Question about the alleged health insurance "mandate

Tue Mar 23 12:23:51 PDT 2010

An even simpler counterargument than the one Mark mentions is that there are many people who don't get sick enough to need emergency rooms or choose to treat their ailments in other ways. 

In any event, I don't think the federal government can use its own benefit programs (or those of states) to bootstrap an ability to regulate noncommercial inactivity that it otherwise could not regulate under the Commerce Clause. At most, it could potentially make the purchase of health insurance a condition without which you can't get free emergency service  that would otherwise be supplied by federal law. But the recently passed bill of course isn't structured that way.

Ilya Somin
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339

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On the point below about "people who refuse under any circumstances to go to doctors" - if they do so for religious reasons, the Act gives them an exemption from the individual mandate.

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark S Kende
Sent: Tuesday, March 23, 2010 2:12 PM
To: lsolum at gmail.com; 'Humbach, Prof. John A.'
Cc: CONLAWPROF at lists.ucla.edu
Subject: RE: Question about the alleged health insurance "mandate

I just got out of class where we discussed some of these issues.  Isn't there another baseline issue besides the one Prof. Solum mentions? This came up in class.  Prof. Barnett's notion of the individual being forced to buy a product may be problematic.  If that individual suddenly becomes severely ill, the person will go to the emergency room.  Federal law requires that they be treated until stable.  This is the broader context in which the individual lives.  Most people will buy that emergency product.  Indeed, the individual may have paid taxes that play a role in their medical treatment.  Assuming for the sake of argument that the health reform plan will make such emergency room visits less likely, and thus save at least that money, then the law is not doing anything coercive or problematic in terms of regulating other than potentially saving millions of dollars nationally.  In other words, the power of Prof. Barnett's example requires abstracting away the real baseline context of the situation.  To put it differently (using Raich like language), the baseline involves a comprehensive regulatory scheme that includes the availability of those emergency room visits among others.  I suppose one, among many possible counter-arguments, would be that there are people who refuse under any circumstances to go to doctors.  Another would be that this Court generally does not engage in this kind of "baseline" analysis.  But I do think this argument raises useful questions about the lone individual who is supposedly inactive re. the health market.

P.S.  My apologies if this has duplicated any of the numerous earlier posts which I have tried to keep up with.

Professor Mark Kende
James Madison Chair in Constitutional Law
Director, Drake Constitutional Law Center
Drake Law School, 2507 University Ave.
Des Moines, IA 50311, USA
515-271-3354 (ph), 515-271-1858 (fax)
mark.kende at drake.edu

Author, Constitutional Rights in Two Worlds:  South Africa and the United States (Cambridge University Press, 2009), http://www.amazon.com/Constitutional-Rights-Two-Worlds-Africa/dp/0521879043

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Lawrence Solum
Sent: Tuesday, March 23, 2010 11:33 AM
To: Humbach, Prof. John A.
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: Question about the alleged health insurance "mandate

Please forgive me if this point has been made before.  The tax/penalty question is not an easy one if it is taken seriously.  I take it that much of the discussion is predicated on the assumption that the Court will not make a good faith effort to distinguish a valid tax from a penalty--in part because prior jurisprudence is indicative of a deferential approach to this question.

If the question were taken seriously, there are two significant conceptual issues.  The first is the baselines problem.  The attempts to collapse tax benefits for X and tax penalties for not X is predicated on the assumption that there is no "natural" baseline, but that is obviously a deep question.  The no-baselines position can't be assumed as a starting point.  The second issue concerns the question whether there is a functional or conceptual difference between a tax and a penalty.  Once again, the no-difference position cannot be assumed; it must be sustained by argument.  I am not attempting to shift the burden of persuasion: the same criticism could be made of those who assume (but do not argue) that there obviously is a baseline or there obviously is a difference.

As I have followed the discussion on the list, it seems as if much of the disagreement can be explained by assuming different priors (or assumptions) on these two issues.

Larry
On Tue, Mar 23, 2010 at 10:12 AM, Humbach, Prof. John A. <jhumbach at law.pace.edu<mailto:jhumbach at law.pace.edu>> wrote:
"I pay a tax for my not owning a house?"

Yes, and people who don't stay single are subject to a marriage penalty, and so it goes...

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<mailto:jhumbach at law.pace.edu>
personal homepage: humbach.net<http://humbach.net>

-----Original Message-----
From: Miller, Darrell (mille2di) [mailto:mille2di at ucmail.uc.edu<mailto:mille2di at ucmail.uc.edu>]
Sent: Tuesday, March 23, 2010 11:57 AM
To: 'Eric Segall'; Humbach, Prof. John A.; CONLAWPROF at lists.ucla.edu<mailto:CONLAWPROF at lists.ucla.edu>; crgreen at olemiss.edu<mailto:crgreen at olemiss.edu>
Subject: RE: Question about the alleged health insurance "mandate

Isn't that exactly the flip side of the home-owners deductions.   I don't want to own a house, most who own a house gets a deduction, I pay a tax for my not owning a house?

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu> [mailto:conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>] On Behalf Of Eric Segall
Sent: Tuesday, March 23, 2010 11:46 AM
To: jhumbach at law.pace.edu<mailto:jhumbach at law.pace.edu>; CONLAWPROF at lists.ucla.edu<mailto:CONLAWPROF at lists.ucla.edu>; crgreen at olemiss.edu<mailto: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<mailto: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<mailto:jhumbach at law.pace.edu>
personal homepage: humbach.net<http://humbach.net>
________________________________
From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu> [mailto: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<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<mailto: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<mailto:jhumbach at law.pace.edu>
personal homepage: humbach.net<http://humbach.net>

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Lawrence Solum
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