I think it was Scalia that said this is not about the healthcare market…it is about the health insurance market.
On the technicality it seems to me, also, that it is unconstitutional although I wish that weren’t so. On the other hand, the federal government’s authority to take you away and confiscate your property for growing some particular plants in your garden has been upheld. In the 2005 case Raich v. Gonzalez the government’s right to prohibit or regulate private cultivation of marijuana, based on the interstate commerce clause. I don’t agree with the federal policy regarding MJ, but do appreciate the fact that it arises ultimately from what has been perceived to be a dire social and public health problem. That being the case I can see why citing it was going to be part of the government’s case. Lack of access to healthcare is a clear social ill.
We keep hearing the argument that everyone eventually does get treated, but there’s a huge price for that. ER visits are expensive. The patient gets treated to the point of stabilization, which means that underlying root cause health issues are not being treated. The hospital spends money trying to collect money from the patient who siimply does not have it, and the patient incurs a bad debt that follows him/her around indefinitely.
Considering the vast majority of Americans first see the light of day in hospitals, I think it may arguably be the case that we enter the healthcare market by being born, in a way that cannot be said for, let’s say, the market in automobiles or cell phones.
I still want to know how the Emergency Medical Treatment and Active Labor Act is constitutional if the individual mandate isn’t.
To continue the “broccoli” analogy it would seem equivalent to a law that requires all grocers to provide broccoli at no cost if a person is starving.
I still kinda think Kennedy is going to uphold the mandate by carving out a limiting principal - something about how unique the health-care market is. But I don’t think I’d put the odds much above 55%.
For all we know, we’re both wrong. The government doesn’t want to argue it is a tax, but is not willing to come out and claim it is necessarily not a tax, because in either case I think the position is that tax law is insufficient to justify this and no one is in a hurry to care deeply about the issue. Supposing the federal government was involved in traffic citations, would “failure to yield” fines be a tax? I mean—this is revenue. We can call it a tax or a fine. It seems to not be the real question. The real question is whether they have this power in the first place to stop you from not-yielding. The mechanism is important, I don’t disagree, but is it is the point of the dispute in this case? I mean, suppose the tax argument is strong, is the “fix” to just jail people instead?
I don’t want to derail the thread but there is a part of me that thinks that the only chance we have to see single payer is if this law is overturned.
The federal goverment can fine people for actions. The point here is that the individual mandate requires the purchase of a product. If you don’t buy the product there is a fine. That is the force the government is using to compel the purchase.
The government can also tax. They could have made the “penalty” a tax somehow…my guess is if it was no different but simply referred to as a tax there would still be a constitutional dispute. I don’t think it is in question that the government could tax us all and provide us health coverage of some sort. It appears they just went about it the wrong way because of the political implications.
If it’s overturned, my secret fantasy will be that that was Obama’s plan all along moo ha ha ha ha.
For those who are arguing that it would still be unconstitutional if it were worded as a tax: how can the government give me a tax deduction if I buy a solar heating unit? Isn’t that effectively a tax on those who don’t buy a solar heating unit? Effectively making buying a solar heating unit mandatory unless you want to pay a penalty.
I think this is a question that could be asked in a different way: can the government use tax dollars to subsidize corn? Then, if you’re not buying corn, you effectively face a fine. It’s a de facto fine, not de jure, sure, but is this the kind of wrangling we consider to be suitable to a nation of laws, not men?—Who has the coolest words to describe their action? I mean, does it really make sense to dance around like this and say: tax everyone, but then give people who purchase health care a rebate on the tax? The economic effect is totally identical, except that one way is more expensive to everyone.
I’m not sure but it seems to me that in your hypothetical you choose to opt out of the benefit…much like opting out of medicare. In the ACA there is absolutely no benefit to the individual from the fine. Hence it is not considered a tax but, rather, a penalty. I would think that, for your hypothetical, the comparison would be paying a fine at the cash register if you don’t have corn in your basket…effectively forcing you to buy corn.
Call it a tax, call it a “penalty”—is this the difference that is really going to decide constitutionality? If that’s so, then it is already a mockery and we need to throw it out.
It’s already there every time you don’t buy corn, because you’ve paid for the subsidy but not reaped the benefits. Take coupons: are they discounts given to people that turn them in or has the store penalized through higher prices those that don’t turn them in? This is a distinction without a difference.
Look at the Fourth Amendment and the principle of exclusion. Without it, what is the difference between a legal search and an illegal search? —What we charge the officer? Whether we make officers “pay” up front by going through the effort to get a warrant or “pay” after the fact with civil fines for unauthorized entry, the end result is ostensibly the same: evidence collected and trials ensue. But with it, things are genuinely different. With the exclusionary principle, there is no evidence; illegal searches simply fail to exist in any meaningful sense. The exclusionary principle really does recognize the limit of the fourth amendment.
In this case, if we taxed everyone, then rebated those who proved they had coverage, the effect is exactly the same is if we didn’t tax everyone but just “fined/taxed/economically discouraged” those who don’t have coverage. If one is legal, the other should be, because there’s really no underlying difference. Calling it a fine, penalty, or tax isn’t even semantics. There’s just no underlying difference at all. So in my view, if this law is unconstitutional, then they couldn’t just turn around and tax everyone to provide health care.
Let’s make the numbers easy to illustrate. Assume a $50k salary with a flat 10% tax with a solar heating unit costing $5k.
With no solar heating unit:
Tax Bill: $5k
Money in your pocket $45k
With solar heating unit:
Tax Bill: $4500
Money in your Pocket: $40,500
If you don’t like solar heat and you think it is a worthless waste of money, then you can choose the first option and still have more money in your pocket. It’s not a penalty because by default, the government was entitled to that money anyways under the ordinary income tax law. It just decided to nudge you into solar power by making the effective price $4500 instead of $5k.
With health care, you pay regular price and have a penalty tacked on if you don’t like it. Now, I understand that the tax code could be manipulated to set up health insurance in the same way, but I think that is where the intent of Congress comes into play and if a judge determines that this is what Congress is doing, it should be struck down.
If it raised the default income tax by X% and gave a deduction of X% for having health insurance, then that should be seen as the charade that it is. While I’m not a fan of promoting social policy through taxes, the government is making a statement in tax deductions that it would rather a citizen spend the money on a noble purpose than for the government to collect it in taxes.
When it uses a back-handed manner to force policy changes, it should be forbidden. I realize that the courts don’t side with me on this; it’s just my position.
Missed the edit window:
It seems like silly semantics, and it is, but it would serve a wonderful purpose IMO. When Congress proposes these laws, they would have to call a tax a tax instead of using “penalties” and “contributions.” They would have to call a government mandate in health care a government mandate and not talk of “beneficiaries.”
Those words are just on this side of absolute lies.
I would never have imagined that you would like constitutionality to be decided by verbal wrangling, jtgain. I hope you reconsider that position.
We need to be clear here. There are two different financial obligations. The first is to buy insurance. The second is to pay a fine if you don’t buy the insurance.
I don’t think there is anyone who can really argue that there’s an issue with the fine, whether it’s called a fine, a tax, a penalty.
The issue is with forcing the purchase of insurance. Likening that to a tax - well, can the federal government directly tax citizens? Could income tax be replaced by an annual citizen fee?
I don’t think anyone is likening the purchase of insurance to a tax. I think they’re basically saying that you either buy insurance or you pay a tax–just like you either have kids or you pay a tax. With kids, the government recognizes the financial contribution you’re making to the nation’s future through childrearing by offering you a tax credit, and you don’t get that credit if you choose not to have kids.
With this law, the government recognizes the financial contribution you’re making to the nation’s health-care system through paying insurance by not making you pay this new tax (or fine), and you don’t get that exemption if you choose not to have insurance.
No, the issue is that some people are casting the government’s action in this light. But this action is equivalent to a host of other actions which are not in dispute at all (in my opinion).
I don’t believe they can, no. It would have to be an income tax or sales tax or something of that sort. But so what? Put a negative sales tax on buying health insurance while raising everyone’s tax rate. These are all totally equivalent actions with respect to consumer economic decisions. Casting it in one light but not another is really irrelevant: if the government can do it, it can do it; and if it cannot, it cannot. Whether you call it a tax or not is really lowbrow philosophy that is usually criticized by such elements of society as, um, “mere semantics.”
Eminent domain
5th Amendment
US Constitution
Yes but not under ICC (as of today. it could change)
If there is a distinction with taxes that is not merely semantical, then there is a meaningful distinction here too. It’s not that the government either can or cannot. It’s that it can only do it in certain ways.
I guess the main distinction is, assuming poverty level folks are reimbursed, do they still have to lay out the initial premium? Even if they don’t ultimately end up having to pay, that initial layout would still be devastating. That seems like a very large distinction to me.
Well, no. The 5th amendment prevents the seizure of property without due process–it doesn’t authorize anything. This seizure therefore wasn’t authorized by the fifth amendment; it’s just that the fifth amendment didn’t prevent it.