Matt Yglesias

I don’t feel too bad for the Left here, since they easily could’ve included a severability clause in the bill, as is standard, but sloppily left it out. To me, that’s symbolic of their rushing this health care bill through with a bunch of unworkable provisions (1099 requirement, etc.)

Rushing? Were you in a Mongolian yurt for the past 2 years?

“Ultimately, big constitutional controversies just come down to what the median justice prefers to do.”

I’m sorry, but that is just grotesquely cynical. And I wholeheartedly disagree.

Yes, a judge’s personal preference enters into the decision-making, but there is also more than a bit of “math” involved.

Now they’re just making stuff up.

so you think the Democrats slowly and carefully decided not to include a non-severability clause? You must think a lot worse of them than I do.

Let’s not confuse incompetence with haste.

Declaring the individual mandate unconstitutional will affect how lower courts, and future Supreme Courts, interpret the Commerce Clause. I’ve heard arguments that it will have a modest affect, or that it will have a huge affect, but it’s hard to imagine that it will have no affect. Worst-case scenario (for liberals) is that it will rework 80 years of casework and put us in a pre-New Deal constitutional worldview. In that way, repealing health care may be more of a means than an end for conservative judges.

Political people have this way of assuming that judges make decisions with the same type of political criteria that other politicians do. This isn’t right. At the very least, judges have to think about how one decision will affect OTHER important causes for their political side, whereas most politicians have no problem turning around their principles on a dime.

You have to understand how the politics and the legal theory work together.

The sound and proper procedure for major legislation is to write a thousand-page bill and then pass it around the night before a do-or-die vote (and be a Republican), not to rush things by spending mot of a year debating, re-debating, voting, re-voting, amending, and re-amending a bill, all the while allowing various factions to tour the country holding town hall after town hall until no man, woman, or child on the face of the planet ever wants to hear the words “health care reform” again (and be a Democrat).

It’s obvious, really.

i think the last sentence should be restated: big constitutional controversies just come down to what the median justice BELIEVES IS POPULAR. Sure, sometimes the median justice just goes with his/her gut, but sometimes, they put their finger to the wind and figure out which its blowing. Its entirely possible that AK may think its unconstitutional, but recognize that being the guy that makes it official is not something he has the stomach for given that he’ll be blamed for all the nasty things that will happen once ACA is gone.

If congress were to raise everyone’s taxes by $700 and then offer a $700 deduction to everyone that has health insurance, it would be totally constitutional, right? Congress does that all the time. They currently punish you for failing to comply with the “mandate” to have a mortgage.

So why not do it that way in the first place? Is it just impossible to pass a “tax increase”, even if most people won’t have to pay it?

I’m going to take the bet that Justice Kennedy votes with the majority to dump the individual mandate, so long as they do what this judge wouldnt, which is sever the rest of the Affordable Care Act from it.

The government can make all the Rube Goldberg arguments about how me sitting on my couch doing nothing is a form of activity, I dont think thats going to fly.

Stick a fork in the Affordable health care act, it’s done.

I never thought it was a great piece of legislation, but it was better than nothing, which is what we’ll end up with

The government has 100% constitutional support and precedent for taxing the citizens and spending the money on whatever it wants. If they chose to raise FICA and delete the words “over 65″ from the Medicare statute, these challenges wouldnt have a leg to stand on.

I’m happy for you that the impact of this bill on millions of people around the country means nothing to you and the only people whose reaction to its fate you care about deserve this result according to your calculus. Being a sociopath would make life easier, I suppose.

I’m still not clear on how I can, effectively, get a tax penalty for not buying a hybrid car, but a tax penalty for not buying health insurance is somehow unconstitutional.

Nonsense. Lots of foolish liberals triumphantly declared that that a challenge to the individual mandate would fail 8-1 in the supreme court. And they would know. Because they said it a lot, I suppose.

I’m pretty sure that’s what the law does. (That’s why it’s up to the IRS to enforce the individual mandate.)

From what I understand, the objections come down to 1) You didn’t say it was a tax increase when you passed it, and 2) You’re obviously just using the tax increase to get around the constitutional issue.

For some reason, the argument has moved away from the tax increase issue to whether the government has the authority to do this through the commerce clause.

Perhaps defenders of the law feel that the strongest argument is that 1) Past commerce clause interpretations have recognized that the government can regulate economic inactivity, IF that inactivity affects interstate trade. And 2) Just by being alive, you’re participating in the national health care market. I don’t care how libertarian you are, nobody is sitting around in a forest with a broken leg waiting for the witch doctor to show up. As soon as you call 911, BINGO, you’re participating in interstate trade.

It’s terrible legislation. Single-payer is constitutional. Killing this stupid law will make single-payer the only option to reduce healthcare costs.

Serious question: does it mean that Massachusetts HC is in danger as well?

Unfortunately, you are just incorrect enough on these points to leave an opening – in brief:
1. The individual mandate is arguably a penalty, not a tax. This is a distinction that has been recognized in the past. Obviously, it is highly analogous to a tax – and the government has definitely not abandoned this argument – but there is some room for debate on this point. The taxing power does not extend to levying penalties.

2. It is not clear that regulation of inactivity has every been held to be constitutional under the commerce clause. The government is inarguably allowed to PROHIBIT POSITIVE actions as long as they have any connection to interstate commerce, however tenuous. However, the government has, arguably, never required positive activity. You might respond that anti-discrimination laws, for example, require the “positive activity” of opening the locked door of an open business establishment equally for minorities and non-minorities, but a conservative might respond that this isn’t “required activity,” it is merely the regulation of existing activity (operating a business). This points to how facile the activity/non-activity distinction is… but the Court has never expressly ruled on it.

This is why progressives should simply repeal the individual mandate – its not worth sinking the rest of the ACA over.

It can’t be. The ruling was related to the commerce clause, or restriction on the federal government. States are not as restricted so I don’t see how this could be a problem for MA.

No – states aren’t limited in the same way as the federal government. They possess “police powers”, which basically means they can pass laws on whatever subject they like, so long as those subjects are not expressly reserved to the federal government.

Why does no one ever mention the most important part of this law? THE SUBSIDIES!

For instance, if you’re a family of four earning $40,000 a year, you will get TEN THOUSAND DOLLARS to help you buy insurance.

Plug in some values and see for yourself: http://healthreform.kff.org/SubsidyCalculator.aspx

This is huge, and the most under-reported part of this bill. Literally thousands and tens of thousands of dollars for people working hard and playing by the rules to get affordable health insurance. It’s CRAZY that Republicans are cheering taking this away from them.

Indeed. The way the law is structured there is a health care responsibility tax that applies to everyone, which you can get out of paying by showing proof of insurance to the IRS.

There are no legal penalties for not having insurance. You just have to pay the tax, the rationale for which is impeccable. Uninsured patients impose significant cost on taxpayers.

Is the Court going to throw out the countless other tax credits/penalties based on things you buy? Giving a credit to people who have insurance is no different than giving a credit to people who buy hybrid vehicles, pay interest on their mortgages, install solar panels, etc.

The conservative case is crazy on its face.

Mpowell and JpS42 – thanks.

The two are in fact completely functionally identical. I have absolutely no idea how anyone can argue with a straight face that doing it one way is perfectly legitimate and not an issue and doing it a slightly different way that *accomplishes the exact same thing* is an assault on our liberty. Anyone with any kind of intellectual honesty at all would immediately realize that not allowing the mandate would logically mean that behavioral tax incentives can’t exist either and most of the tax code would have to be scrapped – either Congress has the power to lower or raise someone’s tax burden based on what he does or doesn’t do, or they don’t have that power.

To see judges write rulings that don’t effectively say just that has really set a new low for me in how far they’re willing to stretch logic to get whatever preferred partisan outcome they want.

The case against the mandate is so weak that that is what would happen if President Romney passed Romneycare nationwide.

I’m getting penalized as we speak for all sorts of non-activities: for not paying interest on a mortgage, not buying a hybrid, not installing solar panels, not investing in an empowerment zone, and countless other shit. Is that unconstitutional?

It would be 9-0 or 8-1 depending on how crazy Clarence Thomas was feeling that day.

Because it’s a Democratic health care bill that the conservative movement mobilized against there’s greater doubt, but I still doubt that Kennedy is going to hop in on this crazy train.

There are straight-out mandates to purchase things (not structured as a tax) dating back to the 1790s. The government has been giving people various credits and penalties for purchasing and not purchasing things for at least 100 years.

We can say that justices decide cases based on their policy preferences, but they have to be able to write the ruling in a way that doesn’t negatively affect their other policy preferences.

You are not penalized not buying a car.

Single payer will never happen in this country.We’ll bankrupt ourselves first. You’re chasing a pipe dream.

1. The only reason you can use the phrase “arguably a penalty” is because people are making that argument in bad faith. The difference is entirely meaningless in terms of what Congress is allowed to do. You’re saying with a straight face that a requirement to give the IRS $750 of your money is constitutional or unconstitutional based on the word used to describe that action? Seriously?

2. This is completely meaningless. A reward for doing a certain activity and a penalty for not doing that activity are *exactly the same*. Either way, they’re based on Congress’s power to offer different levels of taxation based on the actions one chooses to take or not take. I feel like I’m screaming at a brick wall here trying to figure out how this isn’t immediately obvious.

Really? Because people who buy hybrids, or solar panels, or homes, get to pay lower taxes than I do. What would you call it?

They’re cheering about eliminating the law before those subsidies ever happen.

i’m only a sociopath if i agree with your calculus that this bill is a net positive for the US health care system. i don’t.

The conservative jurisprudence that would throw out the ACA is one where forced contributions to a national health care system would also not be allowed. In a single payer system, you’re still mandated to buy insurance. It’s just a government-run insurance plan.

In crass political terms: Why on earth would Anthony Kennedy rule that the ACA is unconstitutional but somehow let single-payer health care slide? He’s not a firebagger, guys.

If he opposes the health care bill, it’s going to be from the right, not the left.

You are surprised that Republicans oppose giving low-income people money?

The conservative argument is that since in the hybrid example your inactivity means your tax rate stays the same while others who do that action have theirs go down, while with insurance your inactivity means your tax rate goes up while others who do that action have theirs stay the same, one is regulating inactivity and one isn’t. I would think that’d get you laughed out of a high school debate club, but apparently it’s the best they can come up with. I don’t know what to say to someone who thinks that it’s ok to offer tax breaks for doing certain things, and it’s ok to raise taxes, but somehow if you combine the two in one step it’s unconstitutional.

You have to admit, trying to claim that tax incentives can never be penalties is a bit of a stretch. To use a hypothetical, (where would a Supreme Court discussion be without a hypothetical?), suppose the government raised taxes by a million dollars per person, and then instituted a “good citizen” exemption for everyone except those who write bad things about the president?

On the other hand, if way back in ’08 Hillary and Barack had only talked about “encouraging health care coverage through tax incentives,” and that’s how we talked about this without changing anything in the law, I bet there wouldn’t be so much controversy.

As the the point about the commerce clause: Ezra Klein had some interesting examples of laws passed over history that sure seem a lot like mandates.

http://voices.washingtonpost.com/ezra-klein/2011/01/the_founders_health-care_manda.html

http://voices.washingtonpost.com/ezra-klein/2011/01/is_the_individual_mandate_unpr.html

I’m not a legal expert so I don’t have the names of the case on the top of my head, but one of the key Commerce Clause decisions involved a farmer who was growing crops for himself. Did that qualify as interstate trade? You betcha, the SC said. Since he would otherwise buy wheat off the market, I believe was the argument. So it wasn’t so much the activity of growing wheat but the inactivity of declining to purchase it on the market that the government was interested in.

Now I guess if the farmer was SO opposed to the federal government’s wheat regulations, then he could have just starved. But of course, this is the real world, people don’t starve themselves. They also don’t go through life without going to the emergency room, doctor, or hospital. Hell, most people can’t avoid being a hospital from the second they’re born.

Again, I’m not saying that the SC judges will agree with this argument. They may not. In fact, they may be so eager to roll back decades of expansive Commerce Clause interpretation that the health care repeal is just an excuse.

If only you were right…

First, I tend to agree that it is a tax, but there is a non-crazy case to be made that it is not. Taxes, for example, have as their primary purpose the raising of revenue for the government, even if they incidentally favor or disfavor certain activity. On the other hand, penalties have as their primary purpose the elimination or reduction of certain activity, even if they incidentally raise revenue. For example, tobacco taxes – these are primarily focused on raising revenue, even if they incidentally discourage smoking. The Individual Mandate, on the other hand, is primarily focused on getting people to buy insurance – it only incidentally raises revenue.

If the penalty had instead taken the form of a tax increase with an accompanying insurance tax credit, would it be constitutional? Undoubtedly. Is the distinction silly, even stupid, on some level? Certainly – but it does exist, and arguing that the individual mandate is an unconstitutional penalty certainly passes the “straight face” test.

Someone correct me if I’m wrong, but if this is the case against the ACA, wouldn’t it also make the MediCare law unconstitutional? I think these conservative judges are playing with fire for a partisan cause….

Here is the very definition of partisan antics from the bench; the epitome of the “judicial activism” that the right is so quick to call when they disagree with judge’s rulings. Vinson is a right-wing partisan that has completely overreached.
http://www.sunstateactivist.org

Well, people who make less money than you do also pay less taxes. And people who have more children. Or the blind. That’s the thing about taxes, the amount varies depending on the circumstances.

Penalty is something else: buy it or pay up. That’s not a tax.

“To use a hypothetical, (where would a Supreme Court discussion be without a hypothetical?), suppose the government raised taxes by a million dollars per person, and then instituted a “good citizen” exemption for everyone except those who write bad things about the president?”

If you replace “write bad things about the president” with something that affects interstate commerce, such that they have a justification for it, then yes, that would be perfectly legal. It makes no difference whether it’s $1 or $1 mil. There’s a difference between unconstitutional policies and ones that are clearly absurd. Any intellectually honest judge would strike down the entirety of behavioral tax incentives as a *necessary* logical consequence of declaring the mandate unconstitutional. They don’t because they know that at some level the Supreme Court rules based on popularity and they know that behavioral tax incentives are overwhelmingly popular. Just not this one.

“To use a hypothetical, (where would a Supreme Court discussion be without a hypothetical?), suppose the government raised taxes by a million dollars per person, and then instituted a “good citizen” exemption for everyone except those who write bad things about the president?”

If you replace “write bad things about the president” with something that affects interstate commerce, such that they have a justification for it, then yes, that would be perfectly legal. It makes no difference whether it’s $1 or $1 mil. There’s a difference between unconstitutional policies and ones that are clearly absurd. Any intellectually honest judge would strike down the entirety of behavioral tax incentives as a *necessary* logical consequence of declaring the mandate unconstitutional. They don’t because they know that at some level the Supreme Court rules based on popularity and they know that behavioral tax incentives are overwhelmingly popular. Just not this one.

I understand where you are coming from – and at a very basic level, you are right – there is very little practical difference.

Unfortunately, these terms have very specific meanings as interpreted by the judiciary. I get what you are saying – but the courts have drawn a distinction that, in close cases, seems very artificial. Now, you can challenge that distinction – but in terms of whether or not the mandate is constitutional, that won’t get you anywhere. You have to have an ARGUMENT as to why it is one or the other – and there are good-faith arguments both ways.

Are a large number of people advancing the “penalty” argument arguing in bad faith? Yes – but that doesn’t make them wrong. I happen to agree with you, but it is by no means as clear cut as you try to make it out.

I understand where you are coming from – and at a very basic level, you are right – there is very little practical difference.

Unfortunately, these terms have very specific meanings as interpreted by the judiciary. I get what you are saying – but the courts have drawn a distinction that, in close cases, seems very artificial. Now, you can challenge that distinction – but in terms of whether or not the mandate is constitutional, that won’t get you anywhere. You have to have an ARGUMENT as to why it is one or the other – and there are good-faith arguments both ways.

Are a large number of people advancing the “penalty” argument arguing in bad faith? Yes – but that doesn’t make them wrong. I happen to agree with you, but it is by no means as clear cut as you try to make it out.

Oh, then you’re a moron.

Oh, then you’re a moron.

Thanks to the Bush v. Gore non-precedent precedent, they can just say “this reasoning does not apply to any future case” and move on. Calvinball is FUUUUN!

Thanks to the Bush v. Gore non-precedent precedent, they can just say “this reasoning does not apply to any future case” and move on. Calvinball is FUUUUN!

Yes. But judges aren’t robots so they can selectively strike down what they want.

Back in the 1920s the Court developed this idea of individuals having extremely broad substantive due process rights, but they only applied these rights to say, the right of individuals to hire child labor, and not say, the right of black people to vote.

Yes. But judges aren’t robots so they can selectively strike down what they want.

Back in the 1920s the Court developed this idea of individuals having extremely broad substantive due process rights, but they only applied these rights to say, the right of individuals to hire child labor, and not say, the right of black people to vote.

You’re so utterly, completely wrong I feel as though I’m talking to a child.

The only people who think there’s any functional difference at all between a bill that raises everyone’s taxes by $500, then gives anyone who buys a certain product a $500 tax credit, and one that raises anyone’s taxes who doesn’t buy a certain product by $500, are frankly, complete idiots who aren’t capable of complex thought.

So if you agree that there’s no functional difference, and you agree that the first one is constitutional, then you’re honestly reduced to arguing that constitutionality is no longer determined by what bills actually do, but the manner in which they’re worded, and that using particular formulations of words determines whether a bill is constitutional or not, not what the bill actually does. I shouldn’t even have to respond to an argument like that, and it’s frankly insulting all of our intelligences if that’s really what you’re going with.

You’re so utterly, completely wrong I feel as though I’m talking to a child.

The only people who think there’s any functional difference at all between a bill that raises everyone’s taxes by $500, then gives anyone who buys a certain product a $500 tax credit, and one that raises anyone’s taxes who doesn’t buy a certain product by $500, are frankly, complete idiots who aren’t capable of complex thought.

So if you agree that there’s no functional difference, and you agree that the first one is constitutional, then you’re honestly reduced to arguing that constitutionality is no longer determined by what bills actually do, but the manner in which they’re worded, and that using particular formulations of words determines whether a bill is constitutional or not, not what the bill actually does. I shouldn’t even have to respond to an argument like that, and it’s frankly insulting all of our intelligences if that’s really what you’re going with.

But we have all kinds of tax credits that have nothing to do with raising *less* money for the government and are purely coercive. What’s the difference?

But we have all kinds of tax credits that have nothing to do with raising *less* money for the government and are purely coercive. What’s the difference?

If you repeal the individual mandate, every other coverage portion of the bill falls apart in terms of savings. You can’t get pre-existing conditions covered without drastically increasing cost. You can’t get middle aged uninsured people insured without drastically increasing cost. Which means increasing the subsidies, which means increasing the cost of the bill, which means it adds to the deficit instead of subtracts from it over the first 10 years. At which point you’ll have another point of traction for the GOP, even though they don’t give a crap about the deficit either, it’s a really good talking point for them.

If you’re going to repeal the subsidy, then you should repeal the EMTALA too (link: http://goo.gl/Z8dKV), because you’re essentially allowing those 35 million people to go without insurance and then providing them care (through Medicaid) when they have any type of illness, injury, or health condition. I don’t know a single person that thinks this is a good idea.

If you repeal the individual mandate, every other coverage portion of the bill falls apart in terms of savings. You can’t get pre-existing conditions covered without drastically increasing cost. You can’t get middle aged uninsured people insured without drastically increasing cost. Which means increasing the subsidies, which means increasing the cost of the bill, which means it adds to the deficit instead of subtracts from it over the first 10 years. At which point you’ll have another point of traction for the GOP, even though they don’t give a crap about the deficit either, it’s a really good talking point for them.

If you’re going to repeal the subsidy, then you should repeal the EMTALA too (link: http://goo.gl/Z8dKV), because you’re essentially allowing those 35 million people to go without insurance and then providing them care (through Medicaid) when they have any type of illness, injury, or health condition. I don’t know a single person that thinks this is a good idea.

The case you are referring to (the wheat case) is Wickard v. Filburn – a very famous case. If I were inclined to argue that the individual mandate was unconstitutional I would say that in Wickard, the government was regulating activity that already existed (farming) – not requiring activity where none existed.

Personally, I find this distinction unpersuasive – for example, environmental regulation requires businesses to engage in all kinds of affirmative activity (though a conservative would respond that there is an “escape” from these regulations by not going into business, whereas there is no “escape” from the individual mandate – though that doesn’t seem constitutionally significant to me).

The case you are referring to (the wheat case) is Wickard v. Filburn – a very famous case. If I were inclined to argue that the individual mandate was unconstitutional I would say that in Wickard, the government was regulating activity that already existed (farming) – not requiring activity where none existed.

Personally, I find this distinction unpersuasive – for example, environmental regulation requires businesses to engage in all kinds of affirmative activity (though a conservative would respond that there is an “escape” from these regulations by not going into business, whereas there is no “escape” from the individual mandate – though that doesn’t seem constitutionally significant to me).

It’s exactly the same thing: “Buy a hybrid, or pay higher taxes” is indistinguishable from “Buy a hybrid and pay lower taxes.”

It’s exactly the same thing: “Buy a hybrid, or pay higher taxes” is indistinguishable from “Buy a hybrid and pay lower taxes.”

Yeah, the scary thing about this mess is not losing the mandate, but the possibility that 5 judges would be willing to abandon logic so completely.

Yeah, the scary thing about this mess is not losing the mandate, but the possibility that 5 judges would be willing to abandon logic so completely.

Oh, I get their argument, it’s just total nonsense.

You’re so utterly, completely wrong I feel as though I’m talking to a child.

I take it this is your first time talking to abb11.

The magic happens in your use of the word “effectively”.

I understand your point, that in effect anything you chose not to do is an economic decision. By that same logic, you could say that because I live in NYC and dont own a car I’m making an economic decision that affects the price of cars….after all if everyone in this city bought cars they’d have a higher value. So by the logic of the individual mandate, maybe Congress can pass a law requiring all of us to buy cars, even from GM if they wanted, because after all transportation is important and everyone gets around in some way or another…..and to the extent we dont obey their commands, maybe they can charge us penalties for not buying cars too? How about eating tomatoes?? Can they force me to eat heirloom tomatoes?

This isnt going to work, and its why candidate Obama was against the individual mandate until he was elected, and faced the political reality of Big Insurance waging war on health care reform unless he went along with this ridiculous idea. He was right back then and Hillary was wrong.

There’s not “very little practical difference” between the two ways you could word the mandate. There’s *none*. Full stop. If the courts really want to go on record as saying that what specific actions the government does no longer matters when it comes to their constutionality, and that the same action is constitutional when one specific term in a bill is used to describe it and unconstitutional when a different specific term is used to describe it…well, they’re the courts, they can do that I guess. But it strikes me as perhaps the least convincing legal rhetoric I think I have literally ever heard and would set a new low in terms of pure partisan judges that simply make up a reason to decree whichever predetermined outcome they want. Which, again, they’re welcome to. But everyone should recognize it for exactly what it is and not pretend there’s any merit to what the logic is here.

There’s not “very little practical difference” between the two ways you could word the mandate. There’s *none*. Full stop. If the courts really want to go on record as saying that what specific actions the government does no longer matters when it comes to their constutionality, and that the same action is constitutional when one specific term in a bill is used to describe it and unconstitutional when a different specific term is used to describe it…well, they’re the courts, they can do that I guess. But it strikes me as perhaps the least convincing legal rhetoric I think I have literally ever heard and would set a new low in terms of pure partisan judges that simply make up a reason to decree whichever predetermined outcome they want. Which, again, they’re welcome to. But everyone should recognize it for exactly what it is and not pretend there’s any merit to what the logic is here.

You’re right of course – but none of it goes into effect for a few years, and hopefully the insurance companies and other interest groups that have pull with conservative members of congress will push hard for a fix in the meantime.

The other option is allowing the Supreme Court a chance to strike down the whole thing.

Given the choice, I would rather repeal the mandate and work to replace it (with the insurance industry, doctors, and a bunch of other influential interest groups probably on my side) with something clearly constitutional rather than give Scalia, Thomas, Alito, and Roberts a chance to persuade kennedy that all/most of the ACA should go. At least my plan leaves most of the structure intact – the alternative may very well be starting over at square one. I do admit, though, that it is risky…

You’re right of course – but none of it goes into effect for a few years, and hopefully the insurance companies and other interest groups that have pull with conservative members of congress will push hard for a fix in the meantime.

The other option is allowing the Supreme Court a chance to strike down the whole thing.

Given the choice, I would rather repeal the mandate and work to replace it (with the insurance industry, doctors, and a bunch of other influential interest groups probably on my side) with something clearly constitutional rather than give Scalia, Thomas, Alito, and Roberts a chance to persuade kennedy that all/most of the ACA should go. At least my plan leaves most of the structure intact – the alternative may very well be starting over at square one. I do admit, though, that it is risky…

I’m more than familiar with his work. I didn’t go into detail explaining it for him or expecting him to change his mind. I did so so if there are any other more rational conservatives lurking who’ve been told by everything they read that the bill is unconstitutional, they can find in no uncertain terms why they’re completely mistaken.

Your mistake is in the use of the word “force”, which completely mischaracterizes the issue at play here. If by “force” you mean “can the government pass a law that gives tax breaks to anyone who buys heirloom tomatoes”, then yes, they certainly can, inasmuch as they’ve done exactly that with hundreds of other products.

But you don’t mean that. You, like so many others, seem to think there’s some fundamental difference between being rewarded for buying something and being punished for not buying something. There isn’t. At all. It *feels* different, and so it makes for an argument that people can convince themselves is true.

It wont be that high. I think this will fall along the usual 5-4 partisan lines, with Justice Kennedy siding with the majority and dumping this individual mandate.

Conservatives, by the way, shouldnt be so thrilled at the prospect of the individual mandate going and the rest of the bill being left intact. The colossal reforms and requirements on the insurers without being backed up by the police power of the federal government will absolutely destroy the current US health care system and bring forward rapidly single payer in the United States.

All explanations are necessarily simplified .

There are a bunch of reasons – I would guess that the lion’s share of tax credits are never challenged in court. Gaining “standing” to challenge federal tax policy is not easy – in fact, most of the dozen or so cases that have been thrown out have been thrown out based on standing.

Second, most tax credits are aimed at encouraging this or that business/industry – subsidies of this kind would be pretty clearly constitutional under the commerce clause.

Yep. And thats exactly where we’re headed. My guess is thanks to the Roberts Court, that day will come sooner than it otherwise would!

“Why on earth would Anthony Kennedy rule that the ACA is unconstitutional but somehow let single-payer health care slide?”

If you raised the FICA tax, and lowered the age of eligibility for Medicare and increased Medicaid payments….that is 100% constitutional. Congress has well established powers of taxation and redistribution. Justice Kennedy is not a tenther.

The interesting thing, looking ahead to the Supreme Court, is that Justice Kennedy, unlike Judge Vinson, isn’t a dyed-in-the-wool member of the conservative political coalition. That said, he’s pretty conservative on economic policy questions so I’m not really sure where the confidence of progressive lawyers that they’re going to win this case comes from.

They’re confident they’ll prevail in the end because the bill that passed is Heritagecare, not socialized death panels. It’s hard to image a more conservative, pro-business form of universal health care.

Why would Anthony Kennedy be opposed to a system of private sector universalized insurance that was popularized by Mitt Romney?

It’s not just “progressive lawyers” who are confident they will prevail in the end. The insurance industry assumes that the law will stand as well, and they’re preparing for 35 million new customers.

It’s obvious the Florida attorney general went forum shopping for this result. There’s no reason to great freaked out about crazy district court rulings from arch-Republican judges when other courts have either dismissed health care lawsuits or ruled in favor of the health care law.

If the mandate is so inseverable, if it is in fact the means by which all the other constitutional ends of the act are accomplished, why doesn’t it fall squarely under the Necessary and Proper clause?

So if this tax is designed to encourage the health insurance industry (i.e., to allow them to lower prices on consumers) and/or relieve pressure on the health care industry, why shouldn’t it be a constitutional use of the commerce clause?

I seriously doubt that the individual mandate would be the only thing to go – I would give pretty good odds that (at least) the subsidies and the requirement on covering pre-existing conditions go with it.

I guess what I was trying to get at is that you can’t just use the government’s power to tax as a way to get around other constitutional restrictions.

But my analogy doesn’t work very well because in this case the supposed question is, “Does the constitution give the government the power to do this,” not “Does the constitution forbid you from doing this?” Obviously a judge would rule that my proposed Good Citizen Tax Exemption violates free speech. But that’s only because of the way that the First Amendment is written.

But still, I’m not sure I understand your point about whether or not the tax affects interstate trade. The constitution gives the government the power to raise revenue through taxes, and it gives the government the power to regulate interstate trade. But those are two separate things, right?

Why would the test of whether a tax is valid rest on whether it affects interstate trade?

Fine, I don’t really care for sophistry that much.

There will be, most likely, arguments at the SCOTUS, they will write their opinions, we’ll read them, we’ll see.

Lets imagine a perfectly constitutional alternative Affordable Care Act.

Congress could have covered everyone in this country by using tax credits, and subsidies as you’re suggesting they’d do for heirloom tomatoes. Thats not the legislation they passed. The word “mandate” has a meaning, its not an incentive it is a command. A command to do something whether you want to or not, or face penalties. There is nothing else in the law like it.

Okay – so there is NO “practical” difference – there is still a LEGAL difference, and since this dispute is being resolved in a court of law, that matters.

But it isn’t only about the terms in the bill – its about what the purpose is, why it is included, what its function is, etc. After all, we wouldn’t want something to be constitutional merely because congress asserted that it was, using the “approved” language.

We agree on the important points: the mandate is a constitutional exercise of congress’ power under the constitution (though I tend to think that the necessary & proper clause provides the strongest justification). We also agree that most opponents are arguing in bad faith.

But there is a serious argument to be made regarding the constitutionality of the individual mandate. If you want a scholarly discussion of this topic, please reference the volokh consipiracy (a legal blog which discusses this topic extensively).

Okay – so there is NO “practical” difference – there is still a LEGAL difference, and since this dispute is being resolved in a court of law, that matters.

But it isn’t only about the terms in the bill – its about what the purpose is, why it is included, what its function is, etc. After all, we wouldn’t want something to be constitutional merely because congress asserted that it was, using the “approved” language.

We agree on the important points: the mandate is a constitutional exercise of congress’ power under the constitution (though I tend to think that the necessary & proper clause provides the strongest justification). We also agree that most opponents are arguing in bad faith.

But there is a serious argument to be made regarding the constitutionality of the individual mandate. If you want a scholarly discussion of this topic, please reference the volokh consipiracy (a legal blog which discusses this topic extensively).

So if this tax is designed to encourage the health insurance industry (i.e., to allow them to lower prices on consumers) and/or relieve pressure on the health care industry, why shouldn’t it be a constitutional use of the commerce clause?

First off, I agree that it IS a constitutional use of the commerce clause – this regulation is “necessary and proper” to the regulation of the interstate healthcare system.

I also tend to agree that it is a constitutional tax, though that seems like a closer issue to me.

That said, if I wanted to argue against you, I would say that the this is a penalty, not a tax, and it is not justified under the commerce clause because the commerce clause does not allow the government to require affirmative activity. The government could have passed a tax, and then spent that money on the interstate healthcare industry – but that isn’t what they did. They imposed a penalty designed to force people, not otherwise participating in interstate commerce, to participate in interstate commerce.

But then we’re back to “how is that different than a hybrid tax credit” and basing constitutionality off of word choice rather than effect or intent. Which can happen, it’s just incredibly stupid.

Racht, the fact that you can’t tell the difference between incentive and penalty doesn’t reflect well on you as an adult, I must say.

You can tell me: come to my restaurant today and you’ll only pay a half price, $20.

You can not tell me: if you don’t come to my restaurant I’ll take $20 from you.

I dunno if it’s functionally the same, but surely it’s not the same.

That’s sorta my point.

I doubt Kennedy (or Roberts, or Alito for that matter) is going to adopt a flat out “NO HEALTH CARE FOR YOU” attitude where any attempt at expanding health care is ruled unconstitutional.

They have to know that if they throw out the market-friendly ACA the most likely alternative is going to be expanded Medicaid and forced contributions that they would find similarly or more objectionable than the mandate. They can’t somehow overrule the political demand for increased access to health insurance.

The mandate is nothing but a $700 tax that is waived if you have insurance. My state has a similar scheme where you are forced to pay a state disability insurance tax if you don’t purchase a private disability plan. Do you believe that that sort of disability scheme would violate the Commerce Clause if it were introduced nationally?

A major portion of the ACA that will insure 20 million people is the Medicaid expansion. This judge’s assertion that the Medicaid expansion is non-severable from the rest of the bill is just insane on its face.

Medicaid has been expanded routinely through various budget deals and other larger packages, parts which have been litigated through the courts. No one ever made the claim that if something happens to be in the same bill, and if something in the bill is unconstitutional, the entire bill is unconstitutional. You would end up shutting down the entire government over technical disputes over tiny provisions of laws if you took that approach.

If I recall correctly, the last conservative judge who ruled the mandate unconstitutional laughed out the non-severability claim. This latest judge is just a teabagger.

I’d just want to add that if Kennedy doesn’t hop on to the “the mandate is unconstitutional” train, I don’t see Roberts hopping on, either. Roberts will want to control the majority decision, not dissent. So I’d say 6-3 in favor of constitutionality is probably the spread.

Because some right wing judge is an asshole?

And then we’ll all get ponies too, I imagine.

Why on earth would a conservative court throw out the market-friendly ACA but just wave through a single-payer health care scheme?

You guys are just engaging in wish fulfillment.

If Obama had passed single payer we would be seeing the exact same “Obamacare is unconstitutional” movement and yes, they would find teabagger district court judges willing to go along with them.

There is enough case law out there that a skilled jurist (or his staff) has a decent shot at justifying just about any ruling short of authorizing slavery or secession from the Union.

Given that fact, it just comes down to what the median justice prefers to do.

The hybrid tax credit works like this:

Everyone pays income tax. The government reduces your income tax by a certain amount if you buy a hybrid car.

The individual mandate works like this:

If you don’t have health insurance, you pay a fine.

The government could have easily made the individual mandate constitutional by raising everyone’s taxes, and then giving out a “health insurance tax credit” – but that isn’t what they did. Yes, it is kind of a silly distinction – but an important distinction nonetheless. If I wanted to defend this distinction, I would argue that it forces the government to be explicit about raising taxes, rather than doing it through levying “fines” on various things. This view even has some merit – after all, Obama went to great lengths to argue that this wasn’t a tax – presumably because “raising taxes + giving a tax credit” is a harder lift than imposing a “fine” on people without insurance.

I could see this argument if the penalty were greater than the cost of the insurance, because then you would have little choice but to buy it. But under this scenario the average citizen still has an immediate economic incentive *not* to have health insurance, just a much smaller one.

I’ll agree with you 100% that had the votes been there in the Senate to pass Canadian style single payer health care into law, that there would be plenty of people, including federal judges, who’d rule it unconstitutional because they dont like it.

So if you’re satisfied that Congress has the power to force you to buy things and everyone who doesnt think so is crazy or a teabagger God bless.

Um, that is exactly how the ACA is structured.

The $700 tax is imposed on everyone. People with insurance get a credit that cancels it out.

I guess the linchpin for me is that what the government really cared about in Wickard v. Filburn was the fact that the farmer wasn’t buying wheat on the open market. Otherwise, it wouldn’t have affected anything regarding his growing of wheat.

OK, so maybe instead of proactively requiring you to buy health insurance, the law could just ban all other types of health care that is possible. They could ban any doctor from practicing on a patient without insurance, they could ban hospitals from accepting anyone without insurance, and they could ban police from transporting anyone without insurance to a hospital.

That would achieve the same result. It would also be a very cruel thing to do. That’s why proactively requiring people to buy insurance is a much more workable and acceptable option.

I realize there are some problems with my thinking here. For one, in Wickard, the gov’t didn’t really care if the farmer grew wheat on his farm or bought it on the open market–they just wanted to make sure that he didn’t grow so much wheat that it affected the value of wheat on the open market. And since the government’s overall goal here is to restrict the production of wheat, it’s a bit hard to draw an analogy to a situation where the government’s goal is to promote something.

But to me, the relevant issue is that the Supreme Court recognizes that your own personal conduct can affect interstate trade, even if you aren’t actively participating in it.

@werewrw

Indeed. the $700 health care responsibility tax isn’t going to end all freedom in America. No one is being locked up for not having insurance.

It will increase the tax burden of those without insurance by a small amount. This amount is justified by the amount of uncompensated care that ends up being subsidized by tax money.

@werewrw

Indeed. the $700 health care responsibility tax isn’t going to end all freedom in America. No one is being locked up for not having insurance.

It will increase the tax burden of those without insurance by a small amount. This amount is justified by the amount of uncompensated care that ends up being subsidized by tax money.

dssssss –

I’m pretty sure that that is NOT how the individual mandate works. It is, in fact, NOT a tax increase + tax credit. If you can prove differently, I would really appreciate a link to your source.

werewrw – That is an argument that some have made against the individual mandate being constitutional under the “necessary and proper” portion of the commerce clause. You are right, but, generally speaking, courts will hold an act of congress constitutional under the commerce clause as long as it is “rationally related” to a legitmate purpose – which the individual mandate pretty clearly IS.

The only way that analogy works is if everyone has to buy every meal from that restaurant.

You’re right and this may say something important about the judicial system.

Congress isn’t forcing anyone to buy anything. They’re forcing some people to pay a $700 tax.

The rationale for the tax is impeccable. Uninsured patients, like everyone else, end up going to hospital emergency rooms for care. Much of this care ends up getting paid for by federal programs like the Medicare disproportionate share program, which subsidizes hospitals that provide care for large numbers of uninsured patients.

Because uninsured patients end up costing the government money, it is fair to expect them to pay an additional tax.

Actually, the rationale in Wickard was even more tenuous – the farmer growing wheat on his own did not impact interstate commerce – but since, collectively, the actions of ALL farmers impact interstate commerce, then prohibiting THIS farmer from growing wheat was a constitutional exercise of power under the commerce clause. It is a VERY wide ranging power.

If I were a conservative, I would say that your first paragraph proved my point – the government really wanted him to be buying wheat on the open market. It did NOT, however, require him to buy any wheat (which would be unconstitutional regulation of INACTION under their theory) – instead, it regulated only his activity by prohibiting him from growing wheat in excess of federally mandated quota.

To me, the best argument is this: the government has the power under the commerce clause to regulate the interstate insurance market. They did this, requiring all insurers not to discriminate against people with pre-existing conditions. In order to effectuate this regulation, it was necessary and proper that the government require all individuals to carry insurance (so as to avoid the insurance death-spiral). Thus, the individual mandate is constitutional.

But conservative arguments in this regard are, at least, plausible…

The Federal Government requires me to have flood insurance. If I do not have a private policy (~$300/year), the Federal Government causes a policy to be written for me (~$5000/year). My mortgage holder and my insurer are institutionally incapable of efficient communication, so I’m reminded of this every year.

Granted, this is not a tax. But, the effect is the same.

On what grounds would the rest of it fail to pass constitutional muster? You do realize that if the whole thing is unconstitutional then a huge amount of federal regulation and many other federal subsidies are also unconstituitonal? Maybe the glibertarian fringe would celebrate that result, but no sane person would want to wreck the nation to return it to some 1830s “utopian” state.

On what grounds would the rest of it fail to pass constitutional muster? You do realize that if the whole thing is unconstitutional then a huge amount of federal regulation and many other federal subsidies are also unconstituitonal? Maybe the glibertarian fringe would celebrate that result, but no sane person would want to wreck the nation to return it to some 1830s “utopian” state.

Actually, abb11, the fact that there *is* no real difference between a discount and a penalty is how a lot of Supermarkets make their money. Get a supermarket preferred card and you get lower prices! Yay! But those prices are only lower than the prices for the people who are penalized for not having the card. It’s not a “savings” card, it’s a “charge me the regular price” card.

Similarly, gas stations prefer when people use cash, and often there’s a lower price for using cash than a card. Some gas stations advertise this as a “cash discount”, when in fact it’s a credit card penalty–they’ve got to make up the fees credit cards charge them and all.

Or forbidden by their own state constitutions.

Definitely, its not like they forgot about it, severability clauses are pretty much standard boilerplate for any piece of complex legislation. The clause wasn’t forgotten, it was removed.

Why? Because the embedded insurance lobbyists on the Senate Finance Committee figured that if they held the rest of the bill (which was clearly constitutional) hostage while the courts decided if the individual mandate was constitutional, the courts would wimp out instead of chucking the whole bill. In other words, a group of Democratic senators gambled that federal judges were as hacktacular and weak as they were. Bad bet.

Medicare taxes will still be constitutional. Like Churchill said, Americans can always be counted to do the right thing… once they’ve exhausted all other options.

Medicare taxes will still be constitutional. Like Churchill said, Americans can always be counted to do the right thing… once they’ve exhausted all other options.

+ 1000

+ 1000

Right–if all farmers used their own land and disregarded federal limits on wheat so they could feed their own chickens, then it would depress the price of wheat for those who are trying to sell wheat on the open market.

But, if I’m understanding correctly, what the government did in Wickard was to ban the alternative to buying wheat on the open market. It has the authority to do this because the alternative, even though done private on your own property, affects the interstate trade of wheat.

So what’s the alternative to buying health care insurance? I guess one alternative is to never get sick or to never use health care. But that’s like saying that if the farmer doesn’t like the federal regulations on wheat he’s free to starve. It’s fantasy-land. You could maybe have your family care for you, which I guess is OK as far as it’s possible. Maybe your friend went to medical school, and he’s willing to help out, either for free as a favor or in exchange for some extra cash or favors. At this point, you’re DEFINITELY starting to affect the interstate health care trade.

So you have alternative C, to use emergency medical care and hospital service. This option is available to you because the government has passed a law saying that no hospital can turn away a patient.

So, in other words, the only way to avoid buying health care insurance is to take advantage of health care system largely funded and maintained by the federal government. I think that’s the strongest case that to require health care insurance is simply to alter a relationship between a citizen and the government that has already long existed, and would continue to exist without the individual mandate.

P.S. I appreciate this discussion, and I’ve learned a lot. Thanks! Also, I’m very tired, so I apologize if my argument is getting a bit loopy.

Right–if all farmers used their own land and disregarded federal limits on wheat so they could feed their own chickens, then it would depress the price of wheat for those who are trying to sell wheat on the open market.

But, if I’m understanding correctly, what the government did in Wickard was to ban the alternative to buying wheat on the open market. It has the authority to do this because the alternative, even though done private on your own property, affects the interstate trade of wheat.

So what’s the alternative to buying health care insurance? I guess one alternative is to never get sick or to never use health care. But that’s like saying that if the farmer doesn’t like the federal regulations on wheat he’s free to starve. It’s fantasy-land. You could maybe have your family care for you, which I guess is OK as far as it’s possible. Maybe your friend went to medical school, and he’s willing to help out, either for free as a favor or in exchange for some extra cash or favors. At this point, you’re DEFINITELY starting to affect the interstate health care trade.

So you have alternative C, to use emergency medical care and hospital service. This option is available to you because the government has passed a law saying that no hospital can turn away a patient.

So, in other words, the only way to avoid buying health care insurance is to take advantage of health care system largely funded and maintained by the federal government. I think that’s the strongest case that to require health care insurance is simply to alter a relationship between a citizen and the government that has already long existed, and would continue to exist without the individual mandate.

P.S. I appreciate this discussion, and I’ve learned a lot. Thanks! Also, I’m very tired, so I apologize if my argument is getting a bit loopy.

The law is actually phrased thusly:

`(a) Tax Imposed- In the case of any individual who does not meet the requirements of subsection (d) at any time during the taxable year, there is hereby imposed a tax equal to 2.5 percent of the excess of–

`(2) the amount of gross income specified in section 6012(a)(1) with respect to the taxpayer.

Then it goes into definitions or exemptions. But this is clearly a *tax* which is imposed on anyone who doesn’t provide evidence that they are exempt from it. The word “mandate” doesn’t come up in this section at all.

That can’t possibly be correct. A flat $700 head tax that isn’t based on income level would fall afoul of prohibition of direct taxes not apportioned by state population.

Why would Anthony Kennedy be opposed to a system of private sector universalized insurance that was popularized by Mitt Romney?

Um, he’d be opposed to such a Republican system because Republicans no longer support it. Everybody knows Republican ideas magically become Marxist Sharia laws the moment they’re discarded and championed by Demcorats.

I think the main thing to think about with respect to Justice Kennedy is his intelligence, and perhaps his sense of history. Nobody with a lick of common sense could possibly think America’s fucked up practice of allowing millions of people to go uncovered by health insurance will last indefinitely. Does he really want to go down in history as a anachronistic crank who wrongly delayed universal health insurance by ten or twelve years?

Someone correct me if I’m wrong, but if this is the case against the ACA, wouldn’t it also make the MediCare law unconstitutional?

Don’t follow you. MediCare is funded by a tax. The idea that the federal government can enact taxes isn’t remotely controversial. The idea that it can force you to buy something is. (I think it shouldn’t be controversial, mind you, but I’m just a liberal pussy).

What makes you think there’s any bar in case law or “the common law,” (the judge-made kind that is a lot of what the Supremes do), that would impede the Justices from finding slavery and secession both legal and “constitutional?” Can you spell “Citizens United?”

Don’t be so sure. I’m no ConLawyer, but, in the (I hope unlikely) event Kennedy kills ObamaCare, don’t be shocked if he and the majority invent some new libertarian constitutional right that states aren’t allowed to trample.

dssssss: that was the most lucidly simple explanation for justifying the individual mandate I’ve ever read. Well done, and thanks.

Well sure. This would probably be where (per Wikipedia) “the more politically accountable branches of government” would step in and take away some gavels, were they of a mind to.

+1. That line of perfect iambic pentameter belongs in a couplet at the end of a sonnet. Consider:

Let’s not confuse incompetence with haste:
Put garbage in, and what comes out is waste.

(Assuming the overbite-hands-rubbing-together pose of Charles Montgomery Burns:) Excellent!

A separability clause would be awfully stupid in such a deeply interdependent law.

“Oh no no, m’dear Justices, please don’t strike the only provision that was put in to protect insurance companies from the fast-track to bankruptcy while holding all other provisions of the law intact, thereby ushering in publicly financed universal health insurance. And while you’re at it, please don’t throw me in that there brier patch!”

Do you live in Death Valley?

I think you’ve misread the Attitudinal Model Revisited (and, as near as I can tell, have read nothing else) and gotten a warped view of judicial decision making. Some people believe issues *before the supreme court* are decided by the attitudes of the justices, and those same people tend to think that the attitudes of district and appellate and state judges have a big impact on how *they* decide issues, but vanishingly few legal academics have claimed that *all* cases and *all* policy is decided by the attitudes of the median judge in the US.

Reread the attitudinal model revisited, and you’ll see that one of the reasons the authors think the attitudinal model works so well for the supreme court is that it has such a small number of mandatory jurisdiction cases (I think this is in the chapter on granting cert?). There are, according to the authors, some areas of the law so settled that it is really unlikely judges will try to maneuver around them (this may be a big or small zone, and may exist for whatever reason, but I think it pretty clearly exists. To give a classic example, pretty much any court is going to vacate a law saying that the president can be 30, at least if there is an actual case in controversy. To give a real world example, no way in heck was the indiana fund going to be able to come up with a color-able argument in the Chrysler Bankruptcy, even if conservative justices might have been tempted to oppose the underlying policy), but that doesn’t matter for SCOTUS, which can choose to simply not waste its time on cases dealing with those issues.

Most lawyers thought this would be one of those issues. If it isn’t, I think it is another sign that the Roberts court has a smaller “don’t touch this, even if you disagree with policy” zone than the Rehnquist court, but I don’t think it means that zone doesn’t exist. There are a lot of laws, rules, and executive actions that I think five people on this court would like to overturn but, for whatever reason, don’t.

Another thing you seem to be ignoring is that most lawyers are aware of the attitudinal model and have incorporated it into their thinking. It may be that progressive lawyers are so sanguine about this law simply because they’ve made the calculation that five justices will want to support it. Something you constantly ignore in your writing about the Court is that the attitudinal model is only so good because it is *predictive*. You aren’t supposed to throw up your hands and say, “its all up to Kennedy!”, you are supposed to be able to say with some high degree of confidence, “Kennedy is probably going to do x.”

Jon –

Let me clarify: the reason I say other portions of the law would be in danger if the individual mandate were struck down is NOT because I believe the Court would hold those other portions to be unconstitutional. Rather, as the judge in Florida held, they may be found to not be “severable.” For practical purposes, a portion of a law is held to not be “severable” from another portion if the Court determines that it cannot function independently, or if Congress would not have passed the portion(s) independently of the struck provision(s).

There is, in my mind, a strong argument that, without the individual mandate, neither the prohibition on pre-existing conditions, nor the subsidies, would have been included – thus they are also in danger.

I’d like to emphasize that I favor the affordable care act as a policy, and I believe that it is fully constitutional. However, I think it may be time for progressives to consider repealing the individual mandate in order to prevent Supreme Court review, and the attendant possibility that it will reverse the ACA entirely or in large part.

Or forbidden by those amendments to the constitution which are incorporated by the 14th amendment against the states . Or which are covered by the “negative implications” of the commerce clause… I could go on.

General point: States can do things unless they are prohibited, the federal government can’t do anything unless it is allowed to.

Or forbidden by those amendments to the constitution which are incorporated by the 14th amendment against the states . Or which are covered by the “negative implications” of the commerce clause… I could go on.

General point: States can do things unless they are prohibited, the federal government can’t do anything unless it is allowed to.

I also think the fact that people often cannot choose not to use health care is persuasive – unconscious victims in a car crash aren’t asked if they would like to opt out of their helicopter lift.

However, at the core, you hit the nail on the head – the alternative for the farmer IS to starve. Or he could go to school and get a different job – realistic? Of course not. Law is littered with these sort of “legal fictions” that courts indulge in.

These fictions rarely make much sense to anyone but a lawyer. There ARE reasons for them – but in cases like this they become fairly transparent. The reason that a lot of people on here are having trouble with the penalty/tax distinction is, it seems to me, because they can’t accept that there can be a LEGAL difference if there isn’t a PRACTICAL difference . In a word, the Supreme Court says that there can be and, to paraphrase Supreme Court Justice Robert Jackson, they are infallible because they are final.

I’m always glad to shed what little light I can on things – glad I could help.

I believe you are wrong about this. Severability is a matter of legal formalism usually, not a case of the Courts wading into the public policy thicket and fuctioning as legislatures.
Severability is sometimes explicitly included in complex legislation by actual words in the law that establish it. Unfortunately the ACA did not do this.
But severability is also implied in a law if its various parts can (as a matter of logic not policy) stand alone. Obviously there are many aspects of the ACA that can and do stand alone. What, for example, does the student loan section of the law have to do with the indidividual mandate. Ditto, the Medicaid expansion, the subsidies for individuals to buy health insurance, the state-run exchanges, etc. etc. etc.
Note that in the Virginia case the judge there did find for severability while strking down the individual mandate. Indeed, it is rare as far as I know for the courts not to find severability in a complex law with many stand-alone parts.
That this Florida judge did not is as breathtaking a piece of activist judicial overreach as we are ever likely to see.
For that reason alone I do not expect the Supreme Court to agree with this decision. The Roberts court is nothing if not exceedingly cautious, shy of breathtaking precedents, and much in love rather with narrow technical decisions without far reaching effect. The Supreme Court may well end up agreeing with the Virginia decision (though I think even that will be a stretch) but I can’t see how they will agree to strike the entire law because of one objectionable feature of it. Rather they will either affirm it in its entirety, or strike down the mandate and instruct Congress to fix any problems that may cause.

Eh? No, a corner of my property is overlaps a 50 year flood zone.

Dumber things have happened on the Supreme Court.

I find it ironic that the same people who believe in a “living document” that can mean whatever they need it to mean to pass their agenda, are thoroughly horrified by the idea that anyone else would let their personal preferences affect their interpretation of the Constitution.

That’s because you don’t really understand the meaning of the idea that the Constitution is a living document. Hint: it’s not the same thing as thinking that the Constitution “can mean whatever they need it to mean to pass their agenda.”

It seems pretty clear to me that the Affordable Care Act is dead with the Supreme Court stacked with pro-corporate hacks. Why would it go any different than a ruling allowing multi-billion dollar corporations the same rights to fund elections as an unemployed auto worker? There’s a lot of money to be made in dropping the sick from insurance roles, etc.

I think it is time to use the conservatives’ own states rights championship against them. New England, NY, Delaware, NJ, MD, CA, OR, and WA (I think PA is now too conservative to be included – and I have my doubts about NJ too) should back out of federal health care and form a combined single-payer system; one which is allowed to bargain for prescription drug prices, down to a reasonable level (~10% of what it is now) or else lawfully purchase the drugs abroad if cheaper; and where either:

(1) They dissolve the insurance companies all together; or

(2) They cover preventative, chronic, and emergency care, while leaving a private market open for elective care (such as hip replacement, etc). This would be similar to the Australian system, which I think works pretty well.

This might force the conservatives to sue under federal anti-trust laws; I think it would be a hard argument for them to win if the single payer system is shown to be not-for-profit (health care should be this in any case), and thus it would not be a business but rather a state-sponsored charity.

The road block would be getting state legislatures to pass it – but I bet a majority of these states’ populations would support it.

That’s because you don’t really understand the meaning of the idea that the Constitution is a living document.

Sure I do. I just don’t obscure the meaning with a lot of bullshit.

Evidently, you replace the meaning with a lot of bullshit.

Please, this was utterly predictable. File challenge in GOP hack judge’s district, judge serves up seventy pages of steaming B.S.

This is a good point. Kennedy in particular seems very concerned about being on the right side in the history books — see Lawrence.

That said, he’s pretty conservative on economic policy questions so I’m not really sure where the confidence of progressive lawyers that they’re going to win this case comes from.

Wow, I’m just glad we had neolib shills like you and Ezra Klein hawking the virtues of this regulate-mandate-subidize Rube Goldberg contraption 24-7. Nobody could possibly have predicted that conservatives would exploit the gratuitous overcomplication of this piece-of-shit bill to destroy the last chance at health care reform for another century. Thank God nobody listened to the dirty hippies who were advocating for the “un-pragmatic” approach of giving everyone insurance and paying for it out of taxes.

Yeah. Without the individual mandate, the whole thing collapses. Bad move. The whole point of insurance is that healthy people subsidize the rest. There’s a good reason a lot of this is nonseverable— it doesn’t make any fiscal sense if most of it doesn’t come as a package.

Yeah. Without the individual mandate, the whole thing collapses. Bad move. The whole point of insurance is that healthy people subsidize the rest. There’s a good reason a lot of this is nonseverable— it doesn’t make any fiscal sense if most of it doesn’t come as a package.

Stephen (and others), forgive me if this has been addressed already, I haven’t read all the comments.

Yes, my friends, there is a difference between punishment and award. If you want your dog to do something, you can kick it, or you can give him a biscuit, these are different things.

You receive income, you pay your taxes, and what’s left is your money, your net income. You can do anything with it (within the law), stuff it into your mattress, burn it, the government has no claim on it. Your net income is the base-line.

When the government wants you to do X, it could (among other things) do the following:
A – bribe, award you for doing X by offering you some of its own money or
B – penalize you for not doing X by taking some of your money.

Note that when you’re penalized, there must be a redress available, you should be able to go to court.

The government awards you for buying a hybrid, that’s the A scenario.
The government penalizes you for not buying insurance, that’s the B scenario.

These are two different scenarios. There is a judge who (for good or ill) believes (or pretends to believe) that A is allowed, and B is not. Consequently, the judge rules that B is not allowed

You don’t like the ruling, and you are saying that there is no difference between A and B. That is not smart, because clearly there is a difference. You sound like a sophist and a hack, or a dogmatic person who can’t think for himself.

Now, you could say: ‘yes, there is a difference, but still B should be allowed’. If you did that, I would question your commitment to this belief – what if X is say, buying a handgun? Subscribing to FoxNews? Would you still feel the same way? I doubt it.

The best you can say here is this: ‘yes B is not allowed under normal circumstances, but in this case it’s so important that we should make an exception.’

Does it make sense to you?

abb11, this is not a difficult concept to understand: While penalties and rewards are generally different, if you’re simply dealing with two classes of people and a lower/higher sum of money they must pay, *there is no difference*.

Suppose you’re a doctor. Like many doctors, you want to establish a pool of regular patients and generally discourage one-time visits. Suppose you offer checkups for the price of $100 and you offer a 20% discount for being a regular customer. Alternately, you could set the price at $80 and offer a 25% surcharge for first-time customers. One’s a “discount” and one’s a “penalty”, but either way you are doing *exactly the same thing*. The only thing that changes is that by calling it a discount you create positive feelings among people who don’t think about it too hard.

A tax deduction or penalty is the same way. Either way, all the government is doing is creating two separate classes of taxpayer–those that meet the requirement to pay less and those that don’t. Functionally, a hybrid credit and a health care penalty are *exactly the same*. You getting hung up on how the issue is framed just shows you’re susceptible to this particular tactic.

What you are saying, in your doctor example, is that the government could give a tax break to those who buy the insurance. That’s true, they could institute a new healthcare tax, and refund it to everyone who bought an insurance. That would’ve been my A scenario, the ‘award’ scenario, that the judges find unobjectionable.

But the government didn’t do it that way. They went with the second, ‘punishment’ scenario, and apparently it was a bad move, unless, of course, they planned this outcome from the beginning.

You say it’s “*exactly the same thing*”, by which you mean that it produces the same result, but (assuming it’s true) the fact that two different actions produce the same result still does not make them “*exactly the same thing*”.

The only difference is in labeling. They’re “exactly the same thing” in exactly the same way that if I divide a loaf of bread in half and call one half “bread” and the other half “pan”, they’re exactly the same thing. If it matters to you what your bread is called, well, good for you, but don’t expect me to buy that they’re different just because they’re labeled differently.

Oh, and the way the law is actually worded is that it’s a tax on anyone who doesn’t prove themselves exempt. So it’s pretty much just a hike and a deduction, which seems to fit into your “reward” scenario.

Well, these things matter in law. I can imagine a regulation that prohibits doctors from adding a surcharge, but not from giving a discount.

The only way that kind of law would make any sense would be if there were a bar to measure it against–Doctors can charge less than some standard amount, but not more. But a law without some benchmark that tries to prohibit a surcharge would be utterly ludicrous. All it would do would take the so-called “surcharge” and make it “the price.”

And if they are so different, take a look at the actual language in the law and tell me why it’s a penalty rather than a tax hike.

‘‘SEC. 5000A. REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.
‘‘(a) REQUIREMENT TO MAINTAIN MINIMUM ESSENTIAL COVERAGE.—
An applicable individual shall for each month beginning
after 2013 ensure that the individual, and any dependent of the
individual who is an applicable individual, is covered under minimum
essential coverage for such month.
‘‘(b) SHARED RESPONSIBILITY PAYMENT.—
‘‘(1) IN GENERAL.—If an applicable individual fails to meet
the requirement of subsection (a) for 1 or more months during
any calendar year beginning after 2013, then, except as provided
in subsection (d), there is hereby imposed a penalty
with respect to the individual in the amount determined under
subsection (c).

They want to take your money, from your after tax income.

Hmm, where’d you get that? What I saw was this:

`(a) Tax Imposed- In the case of any individual who does not meet the requirements of subsection (d) at any time during the taxable year, there is hereby imposed a tax equal to 2.5 percent of the excess of–

`(1) the taxpayer’s modified adjusted gross income for the taxable year, over

`(2) the amount of gross income specified in section 6012(a)(1) with respect to the taxpayer.

http://democrats.senate.gov/reform/patient-protection-affordable-care-act-as-passed.pdf (pdf) I can’t find your text there.

Nicely done.

Hmm, maybe what I found on Thomas was the old House version or something. Ah well. Still, it’s a matter of phraseology with no functional difference.

” the fact that two different actions produce the same result still does not make them “*exactly the same thing*”.”

Absolutely right. This is a distinction lost on people who are inclined to support this individual mandate. Just because a tax credit causes a certain behavior that someone may otherwise not undertake, doesnt mean its legally the same thing as a mandate, that unless it is obeyed you incur a penalty.

Congress could have tried this with home ownership. The mortgage interest deduction exists to cause more people to buy homes, they could just as easily have passed a mandate obligating you to buy a house or pay $1,000 in some punitive tax for not obeying their commands.

The effect of a tax credit that incentivizes people to undertake a specific activity simply isnt the same in the eyes of the law as passing legislation that orders you to engage in commercial activity of some kind, or face penalties.

So thats the legal side. From a political perspective, I’m fascinated at how this sort of thing became the liberal cause to die for! The state is ordering you to go out and buy things from private companies. What in the hell is progressive about that??

I would add that incentives being the same as mandates backed up by penalties having no difference doesnt even fly out in normal everyday life.

There are two pretty clear ways my sister could get her 6 yr old daughter to clean up the toys in her bedroom. One, she could promise to give her things if she does it. Two, she could command (or mandate) she do it because she said so, and threaten to put her on punishment for not doing so.

Regarding the government, you get the same behavior either way but ladies and gentlemen one of these is 100% constitutional and the other simply is not.

It isn’t exactly what progressives wanted. Progressives generally want either single-payer or sociallized medicine. This puts them slightly to the left of the majority of Americans who want single-payer. Unfortunately, the Democratic party is controlled by its uncompromising conservative minority, so we get this crap, which is still better than what we had.

Congratulations on emerging from your bomb shelter this morning. If you’re interested, the cold war is over.

Now if you’ll excuse me, I am going back to earning an income, even though the government has told me I must not do so, and will inflict punitive taxes on me for ignoring them.

It is a relief to know I needn’t have worried about the Vietnam draft since that is an unconstitutional mandate.

Also a relief to know that the IRS can’t impose a penalty on inactivity if I decide not to pay my taxes this year.

Both these are apples to oranges comparisons – the draft falls under Congress’ power to “raise and support” armies. The income tax relies on congress’ general power of taxation as well the sixteenth amendment to the U.S. constitution. Neither of these depend on cogress’ power to regulate interstate commerce.

I agree that the individual mandate is constitutional – but its important to get your arguments straight.

While I agree with you in principle (same effect =/= same policy), I think you are overstating the difference in this case – a more apt analogy might sound something like this:

1. Unconstitutional penalty – your sister threatens to take away a toy unless the room is cleaned;
2. Constitutional tax – your sister tax away the toy, but promises to give it back if the room is cleaned.

Either way, the end result is the same (if the room isn’t cleaned, then the child is deprived of a toy), but one is constitutional and one is not. Obviously this oversimplifies the penalty/tax distinction somewhat (courts have held that some things that look like penalties are really taxes, and vice versa, depending on various factors), but I think it helps clarify why people get hung up on the “distinction without a difference” argument. There really ISN’T a practical difference – but there is a LEGAL difference.

You’re right – if the individual mandate is removed the whole scheme might collapse. On the other hand, if the individual mandate ISN’T removed, then the whole scheme might be overturned as unconstitutional. At least my way we only have to replace one part as opposed to the entire ACA.

You’re right – if the individual mandate is removed the whole scheme might collapse. On the other hand, if the individual mandate ISN’T removed, then the whole scheme might be overturned as unconstitutional. At least my way we only have to replace one part as opposed to the entire ACA.