My analysis of the constitutionality of the health care law’s individual mandate, Part 2

By Brian S

As I noted yesterday, the primary argument against the individual mandate is that the mandate represents an unconstitutional expansion of the commerce power.  Proponents add that the mandate’s penalty would qualify as a tax and thus it would be lawful under the tax and spend power. Before we go into the arguments, we need to frame the question: what exactly is the individual mandate and what does it do?

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§ 1501 of the PPACA establishes the individual mandate. Under this section of the bill, every individual in the United States other than those with religious conscience objections, those incarcerated and people not in the country lawfully are required to maintain the minimum insurance requirements under the title. See PPACA, § 5000a(d). Thus, under the law everyone – regardless of age, income, or citizenship (US citizens and legal resident aliens are included) status – is required to maintain the minimum requirements.  Now, there are a number of exemptions, but the text of the law reads that the exemptions are not to the requirement, but to the penalty. PPACA § 5000a(e) reads “Exemptions- No penalty shall be imposed under subsection (a) with respect to…” and the categories include individuals who cannot afford coverage (meaning that the cost would be more than 8% of their monthly income), those under the poverty line, members of Indian tribes, those without coverage for only three months and those with a “hardship” as determined by the Secretary of HHS (it may also be the Secretary of the Treasury, as this language is an amendment to the Interval Revenue Code and under 26 U.S.C. § 7701(11)(b) when the term “Secretary” is used in the IRC, it means the Secretary of the Treasury). In addition to these exemptions to the penalty, there is a blanket provision that waives all criminal penalties included in the tax code for failing to pay the penalty and does not allow liens or levies on property to force individuals to pay the penalty. See PPACA, § 5000a(g)(2).

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This fact has led Ezra Klein and Lowell over at Blue Virginia to argue that this isn’t actually a mandate, because it has no teeth.  Wrong.  The requirement that every individual in the country other than those who are incarcerated, religious objectors or illegal is the mandate. The mandate is enforced by the penalty I noted yesterday. The fact that the IRS won’t lien your house or have you prosecuted for tax evasion does not mean that the penalty goes away. There are far more ways of collecting this penalty than liens and the threat of prosecution. The IRS can choose to audit anyone who fails to pay the penalty, they can take the penalty from your tax refund, among other ways. Anyone who doesn’t believe the IRS can find ways to collect this penalty that don’t qualify as levies or liens is being overly generous. Lowell argues that “That’s right, you have the option of buying health insurance or not buying health insurance.” The option being not buying insurance and paying the penalty. That’s like saying you have the option of driving the speed limit or exceeding the speed limit – if you exceed it, you just have to pay the penalty. That argument isn’t going to hold water.

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Based on the plain language of the statute, the law requires all individuals maintain the minimum required health insurance plan or face a penalty. Yes, there are exemptions to the penalty, and yes certain sanctions are waived (and the fact that only three specific sanctions were waived, not all possible sanctions like audits or garnishing a refund indicates to me that Congress intends the IRS to try and collect the penalty) but in the end the individual mandate is what it appears to be – an affirmative requirement that all individuals within the United States maintain a minimum level of health insurance.  Since the law does not allow for individuals to buy into public run health plans, like Medicare, Medicaid, Tricare or state run plans (unless, like Massachusetts, they can under state law), this necessarily requires that each individual contract with a private entity for their insurance. That requirement is completely novel in federal law. There is no other provision of federal law that requires all residents – not just citizens, but all legal residents not religiously objecting, incarcerated, or Indian tribal citizens – to purchase a product.

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While the mandate is unprecedented, that does not necessarily mean that it is unconstitutional. In order to make that determination, we need to take a look back at the law I discussed yesterday.  The foundation of the Lopez and Morrison decisions was to make it clear that the Commerce Clause has its limits. As stated in Lopez, if the Commerce Clause allows Congress to regulate any kind of economic activity or non-economic activity that has a tangential relationship to economic activity, “Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody) … [u]nder these theories, [it] is difficult to perceive any limitation on federal power…” Lopez, 514 U.S. at 564. The thrust of the Lopez and Morrison decisions is that the Supreme Court will likely frown upon any argument made in favor of a regulation, if accepted by the Court, would allow Congress plenary authority to regulate anything. This isn’t a novel position – even in Jones & Laughlin, the court noted that any reading of the Commerce Clause “must be considered in the light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.” Jones & Laughlin, 301 U.S. at 37.

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The Commerce Clause has been stretched about as far as I believe it can go, and in the case of the laws invalidated by Lopez and Morrison, even beyond its outer limits.  The individual mandate in the PPACA represents another attempted expansion, and the same slippery slope arguments the Court used to invalidate the laws in Lopez and Morrison are found in the PPACA. The Obama Administration and the Democrats in Congress have made it clear they view health insurance reform to be key to their economic policies, and, indeed, § 1501 of the PPACA includes the economic findings that the Lopez decision demanded (although economic findings in the Morrison case did not save the law there). But the difference between all of the previous Commerce Clause cases we’ve seen is that none of them required an affirmative purchase of a commodity as a condition of being a resident of the United States.  Congress clearly has the authority to prohibit the manufacture of things (Wickard), or prohibit the transfer of things across state lines (the Lottery Case). It has the authority to regulate economic activity (Jones & Laughlin and Darby) or non-economic activity that has a substantial effect on interstate commerce (Heart of Atlanta Motel).  But there is no precedent that would allow Congress, under the Commerce Clause, to require an individual to purchase something regardless of whether or not they actually want or need the thing.  That kind of a regulation is one that seems to fly in the face of the liberty interests the Constitution was designed to protect.  More important to our legal analysis, however, is the potential precedential effect finding this legislation lawful would create. Congress would now be free to use blanket mandates requiring individuals residing in the United States to purchase whatever goods and services Congress feels they should purchase. Congress could require we all purchase electric cars, or solar panels to heat our homes. They could require we all purchase life insurance or broadband internet. Where would the line be drawn?

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Because of the potential impact allowing this individual mandate to stand could cause, I believe the Supreme Court will find it unconstitutional. Lopez and Morrison make it clear that the Commerce Clause has limits, and this legislation blows those limits wide open.

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Proponents of the bill argue that Lopez and Morrison are distinguishable from the rest of the Court’s Commerce Clause jurisprudence as both of those cases dealt with criminal statutes regulating what was clearly non-economic activity. They believe that health insurance regulation is economic activity, and economic activity that can be regulated by Congress. In this, at least, they are correct. While insurance regulation in general has long been a province of the state governments, the Supreme Court has held that the Commerce Clause does permit federal regulation of the insurance industry. See United States v. Southeastern Underwriters Ass’n, 322 U.S. 533 (1944). Yet these arguments ignore the basis for the holdings in Lopez and Morrison – namely, that the Commerce Clause must have limits. Allowing Congress to force individuals against their will to buy a private commodity obliterates the concept that the Commerce Clause has limits. And that contradicts the holdings in Lopez, Morrison and Gonzalez v. Raich.

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Without the predicate Commerce Clause authority, it is unlikely the court will allow the law to stand on a Tax and Spend Clause basis.  As I noted yesterday, there is still good law on the books making it clear that Congress cannot use the tax and spend power to engage in behavior that is outside its jurisdiction on some other basis. See Child Labor Tax Case, 259 U.S. 20 (1922). The argument that the penalty here is actually a tax is undercut by the same arguments that Klein and Lowell Feld used before – namely, that the penalty isn’t really a penalty at all. If it’s not really a penalty, it can’t really be a tax. Taxes are enforceable by law and the government can lien and levy against property to pay them. Under Klein’s argument, this penalty is more like a donation. If that’s the case, that would undercut any kind of Tax and Spend Clause argument.

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In addition to the argument I’ve made above, AG Cuccinelli’s complaint also focuses on the idea that the health insurance reform law is not regulating economic activity, as the requirement to purchase insurance is linked to residency, which is a passive characteristic, not an active one. This argument feeds into the argument that unlike most other Commerce Clause cases where Congress was trying to prohibit some kind of behavior, this is a case where they are trying to promote behavior – but not through incentives, but through requirements and penalties. I don’t know how strong this argument is, because I believe it likely that the Court will hold that the activity being regulated by the PPACA is economic, but I do believe the rest of his arguments hold merit.

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I’d written up a standing discussion, but in the interests of brevity, I’m going to leave it out. Even if the AG’s don’t have standing, once the penalties kick in someone will, and the case will have to be decided on the merits.

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From what I understand of the way this law is written and the Court’s Commerce Clause jurisprudence, I believe that Congress is without the requisite enumerated or implied power to enact an individual mandate under the Commerce Clause or the Tax and Spend Clause of Article I. Thus, those provisions are unconstitutional and should be struck down. That being said, I do not believe that the entire law should be struck down, as much of it is a valid exercise of Congressional authority. But the mandate is an unprecedented attempt by the government to interfere with our liberty interests and should be struck down. No government that calls itself democratic and a protector of the rights and liberties of its citizens should have the power to compel its citizens to buy goods and services the government deems necessary.


Comments

  • Brian S. says:

    Article I, Section 8 includes a clause that states “To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;”
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    Thus, Congress was given an express grant of authority to regulate the militia, and their requirement is not predicated on some strained Commerce Clause analysis.

  • Dan says:

    I applaud you Brian. Way to try to bring the thread back on track. I fear your chances of success at this point may be slight.

  • Dan says:

    shredder, I deeply resent your attack on the insane. We have feelings too. Please refrain from being such a bigot in the future.
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    While I happen to agree that this law will hold up under scrutiny of the courts, I can readily understand why someone would not feel compelled to enter into an exchange about 18th century laws. And even those of us who freely admit to the possibility of our own mental instability generally display the good sense not to use Hitler or Nazi analogies when making an argument.

  • Dan says:

    On topic, no lesser light than South Carolina Lt. Governor Andre Bauer thinks this law is completely constitutional. That’s why he is calling for a constitutional convention to deal with it. He says that is the only way.
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    Did I mention that Andre Bauer is batshit crazy? Even by South Carolina standards.
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    He is one of the main reasons no one had any stomach for impeaching Sanford. The Republicans in South Carolina (not known for their sanity or stability) all think Bauer is a total loon. They preferred to keep Sanford even with all his issues.
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    They made the wise choice.

  • shredder says:

    Brian, good point. But I wasnt arguing that the 1798 law was passed under the authority of the commerce clause; I was merely citing that law as proof that congress has, contrary to the claims of many, in the past required that citizens purchase or obtain a product. I was refuting the following: “No government that calls itself democratic and a protector of the rights and liberties of its citizens should have the power to compel its citizens to buy goods and services the government deems necessary.”

    I stand by that refutation.

    Dan, the point of Godwin’s law is to prevent the use of unfair ad hominems and keep discussions on a rational level, not to prevent the accurate citation of history. Of course, it is completely unacceptable to call anyone a nazi, or for that matter a bigot, a homophobe, etc without some legitimate basis for doing so. But people should not be allowed to get away with calling their political opponents cockroaches without being called on it. It’s a specific term with specific historical significance, and it’s important to be able to point that out.

  • Brian S says:

    Shredder, again, not all citizens. The militia at the time period was made up of all of the able bodied men between certain ages. It didn’t include slaves, women or children. The government wasn’t telling them they had to buy products as a consequence of their being citizens. The men were told to be sure they had sufficient supplies on hand in order to fulfill their obligations to the militia. There was no regular police force, and the army was a shadow of what it could become. The militia was the only organized force to defend the law back then. It’s not the same thing.
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    The health care bill applies to anyone legally in US territory. Women, children, legal resident aliens, everyone. That’s unprecedented.

  • Cato the Elder says:

    “But people should not be allowed to get away with calling their political opponents cockroaches without being called on it. It’s a specific term with specific historical significance, and it’s important to be able to point that out.”
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    Except for the fact that your story isn’t true. Nowhere will you find Hitler comparing Jews to cockroaches, either in the texts of his speeches or in the pages of Mein Kampf. It simply isn’t a part of the historical record.
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    People should not be allowed to conjure Nazi myths out of thin air to smear opponents without being called out on it, which is why you were told to go fuck yourself in the first place.
    *
    What is consistent, however, is that the primary rhetorical device Hitler used to stir hatred was class envy (Jews took your money, they’re so rich, etc. etc.). That should be a bit troubling for you as a so-called progressive, I’d think. If you’re trying to find a swastika here I’d suggest a look in the mirror.

  • shredder says:

    It doesnt matter whether or not Hitler himself did it – it’s enough that the Hitler, the Nazis and other totalitarians have used various forms of “vermin” to dehumanize their opponents to pave the way for their elimination. The Nazis portrayed Jews as rats and diseases. You really want to distinguish cockroaches? By the way the cockroach imagery was part of the genocide in Rwanda. And elimination is what you’re after isnt it? How else to explain your comment about finding it offensive that “you people breathe air.” Nice try with the projectionism though. You want to eliminate your opponents but you cant admit it to yourself so you convince yourself we’re the ones who do that. That’s projection. Like I said, shrink time dude…

  • shredder says:

    Brian, I didnt say all citizens. Besides, the HCR law has lots of exemptions: military, those on medicare, and other categories. So you’re wrong on the facts. There is precedent for such a requirement. However, your best argument would be that it would be a case of first impression since, as far as I know, the gun requirement was never challenged in court.

    The tax power covers it, and the commerce clause issue need not be ruled upon. I expect that’s how it will turn out.

  • Cato the Elder says:

    “I remind you – that’s what Hitler did” “That’s what Hitler called the Jews.”
    “It’s a specific term with specific historical significance”
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    “It doesnt matter whether or not Hitler himself did it ”
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    Why do progressives lie through their teeth and then sputter with outrage when they get caught? I guess I’m a Hutu now instead of a Nazi.

  • shredder says:

    Keep evading the issue. Im not outraged, but Im still breathing air, and so will the HCR for for many years to come. And after the lawsuits are dismissed, and the benefits of this law are recognized more widely, and folks get de-programmed of all the disinformation from the right, we’ll add a public option or if we’re really smart, single payer and actually be in a better position to compete with other countries which will help the economy not to mention bring down the deficit, as has been documented. Gonna have to learn to live with it, and us. Medicare didnt end America like folks of your ilk said it would, people love it, and neither will this moderate measure of reform. Whose spouting outrage? Whose calling their opponents cockroaches? But hey dont let me stop ya. This is getting fun.

  • Cato, how and why do you know Hitler never compared Jews to cockroaches? This seems like odd information to which to be so certain.

  • Brian S says:

    Shredder, as I noted in the article, the exemptions are not to the requirement – they are to the penalty. The requirement is a blanket one. There are plenty of ways to fulfill the requirement, but it is a mandate on every single individual residing within the territory of the United States, citizen or not (as long as they’re legal, not an Indian and don’t have a religious objection – which usually means Christian Scientists).
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    Given the fact that there are no criminal penalties for failing to pay the penalty, and the IRS can’t lien your house or levy your property, I think it’s a tough argument to call the penalty a tax. Further, as I noted in my first post, there’s good law still on the books where the Supreme Court has held that Congress can’t use the tax power to engage in behavior that it would otherwise not have the power to implement. If there’s no Commerce Clause authority as a predicate, there’s a good argument to be made that the tax power wouldn’t allow them, on its own, to do this.
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    I do agree with you that this is a case of first impression, but I don’t believe that your “precedent” with the militia act is on point. It is clearly distinguishable from the PPACA’s mandate.

  • Dan says:

    “Cato, how and why do you know Hitler never compared Jews to cockroaches? This seems like odd information to which to be so certain.”
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    Yeah, Cato! What were you doing during the war anyway?
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    And don’t give us any of that crap about being Swiss.

  • Cato the Elder says:

    “Cato, how and why do you know Hitler never compared Jews to cockroaches?”
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    I got curious myself and did a little research, after all I wanted to know if I was unwittiingly using a “historical significant term.” Just for kicks I also ran full context searches on Goebbels as well, and he never said anything like that, either.

  • I don’t think reading “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” as permitting a requirement that citizens insure themselves is more of a stretch than reading “To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress” as permitting a requirement that citizens arm themselves.

    Both give Congress the power to regulate something, and both laws regulate that something by requiring citizen action in the form of procuring something for themselves.

    And neither places its requirement on everyone. The Affordable Care Act requires this of “applicable individuals,” not “every single individual residing within the territory of the United States, citizen or not.” Even as you claim a “blanket requirement,” you list the exceptions.

  • shredder says:

    Brian,
    Since as you say there are no criminal or civil penalties, it’s wrong to say I’m calling the penalty a tax; rather, you are arbitrarily calling the tax a penalty.

    As to the constitutionality of the rest of the bill, I dont think anyone thinks the other parts of the bill violate the constitution. The “mandate” is not really a mandate,, but a tax to pay for the otherwise constitutional parts of the bill.

    Con law Prof. Jack Balkin reveals what’s really behind your argument thus:

    “Many important and popular government programs are based on Congress’s ability to give incentives through taxation and redistribute tax revenues for public purposes. To strike down the individual mandate the Supreme Court would have to undermine many years of precedents justifying these programs that stretch back to the New Deal (and in the case of the rules for direct taxes, to the very founding of the country).

    “Opponents of the individual mandate insist that they are only defending individual freedom, but they are actually taking a far more radical position. They are really claiming that it is unconstitutional to make Americans pay taxes. The Supreme Court, however, will not be fooled, and they will reject this challenge.”

    Now we see what’s really going on here: the ongoing and fruitless war on the New Deal and taxation itself. Good luck with that.

  • Brian S. says:

    R. Stanton, “organizing, arming and disciplining” clearly encompasses a requirement that all able bodied males comprising the militia have a suitable weapon available to use in duty with the militia. It doesn’t tell them how they are to comply with that requirement.
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    The Lopez court made it clear that the fundamental point of their holding was to demonstrate that the Commerce Clause has limits. If the government can tell you that you have to buy health insurance, is there anything it couldn’t tell you you have to buy? I argue that there would be nothing Congress couldn’t force you to purchase, and that’s in direct opposition to the Court’s holding in Lopez and Morrison.
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    You’re dealing with apples and oranges here. As I have already noted, the militia act was passed in accordance with an enumerated power of Congress. Until 1937, the Commerce Clause was never read as widely as it is today.
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    I have already point out in my analysis that “applicable individuals” includes everyone legally within the territorial jurisdiction of the United States who aren’t Indians, in prison or religious objectors. That’s a miniscule amount. It’s a provision that will apply to 95%+ of the population. The militia act didn’t. Barely half the population was covered by that.

  • Brian S. says:

    Shredder, I’m not calling the tax a penalty arbitrarily. I’m calling it a penalty because that is what it is called in the law. It’s never referred to as a tax. It’s referred to as a penalty. And as I already noted, if it truly is a tax, it doesn’t make much sense to make it tax that no one actually has to pay, as the exclusions from the penalty remove criminal sanctions, liens and levies – the three primary ways the federal government compels people to pay their taxes.
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    No one is arguing that Social Security and Medicare aren’t constitutional. They are. The Court has held that they are. And there’s a legitimate tax that is taken from every working American to pay for them. The penalty/tax including in the PPACA is completely different than the social security or the Medicare taxes. I would argue you would have a lot fewer constitutional problems if the penalty was actually a tax, collectible the same way taxes are, with criminal penalties. That would have created political problems, of course, so that’s why it was changed. But the change makes it constitutionally suspect.

  • shredder says:

    Brian
    After the Civil War the national economy grew exponentially; the Jeffersonian vision for America as a predominantly agrarian society was forever lost. It was only natural that the commerce clause would come to encompass more and more, since interstate commerce came to affect personal conduct more and more, and vice versa.

    And are you ok with the state of Virginia having the power to make you buy any product or service it deems necessary? Why does that not also pose a threat to freedom? If there are limits to the commerce clause, are there not also limits to the powers of states?

  • shredder says:

    The law may call it a penalty, but if it acts like a tax (and walks and quacks like one) the courts are likely to recognize that. A penalty that is not a penalty – very zen! I guess we’ll find out.

    BTW will the Cooch be able to overcome the standing hurdle given that the supremacy clause invalidates the Va law of nonimplementation on its face? The courts may not even reach the merits of all this.

  • Brian S says:

    Shredder, it took Franklin Roosevelt threatening to pack the court for the Court to change it’s tune on the Commerce Clause.
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    I am okay with the Commonwealth having that power because I have a greater chance of influencing the political processes on a local level – as all state citizens do – than I do at the federal level. The state governments in our system have general police powers – they can do anything not limited by their state constitutions or the federal constitution. There are plenty of things that the states can do that the Feds cannot. I have no problems with that.
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    The law calls it a penalty for exactly that point – it doesn’t walk and quack like a tax at all. How many taxes aren’t enforced with criminal penalties? How many taxes aren’t enforced through liens and levys? Is there another tax on the books that is so difficult to enforce? I’m not aware of any.
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    I think the AG has standing, as the Commonwealth has granted its citizens a right to be free from mandated health insurance at both the state and federal levels. If there was no federal mandate, the law would stand. As there is a mandate, before overturning the Commonwealth’s law, federal law presumes that only valid, constitutional laws are supreme over state laws. So before a court could grant summary judgment on a Supremacy clause basis, they would have to find the federal law was valid. And, like I said in the post, even if Cuccinelli does not have standing, someone at some point will, and the courts will have to decide the issue on its merits.

  • shredder says:

    Actually I believe federal laws are presumed constitutional until held invalid. And on summary judgment the issue is whether there are any remaining issues of material fact; the constitutionality of the federal law is not an issue of material fact; it is a question of law. In any event, the existence of the federal law, until it is invalidated, triggers the supremacy clause. Even Randy Barnett has admitted this.

    Your argument as to tax would also apply to a fine or penalty. And the IRS could presumably apply other measures to enforce. Thus, those subject to the tax would have a choice: pay the tax or purchase insurance. Not a mandate. The lack of traditional criminal and civil penalties reinforces this. Not a mandate. Not a penalty. A tax. A choice. And the purpose of the tax is to finance what you concede is the otherwise constitutional program, not to penalize.

    Back to the commerce clause. Declining to purchase health insurance inherently leads to other economic activity triggering the clause: using hospitals, or buying over the counter remedies, or borrowing money to pay for health care, etc etc. Thus, it is not true that a person merely does nothing; declining to purchase health insurance has a substantial effect on interstate commerce because of the nature of health care. The same is not true of requiring a person, e.g. to buy a Chevy. Dont buy the Chevy and you affect nothing. Dont buy health insurance and you quite possibly contribute (and many people contribute cumulatively significantly) to the collective effect on interstate commerce, one effect of which BTW is to put a huge drag on the economy and render us uncompetitive internationally. That arguably triggers the foreign commerce clause too. So I think the challenges are a waste of taxpayer money, and are politically motivated.

  • Brian S says:

    Shredder, my point about summary judgment is that in order to grant it, the court would have to determine the law. That’s the point. If there’s a standing question, it’ll get bounced before summary judgment on a 12(b)(1) or a 12(b)(6) motion.
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    As for the penalty question, if it’s a fine, then it would be considered punitive. If it’s punitive, it opens up all kinds of Due Process questions. Is the point of the penalty to penalize people for not buying insurance? Or is it to coerce them to buy it? Those are questions a court will have to decide.
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    How is the penalty designed to fund the program? The goal of the program is to have everyone in America purchase insurance – if the program achieves its goal, there would be no money coming in from penalties. That doesn’t make any sense.
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    As for the question about the mandate, you’re ignoring the plain language of the statute – the “requirement” to purchase insurance is considered a “requirement.” Like I noted with Lowell Feld’s “option” argument, you’re acting like there’s a choice when you pay your taxes – and that presumably going to jail is an option that someone can choose. That’s ridiculous. Taxes aren’t an option. They’re obligatory. That’s why they’re called taxes.
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    Your whole Commerce Clause argument is strained – and it is exactly that kind of strained logic that the court has foreclosed in Lopez. “To uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 556-558. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is [*568] truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we are unwilling to do.” Lopez, 514 US at 567-68.

  • shredder says:

    But the state has no standing if it has no legally cognizable interest, and its interest is based on a state law that conflicts on its face with a duly passed federal law that has not yet been declared unconstitutional. The state law is therefore null and void, and there goes the standing. The constitutional challenge would have to come from an individual first, unless the state law explicitly declares the federal law unconstitutional, and MAYBE not even then. .. The due process argument is specious. Again, the purpose of the tax (of if you want to call it a fine, requirement, whatever) is to pay for the program, not to penalize. There’s no way around that.

    There are no inferences at all comparable to those in Lopez. It is easily demonstrable that uninsured sick people will use hospitals and otherwise participate in interstate commerce because they dont have insurance. To regulate this “for the general welfare” in no way amounts to a police power – like so many other federal programs supported by taxation.

    Invalidating this law would be an act of judicial activism based on policy, dressed up as federalism.

  • Brian S says:

    Shredder, how exactly, under your logic, would any federal law that conflicts with a state law be held unconstitutional? The court has to make that determination before granting summary judgment – that would be the ground for the summary judgment. You can’t get the case before a court at all if you don’t have standing.
    .
    Again, how is it possible that this penalty is designed to fund the program when if the program achieves its goal no one would have to pay it? You’re being internally inconsistent.
    .
    Your commerce clause reasoning is exactly like the arguments the government made to uphold the gun free school zones act – they argued that guns in schools had an impact on interstate commerce, and then they went through a very similar logical train to the one you went through. If the Court upholds the law, there is little, if anything, the Congress could not regulate because nearly everything in modern life is tangentially related, through enough degrees of separation, to interstate commerce.
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    No one is arguing that the court should overturn the entire law. The only part of the law that I believe is unconstitutional is the mandate. That’s one section in a 2000 page law. It is not judicial activism to tell Congress they’ve overstepped their bounds.

  • shredder says:

    Brian, we’re talking past each other at this point, so Im inclined to leave it alone. Our most important difference at the end of the day, commerce clause aside, seems to turn on whether it is actually a mandate, or rather a tax incentive. I guess we’ll find out what the courts say about that and everything else soon enough. I stand by everything I’ve said. One other Q remains – since the law has no severability clause, do you think the rest of the law would go out the door if the “mandate” is tossed out? The controlling Q. there is whether congress would have passed the rest of it anyway. The democrats would have, dont you think? And if so, how effective will the exchanges really be in bringing needed competition? Obviously not very. So the effect of these lawsuits, if successful, is not likely to be very salutary from a policy perspective. And you have to admit the irony of the republican rejection of a fundamentally market-oriented reform measure that doesnt have a public option and is not single payer. Finally, I wonder why the “mandate” is so wrong now but it wasnt when the republicans themselves proposed it back in ’93. But these are political questions that dont really bear on our previous discussion.

    Thanks for the spirited and civil debate.

  • Brian S says:

    Shredder, any time. That’s what I’m here for. To answer your question about the severability clause, I don’t think it’s necessary in such a wide ranging piece of legislation like this. I know the fact that there isn’t one is included in the AG’s lawsuit, but I don’t believe the court will strike the entire bill down for one issue that doesn’t affect the overall thrust of the bill. Courts tend to construe laws with an emphasis on finding constitutionality, so I think it likely the courts wouldn’t knock the whole thing out.
    .
    I’ve pointed out before that the plan in 1993 was drafted before Lopez (1995) and Morrison (2000). Prior to 1995, I don’t think anyone would have questioned whether this law was constitutional – the great wait of the previous sixty years of commerce clause jurisprudence militated toward the Court allowing the expansion. After 1995, anyone proposing a mandate should have been forewarned.
    .
    Given how the mandate is enforced, I don’t think losing it will have too negative an impact on the overall rest of the bill. The tax breaks and other provisions designed to make it possible for those who can’t afford insurance to obtain it will still be in there. Whether or not that’s a good thing is a political question, as you’ve noted.

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