A Tax By Any Other Name

-Submitted by David Drumm (Nal), Guest Blogger

Jack M. Balkin

Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, has a different perspective on the constitutionality of the Affordable Care Act. Professor Balkin argues that the individual mandate is a tax and the Constitution gives Congress the power to tax and spend money to promote the general welfare.

This necessarily and properly avoids the Commerce Clause.

While Congress and President Obama may not want to use the word “tax” for political purposes, for constitutional purposes, the Supreme Court has held that if a law raises revenues, it’s a tax. Americans have a choice, buy health insurance or pay a tax. The IRS has been charged with collection of the tax.

Like any tax law, this one has loopholes exemptions. People are exempt from paying the tax if they have health insurance through their employers, are on Medicare, are poor, are dependents, are in the military, live overseas, or it they have religious objections. The tax promotes the general welfare by making health services available and affordable.

Nor is the individual mandate a “direct tax“, such as property tax, or a capitation (“head tax”). The individual mandate is not a tax on the general population but only on those who don’t buy insurance and are otherwise not exempt. The individual mandate is a tax on behavior.

An interactive assessment of Judge Vinson’s decision can be found here.

H/T: NY Times, Amicus Curiae (Virginia v. Sebelius) (pdf).

57 thoughts on “A Tax By Any Other Name

  1. Hell…if you drink….they have a tax…if you smoke they have a tax….if you purchase a vehicle….at one time the total taxes could number in excess of 200….that was when lead was in the paint…

    Then again….some are getting accustomed to the term USER fees…I have never seen a junkie pay a user fee…well…not directly…

  2. OFF TOPIC

    I beg your collective forgiveness, but I have a very off-topic question to ask our sports-knowledgable legal minds regarding today’s game name.

    With the exception of golf, I do not follow sports. I’ve noticed in the last few years the increasing use of the phrase “The Big Game” instead of “Super Bowl”. Yesterday I heard commercial spot on a local radio station promoting an event their station is planning in conjunction with today’s game. In the opening line of the promo, the voice rather sarcastically says they’ve been consulting their attoneys who have strongly cautioned them against using the phrase “Super Bowl” in the naming of their event.

    Why would this be?

    ON TOPIC

    The idea that this is a fully Constitutional, easy to avoid tax was raised early on after the passage of the bill but then dropped. I’ve never understood why supporters haven’t been promoting this argument all along. I’m sure I’ve posted comments in the past regarding this interpretation. As Prof. Balkin notes, there is no question of the Constutionality of Congress’ authority to levy a tax or to provide an exemption to said tax.

  3. An excellent response to Balkin found in the University of Pennsylvania Law Review

    One highlight:

    “Professor Balkin’s claim that the absence of young and healthy individuals from the insurance pool imposes costs on persons who choose to be insured. There are, of course, many cases where conduct by one party imposes costs on others. For example, when a manufacturing operation produces pollution but does not pay for it, the costs thereof are borne by society as a whole. Economists describe these imposed costs as externalities.

    In an insurance pool in which young and healthy people are underrepresented, however, the premiums paid by the participating parties accurately reflect the underlying costs and risks. The uninsured, unlike the case with the pollution-producing manufacturing operation, do not impose any extra costs on the members of the pool. They simply refuse to subsidize the pool members. Equating a failure to subsidize with the imposition of a cost is illegitimate. It is essentially akin to claiming that a healthy person who refuses to donate one of his kidneys to a person dying of kidney failure is breaching some legal duty to that person. The reluctant kidney donor may be selfish, even churlish, but no more.”

    http://www.pennumbra.com/debates/debate.php?did=23

  4. Equating a failure to subsidize with the imposition of a cost is illegitimate.

    Not when those who fail to subsidize are the cause for the imposition of the cost. If the uninsured never sought health services this would be a valid argument. Such is not the case, however.

  5. Nal,
    the following sentence of yours is excellent, “This necessarily and properly avoids the Commerce Clause.” It flows like one of Elaines’s poems. Great article. I think Prof. Balkin has an interesting angle.
    Bob, Esq., When was the last time that an insurance premium was actually related to claims made and not profit desires?

  6. I am surprised that the Obama administration didn’t make the wording in the Bill such that it would be exempt from these types of challenges. This is one way, but I am sure that are others.

  7. AA,
    I don’t think that the language is the issue, in my mind at least. Whether or not the madate is constitutional will be the issue, more so then any severability clause issue. If we had been luckier and the public option was approved the Right would have challenged that on some trupmped up grounds. If it was a Medicare for all type plan we would still be hearing the howls about Socialism.

  8. Nal: “Not when those who fail to subsidize are the cause for the imposition of the cost.”

    You need to read the argument on that page.

  9. Bob: I understand the argument made in the excerpt you posted, but I’m not sure I see the relevance. From a constitutional point of view, what does it matter if it is an externality or a subsidy?

    In any case, the government frequently imposes a requirement to “subsidize” various unwanted or unneeded activities on its citizens. I neither wanted nor needed a war in Iraq, for example, and yet the government is making me pay for one. My taxes pay for roads whether I drive or not. I’ve never needed to call the Fire Department. I don’t have kids, but my taxes are used to pay for schools.

  10. FEES
    by

    William Penn Umbra

    I think that I shall never see
    A thing as lovely as a fee

    A fee that we can charge and swear
    Is not a tax and not unfair

    A fee is what we found is best
    And by the law is swiftly blest

    Once you have learned all the facts
    You must agree it’s not a tax

    Our budgets are made by Fools, you see
    Now all of you will pay our fee.
    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

  11. Jim: “In any case, the government frequently imposes a requirement to “subsidize” various unwanted or unneeded activities on its citizens. I neither wanted nor needed a war in Iraq, for example, and yet the government is making me pay for one. My taxes pay for roads whether I drive or not. I’ve never needed to call the Fire Department. I don’t have kids, but my taxes are used to pay for schools.”

    As I’ve been saying all along, you have to make this change through the tax rolls. It’s not the ends that are objectionable here; but the means which the authors of this goddamn Greek tragedy of a bill have chosen to employ.

    http://jonathanturley.org/2011/02/03/health-care-and-federalism-a-response-to-charles-fried/#comment-199253

  12. Quintus Arius,

    Really?

    You have no problem with the government claiming unlimited power for itself to regulate anything it wants simply by defining the object of said legislation as ‘commerce?’

    And assuming you got past that one, what about Equal Protection?
    What happens to the people of one state who may have to pay twice as much as the people of another?

  13. Obamcare isn’t necessary nor proper, nor a power listed in the enumerations (which general welfare refers to).

    General welfare is not a mystery (except to imbeciles, I suppose). What general welfare refers to is the words listed DIRECTLY below the words “general welfare” in the Constitution.

    And no where in that list (nor anywhere else in the Constitution) do the words “universal health care” exist or are implied.

    You would have to amend the Constitution to add this power to the federal government in order for general welfare, and thus, the necessary and proper to apply. Creating legislation is not the way we amend the Constitution, though the crooks and criminals in the Democratic Party think so.

    It only goes to show you that really stupid people can get really plum positions in life and it is who you know not what you know (unless you are a neurosurgeon).

    This is the plague of the modern liberal arts education now completely bereft of logic and wisdom. You get A’s for being an imbecile and you can probably get a Nobel Prize too. This, obviously, doesn’t work well if you plan to be a field engineer in electrical engineering.

    General welfare has a limited meaning and grant of power and cannot be separated from the enumerations or other applicable responsibilities of congress (unless, as I say, you are an imbecile). Okay, maybe you could be a liar.

    The necessary and proper clause especially refers to clearly defined powers that are outlined in the words previous to the words “necessary and proper”. (the bulk of Article 1, Section 8)

    The power of the federal congress is to be strictly limited in scope, but those powers which it does have the authority to exercise are to be exercised with full force vis a vis the necessary and proper clause.

    In other words, the necessary and proper clause does not apply to power the congress may not exercise and thus if forbidden to tax the people for.

    Powers congress may not exercise (because they are not listed) are, for example: Obamacare, social security, medicare/aid. *I support full funding of SS and Medicare until they can be abolished. Medicaid should be abolished immediately.

    These above programs are not listed enumerations or implied powers and thus are not what general welfare refers too. If we take Balkin’s viewpoint, the Federal congress has NO limit of power. No one in their right mind thinks the founders and framers threw off unlimited power just to create a government with unlimited power. Thus Balkin’s understanding of the General Wefare HAS to be in error.

    If a power isn’t specifically listed or implied it isn’t to be exercised let alone TAXED vis a vis the necessary and proper clause.

    Signed, Tootie, aka Tootie the Unfit, aka Group Tootie Inc.

  14. Oh yeah. Green Bay is winning.

    Go Green Bay.

    And if Steelers are winning.

    Go Steelers.

    I’m in it for the commercials.

  15. Oh oh. I was rude and ill-mannered. I wasn’t supposed to mention the Emperor Has No Clothes, and the scholar no brains.

    I’m incorrigible.

    Tootie the Unfit.

  16. Perhaps NAL has misread Balkin.

    In a Politico article from March of last year linked to below Balkin says of Obamacare:

    “Congress has the ability to force people to pay taxes. If it is a constitutional tax, then that is the ballgame.”

    He does, at least in that statement, leave the door open for the possibility that Obamacare is not constitutional.

    This would be the only intelligent position to have taken ahead of time. But it is to not add any new understanding to the debate to state that congress has the authority to tax. That is a no-brainer. The issue is does it have the authority to provide universal health care.

    It does not.

    http://www.politico.com/news/stories/0310/34970.html

  17. Very astute post, Nal.

    Here is a link to a short 8-page paper:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1584044

    Abstract: This brief essay argues that the recently-enacted tax on individuals who fail to purchase health insurance is constitutional. Contrary to the claims of more than a dozen state Attorneys General, this “individual responsibility” requirement is well within Congress’ taxing power under Article I, section 8. That the tax has a regulatory purpose is irrelevant, a point that has been settled law since at least 1953. Moreover, the tax is not subject to the constitutional requirement that “direct” taxes be apportioned, because (1) it is an income tax, and thus exempted from apportionment by the 16th Amendment; (2) even if not an income tax, it is nonetheless an indirect tax, since it is a tax on a particular use of property or government services; and (3) it is an indirect tax because it is not reasonably capable of apportionment.

  18. Vince,

    Good paper. It links to VCer Ilya Somin, who says:

    The example I like to use when I teach constitutional law is asteroid defense (which may not be covered by the “common defense” section of the Spending Clause, because that provision may refer only to protection against enemies, as opposed to natural phenomena).

    I’d like to take that class. I wonder if he considers disease a natural phenomenon.

  19. Here is a posting over at Volokh:

    http://volokh.com/2011/02/07/akhil-amars-defense-of-the-individual-mandate/#comment-1129176

    Quoting:

    epluribus says:

    Those who deny that the so-called “mandate” (in reality the “minimum essential coverage” requirement) is a tax are ignoring the actual provisions of the law. It is a tax, and an income tax, at that. The “minimum essential coverage” requirement is part of the Internal Revenue Code (see 26 U.S.C. Sec. 500)A). Failure to maintain “minimum essential coverage” subjects an income taxpayer to a “penalty” as measured by taxable income. The amount of the “penalty” rises from $95 per year in 2014 to $750 after 2016, but there is no “penalty” if the amount exceeds eight percent of a taxpayer’s household income, and no “penalty” if a taxpayer’s household income is under 100 percent of the poverty line. If a “penalty” is payable, it is paid with the taxpayer’s income tax return. As Charles Fried pointed out in his Senate testimony, there is no “minimum essential coverage” requirement (i.e., no “mandate”) for individuals who have no taxable income. The requirement arises only when the individual receives taxable income. The law explicitly provides that no other enforcement can be used to collect the “penalty”–no criminal prosecution or fines and no liens or levies. In other words, it can only be collected as part of the individual’s income tax obligation, and it can only be paid on the individual’s income tax return. It is a tax, and an income tax, at that.

  20. Nal and Vince,
    Well done. The discussion here reinforces my belief that the Affordable Care Act is constitutional. I do believe that the mandate passes on its own merits, but this just adds fuel to that argument that the bill will pass constitutional muster.

  21. There is no evidence that Obamacare is constitutional. There is only the hopes and wishes by the lawless criminal types among us.

    Signed,
    Tootie the Unfit.

  22. The tax promotes the general welfare by making health services available and affordable.

    It does nothing of the kind.

    It is a stretch to call the penalty a tax. It is a penalty for failure to purchase a service from a private company and you get nothing in return for it. People who end paying the penalty get no healthcare services from the federal government. It is not as if the federal government will begin compensating healthcare providers for treating the uninsured. The qualification requirements for the tax credit means many middle class families will not qualify and many that do will still not be able to afford healthcare.

    As has been pointed out many times, the credit will not cover the current cost of yearly premiums and those premiums have continued to rise (in the double digits) since the law was debated. While the credit is supposed to cover premiums only, there will still be other out-of-pocket costs which people will not be able to afford because the law did not address the runaway prices of private medical care and drugs. The law states only reasonable increases to premiums are allowed but it never defines reasonable. It will probably end up being like “reasonable compensation” in the tax code for business expense deductions, which means the sky is the limit.

    In terms of the poor being directed to Medicaid, good luck finding a provider that accepts Medicaid, as most do not.

    I could accept the tax angle if the law enacted a true tax, giving a credit to those that purchased private insurance, while directing the collected revenue into Medicare and allowed those people paying it to get the full benefits out of that system.

  23. Vince – thanks for that quote – I think it may end up being very important.

    I read through the 16th Amendment (Income Tax):
    The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

    I wasn’t sure about the wording of the final legislation, but it sounded like a very broad reading of the 16th would allow something of this sort.

    If that quote is correct, then it really does sound like the 16th could allow Congress to set up some sort of “everyone above this income level gets this annual tax, but we’ve created this exemption….” (In other words, it sounds like how the Romneycare fine/exemption works) If we can exempt the interest from a mortgage on a primary residence, then why can’t congress “incentivize” the purchase of health insurance?

  24. Hi Bob Esq.

    I was not saying that I have no problem with the government claiming unlimited power for itself… only pointing out that it is almost a fait accompli.

    Someday soon someone in Washington will add a rider to Obamacare to prohibit exhalation of CO2 into the atmosphere, and those who cannot afford to pay the fee or penalty will simply suspend all
    inhalation activity until such time as they are able to remit
    the required amount.
    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

  25. James Madison said:

    “If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union;
    they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads;
    in short, every thing, from the highest object of state legislation down to the most minute object of police,
    would be thrown under the power of Congress…. Were the power
    of Congress to be established in the LATITUDE CONTENDED FOR,
    IT WOULD SUBVERT THE VERY FOUNDATIONS, AND TRANSMUTE the very NATURE OF THE LIMITED GOVERNMENT established by the people of America.” (My emphasis)

    And so congress may do all the above things if congress takes NAL’s viewpoint of the meaning of the General Welfare clause.

    Therefore, the notion that Obamacare is constitutional vis a vis the GW clause is erroneous (because it is not an enumerated or implied power). The issue is the power to tax and spend for that which is allowed and that which is allowed has to be an enumerated or implied power. Obamacare is not enumerated or implied in the Constitution EXCEPT as being a power of the states or the people (vis a vis the 10th Amendment).

    You must amend the Constitution to permit Obamacare.

    But I don’t expect criminal types to get the knack of this law stuff.

    Professor Rob Natelson’s one hour audio lesson on the General Welfare clause:

    http://www.tenthamendmentcenter.com/2009/11/19/rob-natelson-a-lesson-on-the-general-welfare-clause/

  26. Alexander Hamilton has a different take on the General Welfare clause:

    Alexander Hamilton, Report on Manufactures

    A Question has been made concerning the Constitutional right of the Government of the United States to apply this species of encouragement, but there is certainly no good foundation for such a question. The National Legislature has express authority “To lay and Collect taxes, duties, imposts and excises, to pay the debts and provide for the Common defence and general welfare” with no other qualifications than that “all duties, imposts and excises, shall be uniform throughout the United states, that no capitation or other direct tax shall be laid unless in proportion to numbers ascertained by a census or enumeration taken on the principles prescribed in the Constitution, and that “no tax or duty shall be laid on articles exported from any state.” These three qualifications excepted, the power to raise money is plenary, and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defence and “general Welfare.” The terms “general Welfare” were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou’d have been restricted within narrower limits than the “General Welfare” and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

    It is therefore of necessity left to the discretion of the National Legislature, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt that whatever concerns the general Interests of learning of Agriculture of Manufactures and of Commerce are within the sphere of the national Councils as far as regards an application of Money.

    The only qualification of the generallity of the Phrase in question, which seems to be admissible, is this–That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot.

    No objection ought to arise to this construction from a supposition that it would imply a power to do whatever else should appear to Congress conducive to the General Welfare. A power to appropriate money with this latitude which is granted too in express terms would not carry a power to do any other thing, not authorised in the constitution, either expressly or by fair implication.

  27. Nal, good quote from Hamilton.

    Madison’s narrow interpretation of the commerce power was not shared by Congress, since he vetoed internal improvements legislation. The leaders who built the United States into a great nation rejected his views. Henry Clay and John Quincy Adams and others went ahead and built roads and canals, and others later created a national rail system through federal land grants. Today we have a national interstate highway system and a national system of airports and air traffic control. We have them because they are essential to commerce among the states, as well as with other countries.

    The framers never thought that commerce include rail or air travel. So is national regulation of air and rail travel also unconstitutional? Don’t be ridiculous.

    These cherry picked quotes from certain selected founders are leading inexorably to the absurd. If health care reform is unconstitutional, then so are national highways, canals, railroads and air transport.

    Here is Madison’s 1817 veto message holding the Eisenhower Five Star Interstate Highway system unconstitutional:

    “‘The power to regulate commerce among the several States’ can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress..

    “If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.”

    http://www.constitution.org/jm/18170303_veto.htm

    Madison was also a very weak President who neglected to spend any money on the defenses of Washington, leaving it open to attack in the War of 1812. He and Dolley had to scurry away from the invading British with the White House silver.

    Does anyone really want to put Madison’s narrow, antiquated ideas on the scope of the commerce power into actual practice?

  28. Good piece by Larry Tribe in the Times today:

    http://www.nytimes.com/2011/02/08/opinion/08tribe.html?partner=rssnyt&emc=rss

    He writes “the health care law is little different from Social Security. The court unanimously recognized [United States v. Lee, 455 U.S. 252 (1982)]
    in 1982 that it would be ‘difficult, if not impossible’ to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.”

    We heard the next portion here first from Nal:

    “Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.”

    Tribe’s conclusion supports my argument that health care legislation is a legislative issue for the elected representatives of the people, not the unelected judiciary:

    “There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.”

  29. Nal,

    All you’ve done is bolster why my argument that the monies must be collected through the general tax rolls is correct.

    Vince,

    Simply because new forms of commerce were created after the founding, it does not follow that exercising one’s right to live and breathe can be re-defined as a form of commerce simply to suit a particular agenda.

  30. The health care legislation does not regulate or tax anyone’s right to live and breath. To the contrary, it regulates commerce among the States and imposes taxes on that commerce. The law is necessary and proper to maintain the financial soundness of the health care system.

    As Charles Fried said, the U.S. Supreme Court has held that insurance is commerce, and the business of health insurance is commerce: “And if health insurance is commerce, then the health care mandate is a regulation of commerce, explicitly authorized by Article I, Section 8 of the Constitution.”

    Charles Fried IS and expert on the Constitution. He argued before the Supreme Court as Solicitor General in the Reagan administration, so he is a conservative, not a liberal, and is not a political partisan of the new law. He served as a Justice of the Massachusetts Supreme Judicial Court, has written books and articles, and taught for many years. It is interesting that his view comport with those of the liberal Larry Tribe.

    The pros and cons of the issues the taxing power and the commerce power, as well as the constitutional limits on congressional authority, were thoroughly canvassed in the Congressional Research Service Report for the Congress a year ago, http://www.ncsl.org/documents/health/Constitutionality.pdf

    The Tribe-Fried combination makes a very strong statement of the constitutional authority for the new law.

  31. Vince,

    Excellent article from Professor Tribe.

    Bob, Esq.,

    The monies are collected via the tax system. Some taxpayers, those who already have health insurance, are exempt via a tax loophole.

  32. Vince: “The health care legislation does not regulate or tax anyone’s right to live and breath.”

    I said that exercising one’s right to live and breathe cannot be re-defined as a form of commerce simply to suit a particular agenda. If the only condition precedent to invoke the commerce clause now is simple living and breathing, where did our government of limited powers go?

    I’m not a suckup, but I need to say it:

    Jonathan Turley is ‘dead on balls accurate’ on this issue.

    Vince: “To the contrary, it regulates commerce among the States and imposes taxes on that commerce.”

    That’s two different things Vince; you’re blurring the two and it’s indicative of the quality of thinking being applied.

    People are rushing into this argument without seriously considering the veracity or implications of their premises.

    From Tribe: “Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.”

    If the public picks up the tab, then why are unpaid medical bills the leading cause of personal bankruptcy? How is it that these citizens who were driven into bankruptcy and lost nearly everything must now account for this imaginary benefit of the public picking up their tab? How were they freeloading?

    And almost as an afterthought, what about the Equal Protection problem caused by different state regulations causing different costs for health insurance across the country?

    I’d never seen the ugly idiotic side of liberalism till this issue showed up. I honestly thought right wingers had the monopoly; I was wrong.

  33. Nal: “The monies are collected via the tax system.”

    So now you’re just going to ignore the exercise of power to force people to buy insurance from insurance carriers in their state so as to subsidize privately owned risk pools?

    Now, had we passed legislation creating a single payer system, and the monies were collected on an equally apportioned basis per capita, then we’d have no problem would we?

    But since you’re arguing for the exercise of power beyond that which was ever granted to the Fed, we do have a problem; don’t we?

  34. Bob,Esq.,
    I do want to address your question askng “How is it that these citizens who were driven into bankruptcy and lost nearly everything must now account for this imaginary benefit of the public picking up their tab?” You are correct that unpaid medical bills are one of the leading causes of bankruptcy, along with divorce. However, you are missing that a large percentage of those medical bankruptcies involved people who had medical insurance. This study actually had the number at 3/4 of the medical bankruptcies involved people with insurance. http://articles.cnn.com/2009-06-05/health/bankruptcy.medical.bills_1_medical-bills-bankruptcies-health-insurance?_s=PM:HEALTH Without the Affordable Care Act to remove preexisting conditions and lifetime caps, the bankruptcies are likely to continue,aren’t they?
    The people Tribe is referring to, as I understand it at least, are ones who don’t buy insurance and go to emergency rooms for their care.

  35. “The people Tribe is referring to, as I understand it at least, are ones who don’t buy insurance and go to emergency rooms for their care.”

    What’s the difference? If you’re predicating this legislation on the cost on the public, then show me the freeloading.

    And how is the Fed burdened by this sufficiently to lay claim to this hitherto unknown power?

    I’m all in favor of health care reform; I simply can’t abide this ‘sweep it under the rug via re-defining commerce’ mindless approach.

  36. Fried is not a liberal. The CRS Report discusses the equal protection issues. The rest of the post is opinion, so the readers here can judge for themselves.

  37. Bob,
    the freeloading are the people who do go to emergency rooms for care because they can’t afford insurance or don’t want to pay for insurance. They don’t have to file for BK in order to be a burden on the system. I have seen numbers between 30-45 million people who don’t have insurance. I will look further for numbers that reflect their impact. I just can’t type as fast you can!

  38. Bob, Esq.:

    So now you’re just going to ignore the exercise of power to force people to buy insurance from insurance carriers in their state so as to subsidize privately owned risk pools?

    How is that an argument on the constitutionality of the ACA?

    People have a choice, buy insurance and use the loophole, or pay the tax.

    Subsidizing the risk pool is the raison d’etre whether it is ACA or single-payer.

  39. Bob,
    Here is one estimate of the burden on all of us through increased premiums for people who are insured. “Families USA, which supports expanded health care coverage, found that about 37% of health care costs for people without insurance — or a total of $42.7 billion — went unpaid last year. That cost eventually was shifted to the insured through higher premiums, according to the group.” http://www.usatoday.com/money/industries/insurance/2009-05-28-hiddentax_N.htm Common Dreams put the cost at $125 Billion back in 2004. The Wall Street Journal in a 2008 article pegged the cost to taxpayers at 42.9 Billion. “The new study estimates the government pays 75%, or $42.9 billion, of the amount uninsured patients can’t pay — through Medicaid, the federal-state health-insurance for the poor and Medicare, the federal program for the elderly and disabled, as well as state and local taxes.” http://online.wsj.com/article/SB121963245880668193.html Those are some pretty big numbers Bob, but they don’t take into account donated services by doctors and hospitals and charities.

  40. Me: “So now you’re just going to ignore the exercise of power to force people to buy insurance from insurance carriers in their state so as to subsidize privately owned risk pools?”

    Nal: “How is that an argument on the constitutionality of the ACA?”

    Goes to the issue of specifically enumerated powers. There is no specifically enumerated power in the constitution to coerce people to buy something.

    Nal: People have a choice, buy insurance and use the loophole, or pay the tax.”

    Begs the question that the Fed has the power to force them.

    Nal: “Subsidizing the risk pool is the raison d’etre whether it is ACA or single-payer.”

    But the risk pool is outside the Fed’s control; thus not part of the tax coffers.

  41. “That cost eventually was shifted to the insured through higher premiums, according to the group”

    Guess what; that’s not a burden on the Fed.

    “The new study estimates the government pays 75%, or $42.9 billion, of the amount uninsured patients can’t pay — through Medicaid, the federal-state health-insurance for the poor and Medicare, the federal program for the elderly and disabled, as well as state and local taxes.”

    And what does that show? That shows what I’ve been saying all along; that Medicare and Medicaid are under funded and in need of reform.

    Further, you must qualify for Medicaid & Medicare; and once you do, you are ENTITLED to that coverage.

    Once again, the Fed is not ‘picking up the tab’ for people who are uninsured. Hospitals lose money and people go bankrupt.

  42. Paying FICA is paying a tax, collected by the fed and administered by the Fed.

    Telling citizens to enrich private corporations by purchasing their insurance is an exercise of power beyond right which no one has a right to.

  43. Bob,
    where does the increased funding for Medicare and Medicaid come from? The Feds. By the way, many of those hospitals are supported by state or local taxes and their taxes will increase when the hospital has to provide “free” service to the uninsured.

  44. Bob Esq:

    what if you had to buy it from the Federal government? Not a tax but an actual premium payment that you made every month to Federal Cross/Federal Shield for health care.

    Or would it actually be a tax even if you called it a premium?

  45. I don’t like Gore Vidal.

    But I think he gets it right about some of our presidents. Teddy Roosevelt was a thug and a brute, Bill Clinton was dangerous because of the surveillance police-state he established, and Alexander Hamilton was a traitor.

    Hamilton was indeed a traitor. No wonder FDR and the Democrats love him! Birds of a feather…

    Madison would come to recognize the Hamiltonian threat as being the very threat the founders threw off: abusive and arbitrary power. It would turn him away from the Federalists.

    Let’s look at the record.

    James Madison wrote to Andrew Sullivan in 1830. In his letter he is telling Sullivan that the general welfare clause triggered no great alarm or controversy during the conventions.

    “…these terms copied from the Articles of Confederation, were regarded in the new as in the old Instrument merely as general terms, explained & limited by the subjoined specifications; and therefore requiring no critical attention or studied precaution…”

    In other words Hamilton was making up crap.

    The term general welfare and defense as it appeared in the Articles of Confederation meant the same thing as it did in the new Constitution and in both cases the clauses were tied to the enumerated and implied powers.

    Hamilton was fantasizing about what the clause meant.

    Madison again:

    “That the terms in question [general welfare and defense] were not suspected, in the Convention which formed the Constitution of any such meaning as has been constructively applied to them, may be pronounced with entire confidence.”

    Madison tells Sullivan with complete “confidence” that the words in the GW cause harbored no suspected danger because the framers and ratifiers already knew the clause posed no danger in the Articles of Confederation. And the reason the clause and words posed no threat in that document was precisely because the GW clause and words were connected to specific powers.

    Madison continues:

    “For it exceeds the possibility of belief, that the known advocates in the Convention for a jealous grant & cautious definition of federal powers, should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions & definitions elaborated by them.”

    Here Madison says it is impossible to believe that the same people who were forming the constitution and FEARING an abuse of powers throughout the whole process of creating a new government would silently create a power which would allow the abuse they were attempting to forbid.

    In other words, the GW clause was and is to be harmless and does not grant powers in a way beyond how the power was exercised in the Articles of Confederation.

    Madison adds another proof:

    “that these terms were not understood in any sense that could invest Congress with powers not otherwise bestowed by the Constitutional Charter may be found in what passed in the first Session of the first Congress, when the subject of Amendments was taken up, with the conciliatory view of freeing the Constitution from objections which had been made to the extent of its powers, or to the unguarded terms employed in describing them. Not only were the terms “common defence and general welfare”, unnoticed in the long list of amendments brought forward in the outset; but the Journals of Congs. shew that in the progress of the discussions, not a single proposition was made in either branch of the Legislature which referred to the phrase as admitting a constructive enlargement of the granted powers…”

    Madison here is talking about the first congress after ratification. They were going to make any corrections to the Constitution which they had not noticed. The first Congress began to sift through the whole document specifically looking for words that might be misconstrued or lead to danger and abuse. And not one mention was made of the General Welfare and Defense clause. Madison’s point was that this was because it was viewed to be a power exercised like the power in the Articles of Confederation and could not be construed as an ENLARGEMENT OF GRANTED POWERS.

    Madison here admits congress has granted powers, but he admits that the GW clause does NOT enlarge them.

    Hamilton, FDR, and criminal types disagree.

    Obamacare enlarges them. Social Security enlarges them. Medicare and Medicaid enlarges them. Not only do these programs enlarge some powers, they enlarge some mythical powers which are not appointed to the federal government nor are listed in the Constitution.

    None of these programs have any connection to any of the subjoined (enumerated)powers. SS and Obamacare do not enlarge the power to coin money, or raise armies, or create a post office, and such. They are entirely new powers. And new powers cannot be added to the Constitution except by the amendment process.

    To do other wise is lawlessness and usurpation.

    Signed,

    Tootie, aka Group Tootie Inc., aka Tootie the Unfit.

  46. Chan L.: “what if you had to buy it from the Federal government? Not a tax but an actual premium payment that you made every month to Federal Cross/Federal Shield for health care. Or would it actually be a tax even if you called it a premium?”

    In that case it would be even for citizens for all 50 states and would resemble FICA. But again, it would have to be on the basis of income per the 16th

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