme Court, will legal reasoning carry the day or will the decision be rendered on a more political basis?

  4. BP Myers

    I ain’t a lawyer, but I’ll take a shot:

    1) Taxation, by its very definition, is the legal confiscation of property.

    However, Article 1, Section 9 of the U.S. Constitution explicitly forbids bills of attainder, i.e. the singling out of a person or group of people for the punitive confiscation of property.

    For example, recall that Congress made lots of noise about confiscating the egregious A.I.G. bonuses via taxation, however they opted not to on these very constitutional grounds.

    The framers were so hell-bent on preventing this very thing that the U.S. Constitution, in one of its very few prohibitions on what states can do, also forbids state constitutions to allow bills of attainder.

    The U.S. Supreme Court should declare unconstitutional the Massachusetts mandate. I hope we’re just waiting for cases to work there way through the system.

    2) Tax dollars that go to Social Security or Medicaire come under the broad power of the legislature to tax.

    The constitution prohibits them from singling out special groups of people for punitive taxation.

    3) What you call a “penalty” I call the singling out of a specific group of people for the confiscation of property.

  5. L.K. Collins

    Here’s my take on your questions.

    1. Tenth Amendment. All powers not explicitly given to to the Federal Government are reserved for the sovereign states.

    2. Tenth Amendment again, and an unsupported extension of interstate commerce clause. Also, I don’t believe that Congress has ever required that all consumers purchase something from a private corporation. The courts will certainly address this issue. Comparison to Social Security? Apples and oranges.

    3. Yes. Because the consumer is penalized if he doesn’t, sanctioned for NOT doing something. See 1 and 2, above.

    The suit filed in Florida is an interesting read and raises interesting questions if you see a limit to the use of the interstate commerce clause and/or you see the Tenth Amendment, part of the Bill of Rights, as posing limits on the the flexibility permitted in interpreting the Constitution.

    The suit also challenges the right of the Federal Government to impose unsolicited, and unwanted addition mandates that dramatically change the financial obligation of the states (sovereign entities) without their consent.

  6. Michael Pahre

    I’m not a lawyer, but that doesn’t stop me from pretending that I know something about the law…

    1. The objection to the federal government having the authority does not question the state’s authority. I think it is essentially a states’ rights vs. federal rights issue, not the wording of a particular, applicable section of the state constitution that might resemble a similar section of the federal constitution.

    2. This one baffles me, because basically the argument is being made that it’s OK for the government to take over health care insurance altogether (Medicare single-payer delivered privately) but not for the government to step back by require private insurance plus private delivery. If this zany argument succeeds, then Congress doubles down with single-payer Medicare-for-all — an unintended consequence for those who don’t want any of this health care reform in the first place.

    3. No, it is not correct to call it a mandate — it’s more like a requirement if you want to continue to claim a tax deduction that you already get for free. From what I’ve been able to figure out, the federal requirement will be enforced in a different portion of your tax form from how the MA state requirement works. In MA, we fill out a schedule proving we have health insurance; we then are allowed to claim a tax deduction called the personal exemption. The federal paperwork will have the same effect but may appear somewhere else on the income tax forms than the personal exemption. (Anyone know the details of the bill?)

    So, if you don’t want to get health insurance, then you don’t have to. You just lose an exemption/deduction on your income tax form (representing $750) and walk away. No cops, no IRS agents, etc. And if you are impoverished and don’t file an income tax form — say, if you have nothing withheld and have no tax to pay — then Uncle Sam has no business with you to chase you down for the $750; the fee only applies if you file your taxes. But, then again, a lot of the people who fit into this category are undocumented immigrants who aren’t covered by the HCR law, anyway…

  7. Dan Kennedy

    Some great comments here, and also privately by e-mail. I appreciate it. The bottom line seems to be that the lawsuits would be considered frivolous under the generally understood meaning of the commerce clause, but that there’s a chance the Supreme Court has been gearing up to redefine the clause in a significant way — so who knows?

  8. Steve Stein

    Dan, I agree about the comments, and somewhat regret my flippant avoidance of the actual constitutional issues in play. But, in my defense, my guess is that actual lawyers can make very persuasive arguments on both sides of these issues, and the actual judges who hear such cases will have a much better understanding of the constitutional nuances than I. Hence my skepticism.

    The tension between the 10th amendment and the commerce clause has always interested and puzzled me. I anticipate being interested and puzzled once again.

  9. Fritz Casselman

    I can’t speak to the constitutional issues but let’s recognize that (a) we have a Democratic Attorney General, unlike all but one (Louisiana) of the states that filed suit right after the President signed the bill, and (b) even Charles Fried, Solicitor General under President Reagan, thinks the lawsuits are losers. Now, I hate to suggest that the suits are politically motivated, but . . . .

  10. L.K. Collins

    I agree, Mr. Stein, that the tension between the Tenth amendment and the interstate commerce clause is interesting. For many year, the interstate commerce clause has reinged supreme, but all know that it has limits, real limits, limits that are as political as they are legal.

    The question becomes where the limits really are and how the translate in law.

    Mr. Casselman, I think you are being naive. Any civil court issue involving a sovereign state or states is political. The fact that you disagree with their position does not make it ipso facto wrong.

  11. BP Myers

    Not quite sure what the commerce clause, which allows the legislative branch to regulate commerce between the states, has to do with penalizing an individual for not purchasing health insurance within a single state.

    As I’ve noted before, congress prohibits health insurance companies from even engaging in interstate commerce, i.e. selling their products among and between the several states.

    And how too does this square with the principle embodied in Roe v. Wade and elsewhere about the sacrosanct “right of privacy,” how all decisions regarding medical care (and one would think that health insurance or lack thereof would be included among them) are to be solely between a patient and a doctor?

    And what about the HIPPA laws, which proscribe punishment for anyone (including the government) for even accesing the health and insurance records of individuals?

    This is a naked power grab, pure and simple. If congress is allowed to mandate this, then what is to stop them from mandating exersize regimens or healthful eating? Aren’t they part and parcel of the same thing?

    As lunatic as the right-wing is on this issue, I do agree with them that this is just the sort of thing that makes me unable to recognize the country I grew up in. And put New York’s prohibition of school bake sales and outlawing salt in the same blender.

  12. The libertarian concerns of the individual mandate make for interesting policy debate, but not much of a constitutional one.
    The available constitutional claim, and the one the AGs make, is that although Congress clearly has the Commerce-clause authority to regulate the health-insurance industry, and thus activity that affects that industry (such as purchasing an insurance policy), the *absence* of activity cannot be considered an activity that has such an effect, and thus must definitionally fall outside the scope of the Commerce clause.
    There are several problems with that claim, but I will point out two that I consider critical. First, absence of activity can, and often does, have effects. Lunch-counter owners not serving black customers, for example. Striking dock workers not unloading cargo. You get the idea.
    Secondly, the AGs (and others) are erroneously defining the industry in question as the health insurance industry; in fact, Congress is regulating the much broader health *care* industry — which everybody uses. (Even if you could find someone who swore never to seek medical treatment or prescriptions, they are still participating in the system, b/c emergency responders and providers are obligated to provide those services in certain situations.)
    Thus, there is no class of people who have standing to claim that they fall outside of Congress’s authority to regulate under the Commerce clause. To use the common analogy, there are no people akin to those who can opt out of driving and thus avoid the auto-insurance mandate.

  13. Rich Carreiro

    There’s also a significant difference between the theories of the powers of the Federal government and the powers of the state governments.

    The federal government operates under an enumerated powers doctrine– the federal government only has the powers specifically granted to it by the US constitution. In other words, it can only do what the US constitution authorizes it to do.

    By contrast, state governments operate under a plenary “police powers” (that’s the term of art) doctrine — a state government has all powers other than what the US and state constitutions take away. In other words, it can do anything that the state and US constitutions don’t prohibit it from doing.

    So one answer to your question, Dan, would be that since (a) the US constitution (and case law around it) does not prohibit MA from requiring you to buy health insurance, and (b) the MA constitution (and case law around it) does not prohibit MA from requiring you to buy health insurance, MA has the power to require you to buy health insurance.

    By contrast (so say the people bringing the suits) the US constitution does not give the US govt the power to require such a purchase and therefore the mandate is ultra vires. And one response to that would of course be the interstate commerce clause and the taxing powers, with a response to that being the 10th Amendment.

    But in short, the federal and state doctrines of power are 180 degrees apart from each other.

  14. @David B – The thing that bothered me the most about the MA law (and now I’m wondering if it is structured as the federal law is being explained here) is that it was, as far as I know, the first time in history that any government has required you to enter into a contract with a private company solely for the privilege of living within their jurisdiction. The idea that it isn’t a mandate but a loss of a tax exemption is an interesting work around.

    However, I haven’t had health insurance since my first job out of college, and haven’t used any kind of medical service – not so much as an aspirin – since high school. What if I had tattooed on my forehead a message telling EMTs not to touch me if I got hit by a bus. Would that not give me standing to claim that I am being harmed by the personal mandate?

  15. @Rich Am I remembering this fact relating to your comment correctly? After the revolution the (unlimited) powers of the crown were assumed by the state governments, not the Continental Congress. The only powers the US government has, by contrast, are those explicitly given to it by the states. I can’t remember the case, but I’m fairly certain that was the ruling of the court somewhere along the line.

  16. BP Myers

    @David wrote: To use the common analogy, there are no people akin to those who can opt out of driving and thus avoid the auto-insurance mandate.

    The federal government does not require you to purchase auto insurance, so for that and other reasons this common analogy has always been a canard. But even the states do not require you to purchase it unless you drive on public roads.

  17. Steve Stein

    @Brian – but you can opt out for a fee (call it an “uninsured tax”), so is it really “requiring you to enter into a contract”?

  18. L.K. Collins

    Taking what Mr. Meyers says one step further…

    Most states require that the automobile owner have a policy that covers the automobile that is owned AND registered.

    People with drivers licenses are not required to have insurance as part of the licensing.

  19. @Steve – Sure, I suppose you could call it that, but then you get into the bill of attainder issues others have brought up.

    More to the point, I think the appropriate comparison would be that to say you could opt out of obeying the speed limit, and instead pay a “speeding tax.” It doesn’t work like that.

  20. BP Myers

    Hell, if they were going to use the auto insurance model for health insurance, they’d force the insured to pay for the uninsured. There’d be a line item on your health insurance policy: Damage caused by uninsured person.

    Come to think of it . . . that makes more sense. More honest, at least.

  21. Mike Stucka

    Many of these questions were heard, and heard again, e.g.:

    Sure, you can decry John Adams as a foreign terrorist appeaser. But seeing as how the Constitution’s authors were rather active at the time, I find it hard to think that a Constitutional objection today would succeed.

    A readable summary:

  22. BP Myers

    @Mike wrote: I find it hard to think that a Constitutional objection today would succeed.

    The way I read it, the money deducted went directly to the treasury, not to a private company. It was directed to building hospitals for the seaman, and if you weren’t a seaman, you didn’t have to pay.

    It is not unconstitutional to mandate people pay taxes to the federal government. If the federal government wishes to use those taxes to build hospitals and provide healthcare, I suspect that is in their power as well.

    The constitutional question is whether they can force me to do business with a private company or industry I abhore.

  23. Mike Stucka

    BP: I’m not a lawyer either, nor an expert on the bill. But I see two possible disputes in four words of what you wrote: “mandate people pay taxes.”

    As I understand it — take this with a huge cavern of salt — coverage is not mandated. You can be penalized if you don’t have it, yes, but that’s not a mandate. And in fact something like 15 million Americans would still not have coverage, right?

    There are opt-outs for religion (several) and nationality (Indian).

    There is no requirement that you give your money to any particular company, if I understand correctly. So it’s not like you’re required to tithe to the Dutch East India Company — at least, provided there’s enough competition, this argument could stand.

    Finally, taxes — is it a tax or a user fee or what? That line often gets blurred.

    As another example: I think many state governments (and the feds may have a role at the higher levels) effectively mandate payments to private pharmaceutical companies already to get government benefits. Don’t like Sanofi-Pasteur? Fine, skip that vaccination, but your kid isn’t going to public school.

    Just some thoughts. Again, I don’t have a clue whether this bill will ultimately be splendid, good, mixed or awful. But I found myself looking at health care spending estimates (~75 percent increase over next 9 years) and knowing neither my family nor my employer can eat that kind of inflation. I think -some- type of reform was needed. Whether this is the best possible or the worst idea ever, there didn’t seem to be other reforms in line … And I think that’s a shame, because the health-care reform debate became known more as a for-or-against ObamaCare, when doing wasn’t much of an option.

  24. The argument that the government should not compel all citizens to buy a type of product is, as I suggested, a good policy discussion. But it’s not much of a Constitutional argument. The Commerce clause, and the rest of Article II Section 8, make no distinction of that nature, and nothing in the Bill of Rights addresses it. Sometimes, as in this case, libertarian concerns are a matter of policy debate, not Constitutional prohibition.

  25. Steve Stein

    The NY Times has a post up with six legal experts (Jack M. Balkin, Yale Law School; Randy Barnett, Georgetown Law School; Abbe R. Gluck, Columbia Law School; David B. Rivkin and Lee A. Casey, counsel in the Florida lawsuit and James F. Blumstein, Vanderbilt Law School) addressing these questions here.

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