Question about the alleged health insurance "mandate
Ilya Somin
isomin at gmu.edu
Tue Mar 23 13:05:27 PDT 2010
It is true that "not buying" has economic effects. So does not doing virtually anything of any importance.
That does not make all refusals to engage in activities themselves "economic activity." If I decide not to get married, that will surely have economic effects. It does not follow that the state of being single is "economic activity." In the case of corporations required to buy insurance, the "economic activity" being regulated is presumably that of becoming a corporation engaged a particular type of business.
I agree that the constitutional case for the law would be stronger if it merely stated that people who choose not to purchase health insurance are not allowed to get free emergency room care paid for by the government. But that of course is not what it says.
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
----- Original Message -----
From: Frank Cross <crossf at mail.utexas.edu>
Date: Tuesday, March 23, 2010 3:57 pm
Subject: Re: RE: Question about the alleged health insurance "mandate
>
> I appreciate that Ilya. I was just addressing
> the "tax on living" argument. Which seems
> rhetorically powerful, but it is easily negated
> by a trivial exception, which perhaps shows its intrinsic weakness.
> The Commerce Clause argument is more refined. It
> seems like a leap to say that "not buying" is
> economic activity. Though you could say it
> was. Not buying surely has economic
> effects. And if it is posed as an alternative to
> taking free care in an emergency room, I suppose
> it could be characterized as economic activity,
> because it is simply ensuring that someone pay
> for services they will use. Government requires
> corporate entities to obtain insurance in various contexts
>
>
> At 02:42 PM 3/23/2010, Ilya Somin wrote:
> >The fact that a regulation exempts some classes
> >of people doesn't mean that it is a regulation
> >of economic activity as opposed to the lack
> >thereof, which is the key issue from the
> >standpoint of current Supreme Court precedent.
> >
> >The mere fact of being a person who does not
> >fall within the religious exemption (or the
> >several other exemptions in the act) is not economic activity.
> >
> >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
> >
> >
> >
> >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] 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.
> <<mailto:jhumbach at law.pace.edu>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 --
> <mailto:jhumbach at law.pace.edu>jhumbach at law.pace.edu>>personal
> homepage: <http://humbach.net>humbach.net
> >>
> >>-----Original Message-----
> >>From: Miller, Darrell (mille2di) [ mailto:mille2di at ucmail.uc.edu]
> >>Sent: Tuesday, March 23, 2010 11:57 AM
> >>To: 'Eric Segall'; Humbach, Prof. John A.;
> >><mailto:CONLAWPROF at lists.ucla.edu>CONLAWPROF at lists.ucla.edu;
> >><mailto:crgreen at olemiss.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:
> >><mailto:conlawprof-bounces at lists.ucla.edu>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:
> >><mailto:jhumbach at law.pace.edu>jhumbach at law.pace.edu;
> >><mailto:CONLAWPROF at lists.ucla.edu>CONLAWPROF at lists.ucla.edu;
> >><mailto:crgreen at olemiss.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."
> >> <<mailto:jhumbach at law.pace.edu>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 --
> <mailto:jhumbach at law.pace.edu>jhumbach at law.pace.edu>>personal
> homepage: <http://humbach.net>humbach.net
> >>________________________________
> >>From:
> >><mailto:conlawprof-bounces at lists.ucla.edu>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/>
> >>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:
> >><mailto:conlawprof-bounces at lists.ucla.edu>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 --
> <mailto:jhumbach at law.pace.edu>jhumbach at law.pace.edu>>personal
> homepage: <http://humbach.net>humbach.net
> >>
> >>
> >>_______________________________________________
> >>To post, send message to
> >><mailto:Conlawprof at lists.ucla.edu>Conlawprof at lists.ucla.edu
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> >>
> >>_______________________________________________
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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
> >><mailto:lsolum at gmail.com>lsolum at gmail.com or
> >><mailto:lsolum at illinois.edu>lsolum at illinois.edu
> >>
> >>--
> >>
> >>http://lsolum.typepad.com/legaltheory/
> >>(blog)
> >><http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=327316>http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=327316
> >>(ssrn page)
> >><http://home.law.uiuc.edu/~lsolum/>http://home.law.uiuc.edu/~lsolum/
> >>(personal home page)
> >><http://www.law.uiuc.edu/faculty/DirectoryResult.asp?Name=Solum,+Lawrence>http://www.law.uiuc.edu/faculty/DirectoryResult.asp?Name=Solum,+Lawrence
> >>
> >>(homepage at the University of Illinois College of Law)
> >><http://www.phil.uiuc.edu/faculty/list/Solum/index.htm>http://www.phil.uiuc.edu/faculty/list/Solum/index.htm
> >>(homepage at the University of Illinois Department of Philosophy)
> >><http://www.pbase.com/lsolum/root>http://www.pbase.com/lsolum/root
> >>(photography galleries)
> >>
> >>Assistant: Amy Fitzgerald
> >>(217) 333-9115 / <mailto:amfitzge at law.uiuc.edu>amfitzge at law.uiuc.edu
> >>_______________________________________________
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> >
> >Frank B. Cross
> >Herbert D. Kelleher Centennial Professor of Business Law
> >McCombs School of Business
> >University of Texas
> >CBA 5.202 (B6500)
> >Austin, TX 78712-0212
> >512.471.5250
> >_______________________________________________
> >To post, send message to Conlawprof at lists.ucla.edu
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>
> Frank B. Cross
> Herbert D. Kelleher Centennial Professor of Business Law
> McCombs School of Business
> University of Texas
> CBA 5.202 (B6500)
> Austin, TX 78712-0212
> 512.471.5250
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