Three questions about those legal challenges

Dan:

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:

http://healthcarereform.nejm.org/?p=2764

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.
David

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.

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…

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.

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.

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.

@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?

@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.

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.

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.

@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.

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.