# Justices signal possible trouble for health insurance mandate **URL:** \ **Category:** Great Debates\ **Created:** [March 27, 2012, 5:11pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961 "2012-03-27T17:11:45Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 28, 2012, 5:15pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/61 "2012-03-28T17:15:34Z")
> [@yorick73](#): > > The questioning on Monday seems to suggest that, no, you cannot just call it a tax. The word tax has a specific meaning (i.e. there is a direct benefit from the tax). Here, there is no benefit from the “tax” or penalty. I think it was Ginsburg that pointed out other taxes like that: when they’re working, they fail to raise revenue. Like taxes to discourage cigarette consumption. Aside to the board: am I the only one who doesn’t have a transcript or audio recording of the whole thing? ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [March 28, 2012, 5:29pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/62 "2012-03-28T17:29:47Z")
> [@RitterSport](#): > > Scalia made the slippery slope argument: “Everybody has to buy food sooner or later, so you define the market as food. Therefore, everybody is in the market. Therefore, you can make people buy broccoli.” I’m saying that, since everyone agrees that states can make you buy whatever the hell they want, and since that hasn’t led to states requiring you to buy things like broccoli and cars, that the slippery slope argument has no practical merit. I provided an alternative explanation for Scalia’s words, such that he was not making a slippery slope argument. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [March 28, 2012, 5:33pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/63 "2012-03-28T17:33:18Z")
> [@erislover](#): > > I think it was Ginsburg that pointed out other taxes like that: when they’re working, they fail to raise revenue. Like taxes to discourage cigarette consumption. I think the cigarette tax is an excise tax on the sale of a product. I guess you can already see the problem with that comparison. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 28, 2012, 5:49pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/64 "2012-03-28T17:49:10Z")
> [@AK84](#): > > THe Act dear boy not bill, the Act. It’s been passed and signed into law. Nitpick: It purports to be an Act. A law passed in violation of the constitution is void ab initio and hence it is nothing. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 28, 2012, 6:07pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/65 "2012-03-28T18:07:38Z")
You brought up the point about “benefits”, **yorick** , and I addressed it, given Ginsburg’s comments. I guess you see why that’s related to your comment. ---
**Author:** ![Kearsen](https://avatars.discourse-cdn.com/v4/letter/k/82dd89/32.png) [@Kearsen](https://boards.straightdope.com/u/Kearsen)\ **Post date:** [March 28, 2012, 6:11pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/66 "2012-03-28T18:11:17Z")
> [@Fotheringay-Phipps](#): > > I provided an alternative explanation for Scalia’s words, such that he was not making a slippery slope argument. Actually, you re-writing what was written in no way changes the fact that it isn’t still a slippery slope. Last I checked you didn’t need the slide down the slope to actually be happening to make that argument, merely the possibility. And it is clearly still possible. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [March 28, 2012, 6:12pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/67 "2012-03-28T18:12:22Z")
> [@jtgain](#): > > Nitpick: It purports to be an Act. A law passed in violation of the constitution is void ab initio and hence it is nothing. Nitpick: It is an Act until the Supreme Court says otherwise, and hence it something. ---
**Author:** ![jackdavinci](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackdavinci/32/3259_2.png) [@jackdavinci](https://boards.straightdope.com/u/jackdavinci)\ **Post date:** [March 28, 2012, 6:27pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/68 "2012-03-28T18:27:11Z")
> [@AK84](#): > > THe Act dear boy not bill, the Act. It’s been passed and signed into law. If my family can still call this 37 year old six foot two doper “the baby” and “little Jack” I can call an act “the bill”. 😉 But yeah, I wasn’t sure what to call it so thanks. ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [March 28, 2012, 6:29pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/69 "2012-03-28T18:29:04Z")
> [@RitterSport](#): > > Scalia made the slippery slope argument: “Everybody has to buy food sooner or later, so you define the market as food. Therefore, everybody is in the market. Therefore, you can make people buy broccoli.” Isn’t the obvious difference that even if you go into the supermarket with a pressing need for broccoli, they still don’t have to provide it? Indeed, the Solicitor General said as much: > [@](#): > > No, that’s quite different. That’s quite different. The food market, while it shares that trait that everybody’s in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don’t know before you go in what you need, and it is not a market in which, if you go in and – and seek to obtain a product or service, **you will get it even if you can’t pay for it** (bolding mine) ---
**Author:** ![jackdavinci](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackdavinci/32/3259_2.png) [@jackdavinci](https://boards.straightdope.com/u/jackdavinci)\ **Post date:** [March 28, 2012, 6:30pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/70 "2012-03-28T18:30:03Z")
> [@erislover](#): > > to the board: am I the only one who doesn’t have a transcript or audio recording of the whole thing? I don’t. I Iistened to a bunch of it on a news channel. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 28, 2012, 6:31pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/71 "2012-03-28T18:31:21Z")
> [@tim314](#): > > Isn’t the obvious difference that even if you go into the supermarket with a pressing need for broccoli, they still don’t have to provide it? Which is a situation created by legislature. I guess the idea—I think Scalia brought it up—would be that it is Congress’s fault that such healthcare must be provided and that’s what’s causing the problem. Would he throw that out now, too? ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [March 28, 2012, 6:35pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/72 "2012-03-28T18:35:20Z")
> [@Left\_Hand\_of\_Dorkness](#): > > I just saw an interesting question elsewhere. If the federal government cannot force someone to buy something against their will, can it force someone to sell something against their will? Yes. _Kelo v New London, Conn._ Homeowners were forced to sell their homes to a private entity that could generate more tax revenue. The key point was not the tax benefit from the sale itself but from the expected outcome so if selling a product enables that product to be used for a public purpose then yes they can require you to sell something. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 28, 2012, 6:36pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/73 "2012-03-28T18:36:55Z")
> [@erislover](#): > > Which is a situation created by legislature. I guess the idea—I think Scalia brought it up—would be that it is Congress’s fault that such healthcare must be provided and that’s what’s causing the problem. Would he throw that out now, too? That could be a whole other thread, but is it legitimate for Congress to pass a law that creates a problem which then MUST be solved by a comprehensive scheme under the interstate commerce clause to fix a problem that they created? In other words, the government’s argument is that health care is a special market because all who enter MUST be provided for. But they made it that way. So, would the broccoli thing be legit if Congress passed a law that said no supermarket could turn away a hungry person because he didn’t have money? ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [March 28, 2012, 6:37pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/74 "2012-03-28T18:37:56Z")
> [@Saint\_Cad](#): > > Yes. > > _Kelo v New London, Conn._ > Homeowners were forced to sell their homes to a private entity that could generate more tax revenue. The key point was not the tax benefit from the sale itself but from the expected outcome so if selling a product enables that product to be used for a public purpose then yes they can require you to sell something. If I understand, though, this case was decided based on local (or possibly state) law, not on federal law; as such, the commerce clause didn’t really enter into it. Is that right? In other words, can the FEDERAL government force someone to sell something against their will as part of their authority under the commerce clause? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 28, 2012, 6:39pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/75 "2012-03-28T18:39:01Z")
> [@Saint\_Cad](#): > > Yes. > > _Kelo v New London, Conn._ > Homeowners were forced to sell their homes to a private entity that could generate more tax revenue. The key point was not the tax benefit from the sale itself but from the expected outcome so if selling a product enables that product to be used for a public purpose then yes they can require you to sell something. You need to be a lawyer for the Justice Department! This comes under the takings power. Congress takes your money for the public good, gives it to an insurance company, and you receive just compensation in the form of health insurance. It’s absurd, but no more so than the ICC argument. ---
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [March 28, 2012, 6:43pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/76 "2012-03-28T18:43:44Z")
> [@erislover](#): > > Aside to the board: am I the only one who doesn’t have a transcript or audio recording of the whole thing? Transcript and audio: [Monday](http://www.npr.org/2012/03/26/149401430/transcript-supreme-court-the-health-care-overhaul-law-and-the-anti-injunction-ac) [Tuesday](http://www.npr.org/2012/03/27/149465820/transcript-supreme-court-the-health-care-law-and-the-individual-mandate) [Wednesday](http://www.npr.org/2012/03/28/149541033/transcript-audio-supreme-court-the-health-care-law-and-severability) ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [March 28, 2012, 6:45pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/77 "2012-03-28T18:45:37Z")
> [@jtgain](#): > > In other words, the government’s argument is that health care is a special market because all who enter MUST be provided for. But they made it that way. > > So, would the broccoli thing be legit if Congress passed a law that said no supermarket could turn away a hungry person because he didn’t have money? The audio snippits from a scotusblog summary I listened to last night seemed to raise this as the main concern. Congress got itself into this mess and now wants broader powers to resolve it. Seen in this light, I would not fault any justice who wanted to say “Tough beans.” However, I did like the question posed to one of the later forces arguing for unconstitutionality. The question was: what if there were some epidemic, could we force 40 million people (“40 million uninsured”) to get an innoculation? The individual answered “No, we couldn’t.” I am not sure that sat quite as well with the justice asking the question. In a way, it was a “what is the limit” question as well, only asked of the other side. I think this issue is really interesting, I can’t wait to hear the summary from today’s arguments about separability. ETA: thanks **tim314**! ---
**Author:** ![drachillix](https://avatars.discourse-cdn.com/v4/letter/d/48db29/32.png) [@drachillix](https://boards.straightdope.com/u/drachillix)\ **Post date:** [March 28, 2012, 6:57pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/78 "2012-03-28T18:57:40Z")
> [@alphaboi867](#): > > But why did Congress set the individual mandate up like this in the first place? 😕 Why not just impose a “Medicare tax” on everyone then waive that tax for everyone who purchased private health insurance? That raises alot fewer constitutional questions than this set up. I know Medicare is an ugly word but this post above is exactly what I have always imagined. Medicare tax goes up, age range drops to zero, private insurance goes away, or drops into situations like existing medicare suplemental insurance. From one perspective you are being “forced to buy insurance” I would see it more as inheriting a right to medical care without having to jump through any hoops. I as a business owner would love nothing more than for employee medical coverage would just be a shift in an existing payroll deduction, no extra BS and dealing with sales pitches from half a dozen companies, the tax applies, everyone is covered. How about if this same situation reduced workmens comp insurance liabilities since everyone has coverage anyway leaving only a small portion of the potential bill for an injured employee. I would think the world of small business would be screaming for this to happen just from the reduction in paperwork nightmares and dealing with more vendors. ---
**Author:** ![drachillix](https://avatars.discourse-cdn.com/v4/letter/d/48db29/32.png) [@drachillix](https://boards.straightdope.com/u/drachillix)\ **Post date:** [March 28, 2012, 7:10pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/79 "2012-03-28T19:10:54Z")
> [@jtgain](#): > > No, it doesn’t. It requires that I purchase insurance when I haven’t entered the healthcare market. That is a huge distinction. > > I might drop dead from a heart attack 10 minutes from now and never use a dime of health care services. If you did so in a public place you would use tens of thousands of dollars in medical care. Someone will call 911, since you look like an otherwise healthy person way to young to die from a major heart attack, they are going to pull out all the stops to try and save you, they are going to work you until you get to the hospital and the hospital is going to try and get you going as well via techniques not available to paramedics in the feild. If you are breathing, you are in the healthcare market. Bad stuff happens to people all the time. Accidents, illnesses, genetic predisposition to a variety of conditions, walk into the waiting room of any hospital ER, at least half of those people have no preexisting conditions, they have illnesses that have gotten bad, fell and broke an arm, cut or burned themselves cooking, childbirth, fights, anaphalaxis from accidental exposure. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [March 28, 2012, 7:33pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/80 "2012-03-28T19:33:00Z")
> [@erislover](#): > > You brought up the point about “benefits”, **yorick** , and I addressed it, given Ginsburg’s comments. I guess you see why that’s related to your comment. My comment was not intended to be snarky…in case you got that impression. My point is that you can’t apply an excise tax to something that you _don’t_ purchase. Of course I fully admit I don’t know much about all of this and could very well be wrong. [Previous page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=3) [Next page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=5)