Question about the alleged health insurance "mandate

Eric Segall esegall at gsu.edu
Tue Mar 23 08:57:35 PDT 2010


No, you don't have to contribute, or for that matter work at all or save at all. I don't think it's the same thing at all. 

That's not to say some judge wouldn't find the analogy compelling (but only if he was predisposed to uphold the plan) (sorry)

>>> "Humbach, Prof. John A." <jhumbach at law.pace.edu> 03/23/10 11:52 AM >>>
"Has Congress ever imposed a tax on a decision not to buy a particular commodity...?"

Well, maybe, sort of.

I didn't want to use my savings to buy a 401(k) this year, but failing to do so would subject me to a couple of thousand dollars of extra income tax. A lot of people are faced with the same choice. Does this mean the government has imposed a "mandate" that people must buy 401(k)s?

John A. Humbach, Professor of Law 
Pace University School of Law 
78 North Broadway 
White Plains, New York 10603 
Tel. 914-422-4239  -- jhumbach at law.pace.edu 
personal homepage: humbach.net
-----Original Message-----
From: Eric Segall [mailto:esegall at gsu.edu] 
Sent: Tuesday, March 23, 2010 11:46 AM
To: Humbach, Prof. John A.; CONLAWPROF at lists.ucla.edu; crgreen at olemiss.edu
Subject: RE: Question about the alleged health insurance "mandate

Has Congress ever imposed a tax on a decision not to buy a particular commodity by a person who wishes to stay outside the field of regulation that Congress is occupying?

Of course, I agree that the law runs out on this (and most, if not all, constitutional issues), but that wouldn't stop the Supreme Court, or for that matter the Fourth Circuit or a conservative panel of another Circuit from invalidating the law.

Eric



>>> "Humbach, Prof. John A." <jhumbach at law.pace.edu> 03/23/10 11:32 AM >>>
When Randy says "the subject gets very complex very quickly.", what I think he means is that he has run out of law and has landed in the wilderness of pure speculation.

Going back to the Harrison Narcotics Act of 1914 and probably before, the Federal government has a long history of using taxes to regulate behavior that would otherwise be outside its constitutional reach.

As John Bickers has reminded us, the Internal Revenue Code has many such provisions.

And, BTW, the part of the new law on "individual responsibility' is clearly structured and imposed as a tax. While it seems that just about everybody insists on calling it a federal "mandate," I think that people may be being misled by their own inexact rhetoric.

John A. Humbach, Professor of Law
Pace University School of Law
78 North Broadway
White Plains, New York 10603
Tel. 914-422-4239  -- jhumbach at law.pace.edu
personal homepage: humbach.net
________________________________
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Christopher Green
Sent: Tuesday, March 23, 2010 11:21 AM
To: 'CONLAWPROFS professors'
Subject: RE: Question about the alleged health insurance "mandate

FWIW, Randy Barnett has a few notes on the just-a-tax argument here<http://www.washingtonpost.com/wp-dyn/content/discussion/2010/03/19/DI2010031902926.html?hpid=opinionsbox1>: "Calling a fine a 'tax' does not make it one. Otherwise the power of Congress would always have been unlimited."  (Dave Kopel makes the same point<http://volokh.com/2010/03/22/is-the-tax-power-infinite/>.)  The argument against the bill would not be, I think, that the Constitution forbids all tax-based pursuit of social policy, but that it puts at least some limits on it.  Barnett concedes that in trying to explain exactly what those limits are, "the subject gets very complex very quickly."

________________________________
From: John Bickers [mailto:bickersj1 at nku.edu]
Sent: Tuesday, March 23, 2010 9:54 AM
To: Humbach, Prof. John A.; Pohlman, Harold; Christopher Green; CONLAWPROFS professors
Subject: RE: Question about the alleged health insurance "mandate
As has been noted a couple of times on this list, the "individual mandate" is merely a tax matter.  People are required to maintain "minimum essential coverage" (which includes both current public and private plans).  The penalty for not doing so is $750 a year (per person, for a taxpayer with multiple dependents, but not more than three times the annual penalty).  The penalty escalates to the $750 level over time, beginning at $95 a year in 2014.  Inability to pay is an exception, as are incarceration, certain collaborative health care sharing ministries, other religious exemptions, and so on.  The penalty is a conventional tax penalty, administered by the IRS like any other, and not subject to a trial.  This last distinguishes it from cases like Lopez and Raich, where the government must prove beyond a reasonable doubt that one brought a gun near a school or possessed marijuana.  In fact, the health care reform act specifically eschews any criminal prosecution for failure to pay this increased tax.

This still seems to me an ordinary bit of the arcane wonderland that is the tax code, and I fail to see how any attempt to overturn it would not have to start from the premise that the federal government's attempt to shape American society through tax incentives, surtaxes, and penalties, was forbidden by the Constitution.  And I thought we gave up that idea a long time ago.

John Bickers
Salmon P. Chase College of Law
Northern Kentucky University

________________________________
From: conlawprof-bounces at lists.ucla.edu on behalf of Humbach, Prof. John A.
Sent: Tue 3/23/2010 10:04 AM
To: Pohlman, Harold; Christopher Green; CONLAWPROFS professors
Subject: Question about the alleged health insurance "mandate
Just out of curiosity, has anyone looked at the new law to see whether it in fact imposes a legal obligation to buy health insurance? Or does it merely levy an excise tax on people who self-insure?

John A. Humbach, Professor of Law
Pace University School of Law
78 North Broadway
White Plains, New York 10603
Tel. 914-422-4239  -- jhumbach at law.pace.edu
personal homepage: humbach.net





More information about the Conlawprof mailing list