Question about the alleged health insurance "mandate

Tue Mar 23 12:40:00 PDT 2010

Readers of this thread may be interested in Adam Winkler's piece for the
Daily Beast:
http://www.thedailybeast.com/blogs-and-stories/2010-03-23/how-to-kill-health-care-in-court/

Here is an excerpt: "Earlier this year, the Roberts Court invalidated a
campaign-finance law that banned corporations from spending shareholders’
money to influence federal elections. Such laws have been a prominent
feature of campaign-finance law for over a century. The court itself had
upheld corporate political spending restrictions in candidate elections, the
very provision upheld less than a decade ago by the Rehnquist Court.

In cases from abortion rights to affirmative action, the Roberts Court has
already shown itself to be one of the most activist courts in recent memory.
The court’s conservatives aren’t any more likely to support President
Obama’s health-care agenda than the conservatives in Congress. Justice
Anthony Kennedy, the swing vote on the court, is known to be a libertarian
who probably won’t find much to like in the individual mandate.

Health-care opponents’ arguments against the law are without merit. But that
doesn’t mean those arguments won’t be successful in the Supreme Court."

On Tue, Mar 23, 2010 at 1:13 PM, Frank Cross <crossf at mail.utexas.edu> wrote:

>
> Interesting and seemingly to me an indictment of constitutional legal
> analysis of a sort.  The bill exempts those who reject going to doctors for
> religious reasons.  So it's not a tax on living.
> You could choose not to go to a doctor for religious reasons and avoid the
> tax.  Now, of course, that is a trivial, trivial exception.  But the problem
> with traditional legal analysis would seem
> to elevate it to considerable importance.  Qualitatively, this is not a tax
> on living.  It can be avoided.  No?
>
>
>
> At 01:48 PM 3/23/2010, Theodore Ruger wrote:
>
> Content-Language: en-US
> Content-Type: multipart/alternative;
>
> boundary="_000_2196AA0C9A8D744782ACBC4B1EB25FEA017A35A2B7Processnetlaw_"
>
>
> 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<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<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> 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
> personal homepage: humbach.net
>
> -----Original Message-----
> From: Miller, Darrell (mille2di) [ mailto:mille2di at ucmail.uc.edu<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;
> 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<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; 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<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 <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
>
>
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>
> --
> Lawrence Solum
> John E. Cribbet Professor of Law, & Professor of Philosophy
> Co-Director, Program in Law and Philosophy
> Co-Director, Program in Constitutional Theory, History and Law
> University of Illinois College of Law
> 504 East Pennsylvania Avenue
> Champaign, IL  61820-6909
> lsolum at gmail.com or lsolum at illinois.edu
>
> --
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>  Frank B. Cross
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-- 
Lawrence Solum
John E. Cribbet Professor of Law, & Professor of Philosophy
Co-Director, Program in Law and Philosophy
Co-Director, Program in Constitutional Theory, History and Law
University of Illinois College of Law
504 East Pennsylvania Avenue
Champaign, IL  61820-6909
lsolum at gmail.com or lsolum at illinois.edu

--

http://lsolum.typepad.com/legaltheory/
(blog)
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(ssrn page)
http://home.law.uiuc.edu/~lsolum/
(personal home page)
http://www.law.uiuc.edu/faculty/DirectoryResult.asp?Name=Solum,+Lawrence
(homepage at the University of Illinois College of Law)
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Assistant: Amy Fitzgerald
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