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More essential reading on the mandate as "Stamp Tax"

Shorter: If the Feds can force you to buy health insurance, what can't they force you to buy?

* * *

RL calls, so I can't do this post justice. It's the best I've read on the subject, by far, and it provides a road map for the coming year. And surprise! It's all about the rents! I'll return to it in detail, I hope, since there are more parts to come, but for now here's what I see as the nut grafs:

If this Stamp mandate stands, if it’s illegitimately ruled “constitutional” (as two corrupt judges already have, while one has ruled the opposite), there will be literally no limit on the government’s being able to arbitrarily define the legitimate limits of a market and then require the purchase of a private product.
 
What we see in the two pro-mandate rulings is the doctrine of a pre-constitutional market. Congress has arbitrarily set up this pseudo-market based on private health insurance. It first gave the insurance rackets an antitrust exemption and rigged the market in other ways. Then, when this “market” failed badly enough that a critical mass of people were rationally (and with full moral justification) choosing not to participate in this corrupt market, Obama and the Democrats passed this Republican-designed bailout bill in order to force participation. ....
It could be argued that a health care market does have to exist, and we are all necessarily participants in it. But the health insurance “market” doesn’t have to exist at all. It’s a completely gratuitous creation of the government, and in this case, contrary to the judge’s explicit lie, it is specifically a “market created by Congress”.

Remember how single payer opponents consistently conflated health insurance and health care? Here is the same idea, grotesquely inflated to a Constitutional scale.

That’s a bizarre jurisprudence: The government can arbitrarily create an irrational, inequitable market and declare by fiat that everyone has to participate, and all of that is beyond the Constitution’s purview.
Instead, the Constitution is simply instrumental toward enforcing the arbitrary markets created by government, and from that perspective a mandate to participate is valid. This is the doctrine which will be enshrined if the mandate stands: The pre-constitutional command economy fiat power of the legislative, and perhaps executive, branch. Looking at the judges’ lies which depict this artificial command market as a law of nature, we see how the real goal is enshrinement of rule by corporate protection rackets. This is another big step in the de facto privatization of the IRS, its transformation into corporate thug and bagman. The FDA is preparing the same mandates for food.

If this mandate is allowed, the Constitution simply becomes nothing but the flunkey of legislative and executive fiat with regard to any command economy measure. They’ll be able to mandate that all purchases have to be done with a bank-issued credit card, for example. Detractors have offered many other examples. According to the logic, the arbitrary fiat is beyond constitutional purview and is automatically, autocratically postulated as legitimate, while the tyrannical application would then follow as legit according to the commerce clause.

Yep. I like this sort of grand unified theory.

From this larger perspective, we can also see the complete and utter uselessness of career "progressive" "thinking" on this topic; all they've done, in most cases, I would think, unwittingly, is obfuscate the key issues on the mandate (and boy, do I remember the ridicule when I first raised it, since the only other people raising it were on the right, and they, of course, wear the wrong jerseys).

NOTE Note that the key issue is.... "consent." Hmmm.....

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Submitted by wlarip on

do you justify accepting any governmental mandate?

Why aren't you complaining about auto insurance, driver's licenses or auto tags?

Auto insurance, at the very least, could be viewed as a Stamp Act for insurance companies.

What's the difference?

Submitted by lambert on

The government didn't create a false market in automobiles, and then force me to buy a car (and automible insurance, fees, etc are all ancillary to that). If I don't participate in the automobile market, I have alternatives in the form of public transportion, biking, walking, carpooling, choice of abode, and so forth.

However, the government did create a false market in health insurance (which is not care), and now is trying to force me to participate in that. And in that case, my alternatives are losing my home, not getting well, dying, and so forth.

Aeryl's picture
Submitted by Aeryl on

if you don't want to pay mandated auto insurance, don't drive.

On the flip side, health care is a right, and you don't have the privilege of not getting sick.

Registration tags and vehicle property taxes go to pay for things called roads, which making driving possible, not back to the dealership which sold me the car in the first place, as profit. I would not be averse to paying a tax, that went to pay things like doctors and nurses and hospitals, instead of needlessly enriching a pointless middle man. I am against being forced to buy a defective product. If the HCR had included a Medicare Opt-In for all citizens, I would not be opposed to a mandate.

beowulf's picture
Submitted by beowulf on

State govts have general police power, they can pass laws intended to protect public health, safety and welfare (that's why Mass. had no problems defending its right to impose an insurance mandate). The Federal govt is limited to its "enumerated powers", since it has the power to spend on govt programs and the power to levy taxes on income "from whatever source derived" and the power to spend, Medicare and Medicare taxes are clearly constitutional. Heck if Congress wanted to keep the gravy train flowing to private insurers, they could have funded it with the Medicare tax but required enrollees to pick a private Medicare Advantage insurer.

What's more, no one has a right to a driver's license (just ask Stevie Wonder. The state will provide non-driver ID cards to any citizen who can't or chooses not to drive) nor to does anyone have a to drive a vehicle on public roadways. By choosing to applying for a license and to drive on public roadways,

Even absent police power argument, a state could impose insurance and tag requirements as conditions of those voluntary activities. A federal health insurance mandate is unique in that its not grounded in state police powers and its regulating someone who chooses not to engage in interstate commerce. The govt is arguing its a tax, but the court said that since its clearly a penalty, it must be based on a violation of an enumerated and since it ain't interstate commerce, the penalty was unconstitutional.

Florida's counsel David Rifkin hit the nail on the head (I'd point out that a Medicare card is really a healthcare voucher that directly subsidizes medical services instead of medical insurance)--
This is an effort to get the middle class to put in more money to cover the poor. The only way the government could have done it legitimately, redistribute the wealth, if you will in our constitutional system, is impose a tax, collect it and then give people subsidies. What you cannot do is have a mandate that compels people to do that. That is both constitutional and — really, politically, think about it, this is the way you do it without paying the political price for it. Of course, the people that did it paid some price...
http://www.foxnews.com/story/0,2933,6026...

Submitted by wlarip on

sometimes discriminate without intending to do so.

Sometimes ineptness is just ineptness. Besides, tinfoil hats preempt good suntans.
Each of us is sensitive to it in a different way for our own reasons, none of which need discussing.

Matthew 21:21

They are too disorganized to be a good conspiracy. The seeds of their undoing have already been sewn. What's funny is that they are the sewers.

Submitted by lambert on

... but I'm not sure what your comment has to do with the post. Perhaps you can expand?

Submitted by wlarip on

you're certainly not dense(except about cats).

I don't believe that the mandate to buy insurance was intended as a Stamp Tax.
I think its intention was to make it politically palatable as 'deficit neutral'.
I don't think anyone considered its constitutionality or its morality.
It's sausage.

But to perpetuate its presence as evidence of grand unified theory is a reach.

Empires always collapse through lack of moral authority.

For a time, I was forced to work for a big box retailer after my job was outsourced. I found poverty to be the most liberating and powerful experience of my life.

Debate is method. Truth is substance. No one knows what the truth is but no one doubts it when they see it.

We may never have been 'the shining city on the hill'. But that ideal is not forgotten more outside this country than in.

We can't ignore that dichotomy and in the last analysis, it will change everything.

Valhalla's picture
Submitted by Valhalla on

Bad law <> unconstitutional law. As far as the purpose of the law, and the part it plays in cramming down The Rest of Us, right on. But I'm far from convinced the law is unconstitutional, and even if it is, it's not clearly unconstitutional the way some of the unitary exec stuff from Bush and Obama is.

Many of the analyses from the right I tend to reject, not because they're coming from the right, but because the proponents are the same fun folks who claim income taxes are unconstitutional because the 16th amendment was never properly ratified, and other, shall we say, extremely creative interpretations of The Constitution. That doesn't mean they're wrong on this, but it does limit how much time I'm willing to give their theories.

p.s. Lambert, I tried to post a similar comment a minute ago but it didn't go through. Feel free to delete it if it turns up.

Submitted by lambert on

... that shows where the doctrine that it's constitutional to force citizens to participate in a marketplace cannot be applied?

If there is no such bright line, you've got no constitution. So where's the line?

No, he's not arguing the mandate is bad, though it is bad. He's arguing that the mandate is not constitutional. One may think that's a bad argument, but it's taking place on the plane of jurisprudence, not morality. And I looked at your other post, thanks, but I don't see the argument that this post is making addressed.

UPDATE I'm not strong on the legal blogs, so I'll have to quote "Legal Memo" form Izvestia:

The Justice Department, which represents the Obama administration, argues that the insurance requirement is constitutional under the commerce clause and allowed under the necessary-and-proper clause as a rational means to an appropriate end. It points to a series of Supreme Court precedents that interpret those provisions as allowing the regulation of “activities that substantially affect interstate commerce.”

The act of not obtaining health insurance, the federal government’s lawyers contend, is effectively a decision to pay later rather than up front in a market that consumers cannot avoid. * Such decisions, they say, have a substantial impact on the market because many of the uninsured cannot afford their care and shift costs to governments, hospitals and the privately insured.

But of course, "a market that consumers cannot avoid" is, quite simply, false, for two reasons: (1) As the post points out, the market as it is constituted was set up by the government granting anti-trust exemptions to the health insurance companies, and rigging it in other ways; and (2) "cannot avoid" is only true given that non-market-based solutions, like single payer, are taken off the table. The gaming possibilities for "free market" ideologues (or, as comes to the same thing, rent enablers) are endless, aren't they?

There's no conflation here whatever, and there is a constitutional, or at least a jurisprudential, issue raised.

Oh, and you say that "Many of the analyses from the right I tend to reject." Fine, but assuming that's not just a general declaration, with no particular application to this thread, why do you think this post comes from "the right"?

NOTE * The poster, in my view correctly, translates that too:

The government can arbitrarily create an irrational, inequitable market and declare by fiat that everyone has to participate, and all of that is beyond the Constitution’s purview.

Do you disagree? If so, why? Where are the bright lines that make this not true?

Valhalla's picture
Submitted by Valhalla on

yes, he is claiming the law is unconstitutional. But he is not making constitutional argumnts, he is making policy arguments.

There is no bright line here (in fact, I'd argue that the extent to which there is a line at all favors constitutionality, not un~). I think I don't understand your bright line question, because most of constitutional law (the part we read about in the papers anyway) is all about the cases where there is no bright line until the SCt says there is.

The key contention to constitutionality is Congress' power to regulate interstate commerce under the Commerce Clause. (there's also a taxing power argument but CC is where the main action is). The CC is an enumerated Congressional power in the Constitution (is that the bright line you were asking about?), and there's little controversy whether Congress can in fact regulate interstate commerce.

The main dispute is whether what the hcr law mandates is "economic activity" that falls under the definition of interstate commerce. Over the years very few limits have been put on the CC, esp. the definition of "economic activity." The argument for unconstitutionality is that Congress is seeking to regulate decisions not to participate in a market, which would not be "economic activity." But HCR pretty clearly presents a novel question of law in this respect. Both sides can cite precedent, but existing cases are not directly on point, not close enough to really dictate a reasonably probable outcome. It is not clear that the hcr mandate regulates not-economic-activity, and the conclusion the judge in the VA case drew isn't directly traceable to any particular constitutional doctrine.

Interestingly enough, the author only cites two S Ct decisions, and one of them goes against the author's argument (Kelo, summary of holding here). The other (Wickard) he uses to project the pro-con arguments intent (also a political analysis), but omits the fact that the pro arguments rely on other cases as well. (I'm poking through some of these now). In other words, his arguments aren't grounded in constitutional law, but in how stupid the law is.

The slippery slope arguments are excellent arguments why we shouldn't have laws like this, but not for why hcr is unconstitutional.

RL calls, though I hope to read through some of the cases myself. In the meantime, UPenn law hosted a debate which seems to sum up the arguments on either side. Some of the arguments on both sides are a stretch or not really relevant, but this is the article which covers the most ground, of what I've seen.

Submitted by lambert on

I'll cast the argument in the form of a reductio ad absurdum:

1. If Congress can set up any market it likes, and

2. Everybody can be forced to join that market, under the Commerce clause, then

3. The only limits to Congressional powers are the limits of what can placed on the market.

4. Which is absurd.

Therefore, the mandate cannot be constitutional.

That's not a policy argument, nor was it ever.

Once again:

That’s a bizarre jurisprudence: The government can arbitrarily create an irrational, inequitable market and declare by fiat that everyone has to participate.

Simple question: As a matter of law, do you believe that's true?

Suppose the market made were in widgets. The jurisprudence would be equally poor.
And if the consequences of the mandate are not absurd -- putting on my policy hat now -- there are a number of future possibilities we can all cross off our lists.

NOTE I'm happy to have the research, but since I don't regard the composition, or the decisions, of the Supreme Court as legitimate after Bush v. Gore, I care a lot more about what the law ought to be, were we to live in state governed by the rule of law, instead of in a banana republic. The Penn stuff is useful, for sure, but in more or less the same way that a bake-off between the economics departments of Princeton and Yale would be. Bright people, interesting ideas, but as authoritative as.... Well, anything else. Sorry!

Valhalla's picture
Submitted by Valhalla on

if you throw constitutional cases out the window. And the Constitution, for that matter.

(The vast majority of CC cases predate Bush, btw.)

You're still not making a constitutional argument, as "absurd" is not constitutional doctrine. For hcr to be unconstitutional, it has to violate a precept of the Constitution, speaking of reductio ad absurdam.

I agree that the slippery slope argument leads us to incredibly bad results and (as is rare for a slippery slope argument) all-too-likely future absurd legislation.

Simple answers to simple questions:

Does the individual mandate lead to an absurd result? Yes.
Is the individual mandate unconstitional? Maybe.

What I believe, as a simple answer, is that hcr may be constitutional. And I can back that up with constitutional law. (which is why I referred to the UPenn debate, for the cases and the constitutional arguments, which sorry, are rather on point if your claim is hcr is unconstitutional). You can't argue that a law is unconstitutional based on what you'd like the Constitution to mean but doesn't.

That is not what I prefer -- I prefer that we get rid of the individual mandate. I prefer that Congress not have the power to mandate purchases from private markets. However, what I prefer is sadly not the same as unconstitutionality.

Fwiw, even if the SCt declares hcr unconstitutional (will you think they're legitimate then?), it's not necessarily a great victory for SP. It wouldn't take much fiddling with hcr mandate to get around it, assuming the Court accepts the VA judge's reasoning, and the only reason we wouldn't see Congressional efforts to amend the law is because the Republicans are likely to control the House for quite a while. They have done exceptionally well as casting Obamacare as socialist, and their success affects attitudes toward SP as well (and yes, I know hcr has nothing to do with SP). But my point is that this is all a victory in the SCt does is stop this one iteration of corporate welfare. There will be others, possibly better insulated against declarations of unconstitutionality, so the really important forum IS in public policy, not the courts. That's where the important action is.

And, while I haven't given much thought to this yet, I'm extremely wary of the argument that not-buying something isn't economic activity (this is the crux of the unconstitutionality argument) because I'm not sure it wouldn't cause problems for other legislation. Which is why, independent of any sort of Dem-Obama tribalism, I'm a little wary of jumping on the bandwagon of arguments coming from Republicans and the anti-federalism crowd.

Submitted by lambert on

... but reductio ad absurdum surely empowers arguments of that class.* (It's like the idea that once you introduce a contradictory premises into a logical system, you can literally prove whatever you want.) It's a wedge, which is why I call the argument "Constitutional." Maybe that's the wrong word, and "foundational" would be better. In this case, the wedge is so powerful that a good lawyer could "name their poison." I'm not equipped to make doctrinal arguments about tactical details, not being a lawyer. But that's rather like saying that I can't see the waters of Katrina roll into NOLA and I can't use the word "flood" because I don't have a degree in hydrology. Here's another example (in comments):

It seems that under the under the author's arguments, the Supreme Court could also argue that a boycott (or strike amongst workers) against a company could also be prohibited under the Constitution, if Congress were to pass a law prohibiting all boycotts or strikes.

Consider if consumers by the millions across the country decided to boycott Wal-Mart, the largest retailer in this country. This would certainly affect interstate commerce, considering the largest inter-state retailer and all it's suppliers (and a huge provider of employment) would be losing business drastically. Would Congress then have the power to stop this boycott, since the choice not to buy from Wal-Mart was negatively affecting interstate commerce, and mandate that every American spend at least $100 monthly at Wal-Mart to keep the largest retailer in the country alive? According to the author, Congress could do this. Seems like Congress could create a whole new system of bail-outs, where Americans are simply forced to buy products from business to rescue said businesses.

In Citizens United, the court decided that money is speech, and therefore free, under the First Amendment. Under the mandate, money is not free, since one must spend it in a certain way, and, money not being free, cannot be speech. So either money is not equal to money, or speech is not equal to speech... Really, once the wedge of absurdity is in place, the means by which it's driven home is up to the creativity of the experts...

NOTE * Here's an example of the technique being used in case law:

"´If a right to a hearing is a liberty interest, and if due process accords the right to a hearing, then one has interpreted the Fourteenth Amendment to mean that the state may not deprive a person of a hearing without providing him with a hearing. Reductio ad absurdum .'" Id. (quoting Shango v. Jurich , 681 F.2d 1091, 1101 (7th Cir. 1982)).

Submitted by hipparchia on

thank you for this:

But HCR pretty clearly presents a novel question of law in this respect. Both sides can cite precedent, but existing cases are not directly on point, not close enough to really dictate a reasonably probable outcome.

i've been reading some of the blogs that are arguing that it IS constitutional, and wondering why they were expending so much effort on analyzing/defending cases that seemed so unrelated to the issue at hand.

Submitted by jawbone on

any employee must purchase? Workmen's compensation? Disability insurance? Same idea. Repubs love this bcz it means employers would not need any longer to be on the hook to pay for such coverage. All on the peons...er, employees.

And individual entrepreneurs would also have to purchase said insurances. Big Money People? They can expense it in some way or it will be a major perk for them. Since they are VIPs and too important to lose to competitors.

Worker bees? Ya gotta be kidding! Of course the peons, er...employees...bear their own insurance costs. It will be their responsibility, ya know? Part of the cost of being able to work*. Of having "skin in the game."

Oh, forgot about nursing home or home care insurance. Life insurance for anyone with dependents -- and burial insurance, for when peons hurry up and die.

Just for starters.... Dental? Vision? Legal representation insurance? Hey, it won't be just for Big Health Insurance Players (BHIP) in the future!

*Which leaves the DIS- and UN-employed. What to do about gigging them? Maybe that's where the poll taxes come in....

Yeah, that's the ticket.

beowulf's picture
Submitted by beowulf on

"The act of not obtaining health insurance, the federal government’s lawyers contend, is effectively a decision to pay later rather than up front in a market that consumers cannot avoid. *

Well at 65 (or earlier for a permanent disability rating), everyone who's paid FICA taxes is automatically covered by Medicare Part A (and auto-enrolled in Medicare Part B). In the meantime if they enlist in the US Military, they are covered by Tricare and once they leave active service, they can receive healthcare at a VA hospital or clinic. Its like the federal government's lawyers forgot about those.